R v McCosker [2020] NSWSC 1822

Supreme Court New South Wales

Medium Neutral Citation: R v McCosker [2020] NSWSC 1822 Hearing dates: 15 December 2020 Decision date: 16 December 2020 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Imprisonment for 36 years with a non-parole period of 27 years Catchwords: CRIME - sentence - murder - joint criminal enterprise - deceased set on fire twice - second time to "finish him off" - offender instrumental in driving co-offender to get more petrol and then back to scene of the crime for the second burning - mental health disorders - drug use and dealing - no remorse - parity - equivalent culpability - no entitlement to discounts allowed to co-offender Legislation Cited: Crimes Act 1900 (NSW), s 47 Crimes (Sentencing Procedure) Act 1999 (NSW), s 30E(3) Cases Cited: R v Stone [2020] NSWSC 1485 Category: Sentence Parties: Regina Troy Lee McCosker Representation: Counsel: Mr C Maxwell QC (Crown) Mr T Healey (Offender)

Solicitors: Solicitor for Public Prosecutions Lambton Law Pty Ltd File Number(s): 2018/258473

Judgment 1. HIS HONOUR: Mr Troy Lee McCosker was found guilty by a jury on 23 October this year of the murder of Mr Wade Still at Whitebridge on 20 August 2018. 2. The maximum penalty for murder is imprisonment for the term of a person's natural life. There is also a standard non-parole period – in the circumstances of this case it is 20 years.

The offence 1. Mr McCosker (the offender) was aged 49 and Wade Still was aged 24 at the time of the offence. They both lived in the Belmont-Whitebridge area just south of Newcastle. Mr Still was a drug user and the offender was a drug user and low-level supplier. In fact, illicit drug use was something almost all of the principal participants in this case had in common. 2. There was evidence in the trial of animosity between the offender and Mr Still over an extended period. In particular, there was an incident in February 2018 when Mr Still "did a run in" (committed a home invasion) at the place where the offender was then living, in the course of which the offender was struck on the head and Mr Still stole cash, drugs and some keys. When told by a friend that he could not behave like this, Mr Still replied, "I'm Wade Still. I can do whatever I want. I will kill their life." 3. The offender responded by committing a home invasion at the home where Mr Still was then living. Property that had been stolen from the offender was recovered by force and Mr Still sustained significant injuries. The Crown Prosecutor described it in his closing address as Mr Still having "received a flogging". 4. This animosity worsened when Mr Still came to believe that the offender had engaged in an affair with Tegan Wilcox, Mr Still's partner, whilst Mr Still was in gaol. [1] He was in gaol from 26 March to 5 July 2018. A cycle of stealing property from the offender continued, including with the theft of a bag containing various items from the offender on 17 August, only a couple of days before Mr Still was murdered. 5. The offender attempted to downplay the extent of the animosity on his part. For example, he said in a police interview, "I've got no problems with Wade … He wasn't a bad little kid … He's only a young fellow … He's just a little rascal". When challenged about such statements in the trial, the offender maintained that they were a true reflection of his attitude towards Mr Still through until the time of his death. [2] The jury may not have accepted that. 6. Mr Still was looking for a car trailer in the days leading up to 19 August 2018. He was buying a car from his mother and needed to transport it from her home to a place where he was intending to have work done on it. He made enquiries of a number of people including Mr Stone. [3] 7. Mr Stone gave evidence that he had known Mr Still for at least 15 years. He said in his evidence that it was a "love/hate relationship". He explained that Mr Still annoyed people because he stole "off everyone" but "he was a young fellow trying to grow up" and Mr Stone said, "I tried to look after him a bit". Mr Stone was also a drug user in 2018. [4] 8. Mr Stone was aware of Mr Still's theft of the offender's bag and contents on 17 August and he involved himself in trying to retrieve them. Ultimately the items were restored to the offender; how that occurred being of no present relevance. [5] 9. Sometime on 19 August, Mr Still contacted Mr Stone who agreed to show him the location of a car trailer that belonged to Mr Stone's father-in-law. The idea, according to Mr Stone, was for him to show Mr Still the location of the trailer so that if it were available for Mr Still to borrow he would know where to retrieve it. [6] Mr Stone told Mr Still where to meet him and that he should bring some petrol with him. Mr Stone needed petrol because the trail bike he was using was low on fuel. [7] 10. Mr Still purchased fuel and then went to the place nominated by Mr Stone to meet up with him, a place referred to as Ringal Valley, near Windale. [8] 11. From there, Mr Stone and Mr Still went off on the trail bike with Mr Still as pillion passenger carrying a container of fuel. They travelled north on the Pacific Highway and turned right onto Oakdale Road. According to Mr Stone's evidence, the bike ran out of fuel in the vicinity of a disused quarry on Oakdale Road. They pushed the bike off the road and into the quarry. For reasons which are not entirely clear, they proceeded 250 metres into the quarry away from the roadway before stopping to refuel the bike. [9] Mr Stone's explanation that they were looking for some object to lean the bike up against so that they could refuel it is difficult to understand. 12. It was very cold. Mr Stone gave Mr Still a jacket; he said he was able to spare it because he had two because he was riding the bike. Mr Still gathered some grass and lit a fire. In doing so, he put some fuel from the fuel container into a bucket [10] in order to tip onto the fire to help start it. The pair had a cigarette as well as some Xanax tablets supplied by Mr Still. [11] 13. After standing around for about 10 or 15 minutes, Mr Stone went to put some more grass on the fire. While he was doing so he perceived that Mr Still was going to splash him with something that he thought was petrol. In response, Mr Stone kicked the bucket that still contained some fuel towards Mr Still. Mr Still was about 3 to 5 metres away from him and beside the fire. [12] 14. Mr Stone said that he saw "just a big flame, that was it". He rode off on the trail bike. He rode to the nearby home of a friend in Ocean Street, Dudley. There he sent texts and tried to make a number of calls until ultimately he was able to make contact with the offender. [13] 15. The events in the quarry occurred sometime between about 11.30pm and midnight. Meanwhile, at about 11.40pm in the Windale area, the attention of police had been drawn to the offender driving his Toyota Landcruiser fast and with no headlights. It was stopped and searched and a small quantity of cannabis was found. [14] The offender said he was given a move on direction. [15] 16. At about 12.10am, Paul Finlay and Kathryn Holt were driving past the quarry in Oakdale Road and saw a young man, obviously Mr Still, dishevelled, seemingly covered in mud, screaming, yelling and waving his arms. [16] 17. Mr Stone managed to make contact with the offender at 12.31am. According to the offender's evidence, after the police had allowed him to leave he drove (seemingly as a complete coincidence) to the quarry in Oakdale Road. He entered the quarry in order to smoke some heroin for pain relief purposes. [17] He told police in an interview on 21 August 2018 that he had pulled into the quarry in order to tidy up his car after the police search. [18] Putting that discrepancy aside, the offender agreed to give Mr Stone a lift and drove to Dudley to pick him up. [19] 18. Mr Stone told the offender that he needed to talk to him because "something had just happened". The offender drove them to the Whitebridge Cemetery. It may be inferred from the CCTV evidence that they were in the cemetery for some period between about 12.37 to 12.47am. 19. Mr Stone told the offender what had just occurred at the quarry: "I said that … me and Wade were just in the bush, I said, and I think I've kicked petrol at him and, you know, could be in a bad way". [20] 20. The pair then drove to the quarry. The offender slowed the vehicle and turned to drive into the entrance but then pulled away back to the roadway. Mr Stone asked, "What are you doing?" The offender replied, "Didn't you see him on the ground?" (It may be inferred from the descriptions given by passing motorists that the offender must have seen that Mr Still was in quite a helpless condition.) Mr Stone did not see anyone, but he asked: "Should I ring an ambulance or should I finish him off?" 1. Mr Stone could not recall whether the offender said anything. Neither of them called an ambulance. [21] 2. The offender drove away from the quarry. Mr Stone used the offender's phone to ring a friend, Jasmine Kuczynski, and asked her if she could provide him with a container of fuel. She agreed. Mr Stone arrived in a car driven by someone else with whom she did not speak. She went out to the front of her home with a fuel container and gave it to Mr Stone. [22] 3. At about 12.50am, Ms Emily Barrett was driving along Oakdale Road and saw someone hobbling and staggering near the quarry. [23] This must have been Mr Still but whether it was before or after the offender and Mr Stone had been there is unclear. 4. At 12.55am, Mr Daniel Stace was driving by and heard a high-pitched, muffled call for help. There was no fire in the area. He slowed down but did not hear the noise again. [24] 5. The offender and Mr Stone arrived back at the quarry. The offender stopped on the roadway and Mr Stone alighted with the fuel container. He went 5 or 10 metres behind the vehicle. He poured petrol on or near Mr Still and ignited it. He did not think that he poured petrol directly onto Mr Still but accepted that there was a chance that he did. (I am satisfied beyond reasonable doubt that he did; evidence of Mr Still's DNA being found on the fuel container and its spout as well as a dying statement by Mr Still confirm it.) Mr Stone agreed that there was a big flame when he lit the fire, like "whoosh and up she went". He got back into the offender's car and they drove off. [25] 6. An issue was raised in the closing address of counsel for the offender as to whether Mr Still was burnt at all on this occasion. The jury were directed as to causation and the relevance of an alternative offence being charged in the indictment. [26] That was in the event that the jury were not satisfied that there was a second burning which contributed to the death of Mr Still. Clearly, the jury were satisfied beyond reasonable doubt that there was a second burning that had that result. 7. The offender and Mr Stone drove to a location referred to as Rainbow Sands, otherwise the Belmont Wetlands. There his vehicle stopped due to some electrical problem. Mr Stone alighted and called Ms Kuczynski with a view to getting a lift home. [27] The offender waited until two friends arrived to rectify the problem. 8. Meanwhile, the driver of a taxi on Oakdale Road saw the fire no more than two minutes after it had been lit. He initially thought it was a grass fire and contacted the fire brigade but when he became aware that a person was involved, he called the ambulance. This triple 0 call was very chilling evidence for the jury to have to hear, given the wailing sounds of pain of Mr Still that could be heard in the background. [28] 9. The ambulance officers gave appropriate attention to Mr Still and arrangements were made to air lift him to Royal North Shore Hospital in Sydney. Tragically, he died en route and the flight was diverted to John Hunter Hospital. 10. An autopsy examination revealed that Mr Still had died of "effects of fire". There was a mixture of partial thickness and deep burns to 90 per cent of his body. Because of the extensiveness of the burning, the forensic pathologist was unable to say one way or the other whether petrol had been poured onto the body. It was also why she was unable to say whether there had been one or more than one burning. [29] 11. The cross-examination of Mr Stone by counsel for the offender during the trial resulted in concessions being readily made that the offender had not told Mr Stone what to do and nor had he verbally encouraged him in any way. Equally, however, Mr Stone appears not to have said anything more to the offender as to what they should do. It follows that the offender willingly accepted the second part of Mr Stone's suggested course of action, namely to "finish him off". He needed no convincing. Indeed, the Crown Prosecutor put to the jury in closing address that the murder would not have occurred without his actions. He was instrumental in taking Mr Stone to the home of Ms Kuczynski to obtain the petrol and returning him to the quarry where he sat in his car whilst Mr Stone did what he did. 12. Counsel for the offender sought to make much of the fact that the offender was not the one who poured the petrol and ignited it. The answer, of course, is that he did not need to. The Crown Prosecutor pointed out in submissions on sentence that it was the offender who had the motive to cause harm to Mr Still, not Mr Stone. Mr Stone presented the offender with a way to vent his animosity towards Mr Still. The offender seized the opportunity and used Mr Stone as the means of achieving a result that met his satisfaction. All the offender had to do was take Mr Stone where he could obtain some petrol, return him to scene and there let him carry out what he had proposed. I am satisfied that is what occurred. 13. The Crown case at trial was summarised by the Crown Prosecutor in his closing address: "The Crown case is not that he McCosker suggested it, it is that he became a part of it once the suggestion had been made. Not only did he go along with it, but he facilitated it in the sense that, without his participation, it would not have happened. It is on this basis the Crown puts its case and in law, the law provides this as an appropriate and proper basis for you to convict Mr McCosker of the murder of Wade Still."