Towney v R

1. [1]

   MITCHELMORE JA: On 10 July 2021, the applicant, Samuel Towney, stood trial with a co-accused, Jason McKay, on an indictment averring the following counts, each of which was alleged to have been committed on 9 October 2018 at a farm in Condobolin, New South Wales:

   1. (1)

      Count 1: With intent to murder Paul Crockett, set fire to the dwelling house in which Paul Crockett was bound and gagged, contrary to s 30 of the Crimes Act 1900 (NSW).

   2. (2)

      Count 2 (alternative to count 1): Intentionally damaged the dwelling house with the intent by that damage to endanger the life of Paul Crockett, contrary to s 198 of the Crimes Act.

   3. (3)

      Count 3: By means of fire, intentionally destroyed the free-standing buildings and all personal chattels within, being the property of Marilyn Ham and Paul Crockett, contrary to s 195(1)(b) of the Crimes Act.

   4. (4)

      Count 4: While knowing persons were home and while armed with a dangerous weapon, namely a double-barrelled shotgun, did break and enter the dwelling house of Paul Crockett and commit a serious indictable offence therein, namely, wound Paul Crockett with intent to cause grievous bodily harm, contrary to s 112(3) of the Crimes Act.

   5. (5)

      Count 5 (alternative to count 4): While in company of other persons, recklessly wounded Paul Crockett, contrary to s 35(3) of the Crimes Act.

   6. (6)

      Count 6: While in company of other persons, detained Paul Crockett without his consent and with the intention of obtaining an advantage, namely, psychological advantage, and at the time of the detaining actual bodily harm was occasioned to Paul Crockett, contrary to s 86(3) of the Crimes Act.

   7. (7)

      Counts 7, 8, 9 and 10: While in the company of other persons, detained each of Ms Ham, FB, FJ and FR without consent and with the intention of obtaining an advantage, namely, psychological advantage, contrary to s 86(2)(a) of the Crimes Act.

2. [2]

   A further count on the indictment involved Jason McKay alone. It related to an attempt to evade police later on 9 October 2018 (count 11).

3. [3]

   The farm at Condobolin was owned by Paul Crockett and Marilyn Ham, both of whom were present on 9 October 2018. Also present at the farm that day were FB, the estranged wife of Jason McKay, and her two teenage sons, FJ and FR.

4. [4]

   The Crown alleged that the applicant, Jason McKay, and Jason’s son, Adam McKay, drove from Newcastle to Condobolin on the evening of 8 October 2018, arriving in the early hours of 9 October 2018. At approximately 5.30am, the three men gained entry to the main house on the farm by breaking a sliding glass door at the rear of the house. The applicant was armed with a double-barrelled shotgun, Adam McKay was armed with a steel bar, and Jason McKay was armed with a tomahawk. Shortly after entry, Adam McKay and Jason McKay repeatedly struck Paul Crockett’s head with their weapons, seriously wounding him. The men then detained Mr Crockett, Ms Ham, FB, FJ and FR for a period of approximately four hours. The applicant spent most of that time stationed outside the door of the bedroom that the teenage boys, FJ and FR, were occupying.

5. [5]

   At around 10.10am, Jason McKay left the farm in his vehicle, taking Ms Ham, FB and her two children with him and leaving the applicant and Adam McKay at the farm with Mr Crockett. The Crown alleged that sometime after Jason McKay left, the applicant struck Mr Crockett with the shotgun as he (Mr Crockett) attempted to hide jewellery in the bathroom. Mr Crockett was then dragged from the bathroom to the lounge room and tied to a chair in front of the chimney by Adam McKay, while the applicant placed a gag over his mouth. The Crown alleged that the applicant poured fuel throughout the main house and, shortly after the applicant and Adam McKay left the house, a front window was smashed and the house was set alight. Mr Crockett managed to get one arm free and crawled towards the back of the house while still attached to the chair, taking a knife from the kitchen as he went. Exiting the house through the broken sliding door, he cut himself free from the chair, reached a loader parked near the house, and drove through a series of fences to a neighbour’s home. The fire destroyed the house.

6. [6]

   Adam McKay entered pleas of guilty and was sentenced in separate proceedings. On 10 June 2021, the applicant and Jason McKay were arraigned and entered pleas of not guilty to all counts on the indictment. On 11 June 2021, before the Crown opened, the applicant pleaded guilty to count 3.

7. [7]

   On 20 July 2021, the jury found the applicant guilty on count 1, count 5 (finding him not guilty on count 4) and counts 6-10. The jury convicted Jason McKay on counts 5-10, as well as the additional count 11. However, the jury found Jason McKay not guilty on count 1, the alternative count 2, and count 3, as well as count 4.

8. [8]

   The applicant seeks leave to appeal against his conviction on count 1 alone. He also seeks leave to appeal against the aggregate sentence that Judge Hoy imposed, on 7 December 2022, of 26 years imprisonment commencing 10 February 2019 and expiring 9 February 2045, with a non-parole period of 17 years expiring 9 February 2036.

9. [9]

   The basis of the applicant’s appeal against his conviction was the jury’s verdict of not guilty on count 1 in relation to Jason McKay, with two grounds of appeal:

   1. (1)

      The verdict of guilty on count 1 was unreasonable because it was inconsistent with Jason McKay’s verdict of not guilty on count 1, in circumstances where the Crown case was that the applicant was a party to a joint criminal enterprise that Jason McKay instigated and that was formed before Jason McKay left the farm.

   2. (2)

      The trial miscarried because the trial judge failed to direct the jury that it must return a verdict of not guilty against the applicant if it returned a verdict of not guilty for Jason McKay.

10. [10]

    The applicant’s sole ground of appeal against the sentence is that the sentence was manifestly excessive.

11. [11]

    The applicant requires leave to appeal on both of the conviction grounds as neither involves only a question of law: Criminal Appeal Act 1912 (NSW), s 5(1)(b). In relation to ground 2, the applicant also requires leave because his counsel at trial did not ask for the direction that he now contends the trial judge should have given: Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15.

12. [12]

    Additionally, the applicant requires a substantial extension of time pursuant to s 10(1)(b) of the Criminal Appeal Act and r 3.5(5) of the Supreme Court (Criminal Appeal) Rules. He filed a notice of intention to appeal within the prescribed period but did not file the notice of appeal until 20 March 2025, 1 year and 2 months after the time limit expired. The Crown opposed the extension of time in the interests of finality and on the basis that the grounds of appeal lacked merit, submitting that the evidence on which the applicant relied in support of the extension of time only explained the delay to April 2024, and not the further 11 months to March 2025.

13. [13]

    There is force in the Crown’s submission that the affidavit of the applicant’s solicitor, Raed Rahal, affirmed 12 June 2025, did not satisfactorily explain the delay between April 2024 and February 2025 (when appeal documents were first filed). The observations of Leeming JA and Rothman J in R v Evans; Evans v R [2024] NSWCCA 245 (“Evans”) at [140], about the obligations of legal representatives in legally-aided criminal appeals, are pertinent. Ultimately, however, as was also the case in Evans (as their Honours noted at [141]), the delay in the present case is in no way the fault of the applicant. Accordingly, I would grant the extension of time.

14. [14]

    I will address the conviction appeal, which is the subject of grounds 1 and 2. In relation to the sentence appeal (ground 3), I have had the significant advantage of reading in draft the reasons of Hamill J, with which I agree.

15. [15]

    For the reasons set out below, the grounds of the conviction appeal are premised upon an incorrect characterisation of the Crown case on count 1. As Jason McKay had left the farm by the time the conduct comprising counts 1-3 occurred, the Crown case against him relied on the existence of a joint criminal enterprise between Jason McKay, the applicant and/or Adam McKay by which they agreed to murder Mr Crockett, in furtherance of which Jason McKay performed a number of acts before he drove away from the house. The Crown also relied on the existence of the agreement in relation to the applicant on count 1 but for a more limited purpose, in circumstances where the applicant and Adam McKay engaged in the physical acts the subject of the charge but it was not clear which of them ignited the fire that engulfed the house. Contrary to the applicant’s central contention, the Crown did not run an “all or nothing” case on count 1 against the applicant that relied on Jason McKay’s involvement in the agreement as a fundamental element on count 1. Further, and in any event, it did not follow from the jury’s verdict of not guilty as against Jason McKay that the jury must have rejected the existence of the agreement between the three men to murder Mr Crockett.

16. [16]

    The verdicts that the jury delivered on count 1 were neither legally nor factually inconsistent. The directions that the trial judge gave the jury reflected both the case that the Crown put and the case that the applicant put in response. I would grant leave to appeal on ground 1 but would dismiss the appeal. In view of the careful manner in which the applicant’s trial counsel conducted the trial on the applicant’s behalf and r 4.15 of the Supreme Court (Criminal Appeal) Rules, I would refuse leave to appeal on ground 2.

The conviction appeal

1. [17]

   The applicant’s grounds of appeal focused upon how the Crown ran the case against the applicant on count 1 and how the jury was directed on that count. When asked at the outset of the appeal hearing to clarify whether the alleged inconsistency of the verdicts rested solely on joint criminal enterprise being fundamental to the Crown case on count 1 against both the applicant and Jason McKay, or whether he was also raising factual inconsistency, counsel for the applicant stated that he was raising both. Addressing the grounds together, the applicant’s central contentions may be summarised as follows:

   1. (1)

      The Crown opened and closed its case on the basis that the existence of an agreement between Jason McKay and the applicant to murder Mr Crockett was fundamental to the jury’s consideration of count 1 as against both accused. The Crown took an “all or nothing” approach in this respect, with its case against the applicant and Jason McKay necessarily requiring the jury to accept that Jason McKay was the ringleader and instigated the agreement between the three men to murder Mr Crockett.

   2. (2)

      The Crown did not submit that the jury could return a verdict of guilty for the applicant on count 1 even if the jury was not satisfied about Jason McKay’s guilt on that count. Rather, in closing address, the Crown made it clear that the jury could either return verdicts of guilty against both the applicant and Jason McKay or return verdicts of not guilty for both.

   3. (3)

      The applicant acknowledged that the Crown, in closing address, expressly disavowed the need to prove an agreement in relation to the applicant on count 1. However, he submitted that this was said “in passing and for the first and only time”, and in circumstances where the Crown did not submit that the jury could accept parts of Mr Crockett’s evidence and reject other parts. The Crown’s position in this regard was consistent with Mr Crockett’s unequivocal and, in the applicant’s submission, effectively indivisible evidence.

   4. (4)

      The applicant’s trial counsel met the Crown case on count 1 on the basis that, on Mr Crockett’s evidence, Jason McKay was the sole instigator of the agreement to murder him. That reflected the Crown case, which did not allege that the jury could find the applicant guilty on count 1 on the basis of a joint criminal enterprise between only the applicant and Adam McKay that was formed after Jason McKay left.

   5. (5)

      The trial judge’s directions on count 1 were not consistent with the way the Crown put its case, in particular that it was essential that the agreement to murder Mr Crockett was formed between the three men before Jason McKay left the farm and at his instigation. The applicant took issue in particular with the trial judge’s directions to the effect that the jury could find an agreement as between the applicant and Adam McKay, without also including Jason McKay.

   6. (6)

      As the evidence of Mr Crockett about Jason McKay’s actions before he left the house was critical to the Crown case against the applicant, the jury could not reject his evidence, as it must have done in order to find Jason McKay not guilty on count 1, and at the same time find the applicant guilty. Consistently with this view of the Crown case, the trial judge gave a Murray direction in relation to the evidence of Mr Crockett, but did not expressly direct the jury that it could accept parts of Mr Crockett’s evidence and reject other parts. Rather, his Honour directed the jury that “unless you are satisfied that Mr Crockett is both an honest and reliable witness in the account he has given, you cannot therefore find either accused guilty”.

2. [18]

   It followed that the verdicts as against the applicant and Jason McKay on count 1 were inconsistent, being ground 1 of the appeal. Specifically in relation to ground 2, the applicant submitted that in light of how the Crown ran the case, the trial judge should have directed the jury that it must return a verdict of not guilty for the applicant if it returned a verdict of not guilty for Jason McKay.

3. [19]

   As the applicable legal principles regarding inconsistency of verdicts were not in dispute, it is sufficient to refer to the Crown’s summary of those principles in its written submissions:

   1. (1)

      There is a difference between a “legal or technical inconsistency”, which arises where two verdicts cannot stand together in law (MacKenzie v The Queen (1996) 190 CLR 348 at 366 (Gaudron, Gummow and Kirby JJ); [1996] HCA 35 (“MacKenzie”)), and factual consistency, which is concerned with “logic and reasonableness”: MacKenzie at 366.

   2. (2)

      Appellate courts should be reluctant to accept that verdicts are inconsistent. If there is a way to reconcile the verdicts, the court should accept that approach: MacKenzie at 366; MFA v R (2002) 213 CLR 606; [2002] HCA 53 (“MFA”) at [85] (McHugh, Gummow and Kirby JJ).

   3. (3)

      The appellate court should recognise that a jury may not always act strictly in accordance with logical considerations, and may give effect to their innate sense of fairness and justice: MacKenzie at 367, MFA at [85]. The court should interfere only if the verdicts are an “affront to logic and commonsense” suggesting that the jury’s performance was compromised: MacKenzie at 368; MFA at [86].

   4. (4)

      It must be borne in mind that the jury will be instructed about the heavy onus of proof and the significance of their verdict, and an acquittal does not necessarily imply a rejection of the evidence: MFA at [34].

   5. (5)

      It is for the applicant to show that any inconsistency rises to a level necessitating appellate intervention: Still v R [2010] NSWCCA 131 at [58]; Miller v R [2014] NSWCCA 34 at [56]; Darby v R [2016] NSWCCA 164 at [140]; Tsaccounis v R [2016] NSWCCA 163 at [116], quoting TK v R (2009) 74 NSWLR 299; [2009] NSWCCA 151 at [6] (McClellan CJ at CL).

   6. (6)

      In scrutinising the evidence and assessing the reasonableness of the verdicts, the Court should be conscious of the jury’s advantage in hearing the case as it was presented: MFA at [23]; ML v R [2015] NSWCCA 27 at [46].

4. [20]

   The manner in which the applicant sought to characterise the Crown case against the applicant at trial on count 1 did not reflect the manner in which the Crown put the case against the applicant and Jason McKay on that count.

5. [21]

   Stepping back momentarily, and as noted above, the applicant and Jason McKay were charged with a series of offences arising from the events of 9 October 2018. The Crown case was that the applicant met Jason McKay and Adam McKay by chance at Mega Cash Pawn Brokers in Mayfield on the afternoon of 8 October 2018. The Crown opened its case to the jury on the basis that at some point between them meeting at the pawn brokers and Jason McKay leaving the farm just after 10am on 9 October 2018, Jason McKay, Adam McKay and the applicant formed an agreement to engage in criminal activity. The Crown relied upon this agreement in circumstances where it could not prove that each of, relevantly, Jason McKay and the applicant, committed each of the physical acts that were the subject of the specific counts on the indictment. As the Crown said in opening:

6. [22]

   The Crown case was that the agreement could be inferred from the conduct it alleged against Jason McKay and the applicant, which included the following:

   1. (1)

      Just before 6pm on 8 October 2018, the applicant sent a text message to Jason McKay in which he referred to going “fishing” (which the Crown said was code) and stated that he would be waiting at the place where he saw Jason and Adam earlier that day.

   2. (2)

      At approximately 11.48pm on 8 October 2018, the three men were captured on CCTV at a service station in Kurri Kurri, travelling in Jason McKay’s Land Cruiser. During that stop, Adam and Jason McKay exited the vehicle and purchased 178.01 litres of unleaded petrol and 42.05 litres of diesel, some of which was used to refuel the vehicle (which took unleaded petrol) and the remainder of which was placed in a number of jerry cans stored in the rear of the Land Cruiser (Ex V (Agreed Facts) at [15]).

   3. (3)

      The three men arrived at Condobolin in the early hours of 9 October 2018 (Ex V at [18]). They parked some distance from the farm and made their way to the main house sometime between 5.30 and 6:00 am. At that time, the five complainants were present at the property (Ex V at [19]).

   4. (4)

      As I noted above, each of the men was armed. They gained entry to the house by smashing the back glass sliding door. Mr Crockett went to investigate and came upon two of the men in the hallway near the bedroom he shared with Ms Ham, whom he identified as Jason McKay and Adam McKay.

   5. (5)

      Adam McKay struck Mr Crockett in the head multiple times with the steel bar, while Jason McKay struck him in the head with the back of the tomahawk, causing three full thickness lacerations to the top of his head through which his skull was visible. It was not disputed at trial that the lacerations to Mr Crockett’s head amounted to wounds (Ex V at [30]).

   6. (6)

      Jason McKay entered the bedroom in which FB had been sleeping, threatened to kill her and demanded to know whether she was seeing another man.

   7. (7)

      Jason McKay instructed the applicant and Adam McKay to collect all phones and keys from the complainants, which they did.

   8. (8)

      Mr Crockett bled profusely from his head wounds, with Ms Ham attempting to stem the bleeding with towels and then a dressing gown which she tied around his head. He was initially sat on a chair at the dining table located in the lounge room, but after he slid off the chair onto the floor he was dragged to a nearby lounge. Ms Ham repeatedly begged Jason McKay to call an ambulance. He did not do so.

   9. (9)

      The applicant spent most of his time stationed at the door to the bedroom occupied by the two boys, armed with the shotgun. Occasionally, he escorted one of the boys to the bathroom. At one point, Ms Ham made the applicant some toast, and the applicant placed the plate in a bag saying he did not want to leave any evidence.

   10. (10)

       Jason McKay left the main house with FB a number of times over the course of the morning, including to retrieve the Land Cruiser from where it was parked.

   11. (11)

       On their return, the children were told to go to the front of the house with their packed bags. Jason McKay also instructed Ms Ham to get a bag and go to the car, which she did, reluctantly and out of fear.

   12. (12)

       Before he left the property, relevantly to counts 1 to 3, the Crown alleged on the basis of Mr Crockett’s evidence that Jason McKay:

   13. (13)

       Jason McKay directed FB, Ms Ham and the two boys into the Land Cruiser. Jason McKay got into the vehicle and drove off sometime after 10.00am with those four individuals, leaving the applicant and Adam McKay at the house with Mr Crockett (Ex V at [23]-[24]). [AB 167]

7. [23]

   The Crown alleged that after Jason McKay left, Mr Crockett went to the bathroom, where he removed some items of jewellery and hid them in a toilet roll holder. The applicant burst in and told him to hurry up, smashing the shotgun down towards the side of Mr Crockett’s head. As Mr Crockett had put his hand up defensively, his hand took the brunt of the contact, although the breech end of the shotgun scratched the side of his head and caused further bleeding. Mr Crockett’s DNA was found from blood swabs performed on the inside and outside of the shotgun barrel (Ex V at [53]).

8. [24]

   Adam McKay dragged Mr Crockett back into the lounge room and tied him to a chair in front of the chimney with blue and yellow rope. However, when his hands were being tied, Mr Crockett was able to get a finger of one hand under the rope. Fearing he was about to burn to death, Mr Crockett asked Adam McKay to shoot him, to which Adam replied in words to the effect of, “No, my dad Jason wants you fucking burned”.

9. [25]

   The Crown alleged that Mr Crockett saw the applicant running around the house splashing petrol from the jerry cans, including in the lounge room, the bedroom where the boys had been, and the rooms at the back of the house. Mr Crockett, who had worked on diesel machinery for about 40 years, gave evidence that he recalled smelling diesel. The applicant was also alleged to have gagged Mr Crockett by placing a red and white rag around his face.

10. [26]

    The applicant and Adam McKay left the house by the front door, locking the door behind them. The last words the applicant said to Mr Crockett were, “Have a good day”. Mr Crockett heard laughter, followed by the sound of the window of the bedroom where FB’s sons had slept being smashed. That room exploded into flames.

11. [27]

    Mr Crockett managed to get one of his arms free of the rope. With his other arm still tied to the chair, he dragged himself to the kitchen where he grabbed hold of a large carving knife. Mr Crockett then crawled to the back of the house, exiting through the smashed back sliding door. By that time, the back of the chair to which he was tied was on fire. Mr Crockett was able to cut the rope off his other hand using the knife he had taken from the kitchen. He crawled away from the house towards a loader, which was parked in the vicinity with the key in the ignition. Mr Crockett drove the loader through a number of fences to his neighbours’ property, and emergency services were called.

12. [28]

    Jason McKay had left the farm by the time the house was set alight with Mr Crockett still inside and tied to a chair. Accordingly, the Crown case against him on count 1, count 2 (in the alternative to count 1), and count 3 relied on the existence of an agreement between the three men to murder Mr Crockett or to set the house alight with him inside. The Crown Prosecutor explained this to the jury at an early point in his opening:

13. [29]

    In his written submissions on the appeal, the applicant emphasised the first sentence, submitting that the Crown did not ultimately explain how the concept explained in the above paragraphs applied “to a lesser extent” to the applicant. As will become clear, I do not accept that submission. However, the second sentence that I have emphasised is of greater significance. It highlights the difference between the Crown case on count 1 against Jason McKay, who was not present at the time of the physical acts constituting the offence the subject of that count, and the case against the applicant, who was both present and engaged in acts that formed part of the offence: the applicant pouring fuel around the house and gagging Mr Crockett, Adam McKay tying Mr Crockett to the chair in the lounge room, and one of the applicant or Adam McKay breaking the front window and starting the fire. The applicant had also pleaded guilty to count 3, the destruction of the house by fire.

14. [30]

    In order to make out its case on count 1 against Jason McKay, it was necessary for the Crown to prove that while he was at the property, Jason McKay engaged in the conduct that it alleged was in furtherance of the agreement to murder Mr Crockett: bringing the jerry cans inside, bringing the rope inside, and giving the instruction to Adam McKay to “finish” Mr Crockett. The Crown submitted to the jury that if it accepted Mr Crockett’s evidence that he saw and heard Jason McKay bringing the jerry cans and the rope inside, and instructing Adam McKay to finish him off, “the Crown case is that Jason McKay is responsible for the actions of Adam and also of Samuel Towney”.

15. [31]

    Mr Crockett was the sole witness to the conduct on which the Crown relied for count 1 as against Jason McKay, and his case at trial focused on undermining the reliability of Mr Crockett’s evidence about those acts. As counsel for Jason McKay submitted to the jury in closing:

16. [32]

    The cross-examination of Mr Crockett on behalf Jason McKay on count 1 was thus directed at what Mr Crockett said he saw Jason McKay do, and what he otherwise heard him do and say, before he left the property shortly after 10am:

    1. (1)

       Mr Crockett gave evidence that Jason McKay “got the kids out” of the house at about 9.50am, and then he brought two yellow drums with black lids into the house, doing this three times. In his evidence in chief, Mr Crockett said that the time between his taking the others outside and returning was “virtually straight away, like give or take a minute, you know”. In cross-examination, Mr Crockett maintained that he saw Jason McKay bring jerry cans in twice, and he heard Jason come back a third time, with a noise that sounded the same as when the other drums had hit the ground on the pine flooring. He denied that Jason McKay did not bring any fuel drums into the house.

    2. (2)

       Mr Crockett was also challenged about seeing Jason McKay with the blue and yellow telecom rope. He maintained that he saw Jason carry the rope inside, give it to Adam and say, “Finish this old cunt off now” and “[m]ake sure you take all the drums, everything, don’t leave anything behind and make sure it’s all gone when you leave”.

    3. (3)

       In the course of cross-examination, Mr Crockett gave a number of somewhat differing versions of what Jason McKay said to Adam McKay, and of what Adam McKay said to him when he begged to be shot and not burnt.

    4. (4)

       In circumstances where Mr Crockett agreed that the instructions he heard Jason McKay give Adam were very significant, it was put to Mr Crockett in cross-examination that he did not tell police about what Jason said until 22 October 2018. Mr Crockett could not recall mentioning it in his earlier interview with police on 10 October 2018, pointing out that he was on a lot of morphine at that time. He accepted it was possible that all he reported in that earlier interview was that Jason said “We’ll finish this matter now”, and Adam said, “That’s Jason’s way”, but said he was speaking to female police officers on that occasion (the implication being that he was minding his language).

    5. (5)

       It was also put to Mr Crockett that the triple-0 call did not record him saying anything on this subject. Mr Crockett explained that his focus at the time was getting an ambulance out there to save his life and to save the house.

    6. (6)

       Mr Crockett also accepted that before Jason McKay left the house, he heard Jason say to Ms Ham words to the effect of, “No, he will be alright, the boys will drop him to the doctor”.

17. [33]

    Ultimately, as had been put to Mr Crockett in cross-examination, counsel for Jason McKay submitted in closing that Jason did not carry any fuel drums or rope inside, nor did he say to Adam words to the effect of, “Finish this cunt now”. In submitting that the jury would not accept Mr Crockett as a reliable witness about these matters, counsel gave particular emphasis to the following:

    1. (1)

       The ambulance officer, James Laird, who treated Mr Crockett while on the way to the hospital from which he was airlifted, said that Mr Crockett said to him that “[h]e saw the men bring fuel cans into the house while he was tied to the chair”. The significance of this, as counsel for Jason McKay put to the jury, was timing: it was not possible that Jason McKay brought the fuel cans and rope inside after Mr Crockett had already been tied up with the same rope.

    2. (2)

       Ms Ham, FB, FJ and FR, who were all outside the house at the time when, on Mr Crockett’s evidence, Jason McKay was bringing the jerry cans inside, said that they did not see Jason make a number of trips into the house with five or six jerry cans, or with any rope. Ms Ham, for example, gave evidence that she did not see Jason McKay go back inside after she followed him out.

    3. (3)

       There was a delay of some 13 days between 9 October 2018 and when Mr Crockett first disclosed the instruction that Jason McKay gave Adam McKay (“finish this cunt off”) to police, by which time Mr Crockett had an opportunity to speak with Ms Ham (although Mr Crockett denied having done so).

18. [34]

    The Crown also relied on Mr Crockett’s evidence on count 1 in relation to the applicant, in particular his evidence that: he saw the applicant pouring petrol through the main house; the applicant was present when Adam McKay tied Mr Crockett to a chair inside; the applicant put the gag in Mr Crockett’s mouth; and the applicant and Adam McKay left together, the applicant telling him to have a good day.

19. [35]

    In addition to the evidence of Mr Crockett, the Crown relied on police recovering five yellow jerry cans matching his description from the boot of the Kluger, which was the vehicle in which the applicant and Adam McKay left the property. Consistently with Mr Crockett’s evidence that he smelled diesel, two of the five jerry cans contained traces of diesel fuel (Ex V at [45]-[46]). Residue of ignitable fluids was also located on the shoes that the applicant was wearing that day, and on the shoes, socks and pants of Adam McKay (Ex V at [56]). The Crown also relied on a number of items that police located on the concrete slab at the back of the main house, which were consistent with Mr Crockett’s evidence of escaping the house before freeing himself from the chair. The items in that location included:

    1. (1)

       pieces of blue and yellow rope, DNA on which was consistent with that of Mr Crockett (Ex GGG Agreed Facts p4);

    2. (2)

       two burnt wooden chair legs in close proximity to the pieces of rope (Ex W); and

    3. (3)

       the photographs of the rope and the chair legs showed other items nearby, for example, a cardboard box, which were not burnt (Ex W).

20. [36]

    Senior Constable Crawford, who was the first police officer to attend upon Mr Crockett at his neighbour’s property, also gave evidence that Mr Crockett was holding a knife, which Mr Crockett described as having “saved” him. That evidence provided some support for Mr Crockett’s evidence that he had taken a knife from the kitchen and used it to cut himself free, about which he was not specifically challenged.

21. [37]

    As the applicant’s trial counsel observed in her closing address, the jury did not need to decide count 3 in relation to the applicant because “Samuel Towney has told you that he was legally involved in the burning down of that house, and he has admitted being guilty to the elements of that count”. It also followed, in so far as count 1 was concerned, that the jury did not need to consider whether the element of burning down the house was satisfied. It was the other elements of count 1 that the jury needed to consider.

22. [38]

    The applicant’s case at trial on count 1 was that Mr Crockett was not inside the house when the fire was lit. Alternatively, if Mr Crockett was inside at that time, the applicant contended that the Crown had not established that the applicant knew Mr Crockett was inside. Thus, in cross-examination of Mr Crockett by the applicant’s counsel:

    1. (1)

       It was put to Mr Crockett that he was confusing the applicant and Adam McKay and that it was Adam who was in fact spreading the petrol around. Mr Crockett rejected that proposition, confirming that it was the applicant who was spilling the petrol from the jerry cans around the house.

    2. (2)

       Mr Crockett also rejected the proposition that it was Adam McKay and not the applicant who hit him when he was in the bathroom. He disagreed with the proposition that the applicant did not hit him that day, saying, “He smashed me down the side of the head with the breech end. Do you know what the breech end of a shotgun is? It’s a machine and razor sharp.”

    3. (3)

       Mr Crockett rejected the suggestion that Adam McKay took him out the back of the house and tied him to a chair on the cement patio outside, saying that was not true and that Adam took him to the lounge room and had him “standing at the fireplace, he got a chair from the table and proceeded to tie me up”. Mr Crockett also maintained that Adam tied him up with what he variously described as “the blue cord” and “the telecom rope”, and that the applicant gagged him and said, “I don’t want you screaming for help”.

    4. (4)

       When it was put to Mr Crockett that he had said to the triple-0 operator, “they dragged us all outside”, he said, “I wasn’t dragged outside. I was dragged from the bathroom back to the fireplace”.

    5. (5)

       Mr Crockett did not accept that he had exaggerated the applicant’s involvement because he wanted to punish the applicant for his involvement, stating, “I don’t wish to punish him, but I just don’t wish him to try and do to other people what he did to me…and I just know what he did on the day”.

23. [39]

    The applicant’s trial counsel focused on the factual issue that arose on count 1 in closing address, submitting:

24. [40]

    One issue that Mr Crockett’s evidence, assuming it was accepted, did not resolve was how the fire was ignited, or by whom. As the Crown Prosecutor stated in the course of an exchange with the trial judge before the summing up, in relation to the written direction on joint criminal enterprise (JCE):

25. [41]

    In closing, the Crown Prosecutor had referred the jury to the acts of the applicant in pouring fuel throughout the house and gagging Mr Crockett when he was tied to the chair inside. The Crown submitted to the jury that the latter act was important “because one of the elements of the first count is that Paul Crockett was bound and gagged to the chair at the time that the attempted murder took place”. The Crown continued:

26. [42]

    This passage highlights the differences in the cases that the Crown was running as against Jason McKay and the applicant. The Crown Prosecutor made the point even clearer towards the end of his closing address:

27. [43]

    The foregoing is sufficient to demonstrate the difficulty with the applicant’s submission that the Crown case on count 1 was an “all or nothing” case resting on a joint criminal enterprise involving Jason McKay and the applicant, such that it was not open to the jury to find the applicant guilty and Jason McKay not guilty. The written submissions filed on the applicant’s behalf reproduced a lengthy passage from the Crown’s closing which was said to demonstrate the contrary, and that the existence of an agreement to murder Mr Crockett was fundamental to the jury’s consideration of count 1. The applicant relied in particular upon the Crown Prosecutor’s statement that “this is how the Crown brings its case against Mr McKay and also against Samuel Towney”. In evaluating that submission, it is necessary to have regard to the particular context, which the applicant fairly extracted.

28. [44]

    Apart from count 1, as set out above there were a series of other counts on the indictment which, as the Crown described them to the jury, involved “the combined actions of all three men whilst at the house”. In relation to those other counts, the three men were each present at the farm but engaged in different acts for which each was said to be criminally responsible by reason of the agreement formed by the three men including breaking into the house, incapacitating the adult male and detaining the occupants. For example, count 4 (and the alternative count 5) involved the assault on Mr Crockett by Jason McKay and Adam McKay shortly after entry. At trial, the applicant disputed that he was a party to an agreement to commit that offence, or any of the detention offences. It was in the context of those counts that the Crown submitted to the jury:

29. [45]

    At trial, both Jason McKay and the applicant relied on undermining the reliability of Mr Crockett’s evidence. The trial judge gave the jury a Murray direction, the terms of which were prepared by the applicant’s counsel. In oral submissions on the appeal, counsel for the applicant submitted that the direction reflected that the case against both accused was the same, as it stated that “unless you are satisfied beyond reasonable doubt that Mr Crockett is both an honest and accurate witness in the account he has given, you cannot, therefore, find either accused guilty”. That submission cannot be sustained in the face of a proper understanding of the way the Crown put its or in the face of the trial judge’s further directions to the jury. True it is that the trial judge did not give the jury a specific direction that it could accept parts of Mr Crockett’s evidence and reject other parts of his evidence. However, the trial judge twice directed the jury that it was not obliged to accept the whole of a witness’s evidence, and that it could accept part of a witness’s evidence and reject other parts. His Honour gave this direction early in the summing up and again towards the end, on each occasion also directing the jury that if it did not accept a part of a witness’s evidence that did not mean that the jury must necessarily reject the balance.

30. [46]

    Those directions reflected, as should be clear by this point, that parts of the evidence of Mr Crockett were of particular significance to the Crown case against Jason McKay and other parts were of particular significance to the case against the applicant. His Honour summarised challenges that the applicant made to Mr Crockett’s evidence, and his reliance on the absence of independent evidence to support that Mr Crockett was inside the house at the time of the fire.

31. [47]

    In working through the written elements document provided to the jury, the trial judge noted that the central allegation for count 1 was that the co-accused, with intent to murder Mr Crockett, set fire to the dwelling house in which he was bound and gagged. In relation to the element of setting fire to the house, his Honour observed that there was no particular evidence indicating who it was who specifically did that, and that he would return to this when dealing with joint criminal enterprise. His Honour also foreshadowed joint criminal enterprise in relation to the case Jason McKay, “because, as you’ll appreciate from a simplistic point of view, Mr Jason McKay has left when these charges, these counts 1 alternative 2, and count 3, have occurred on the evidence and that’s where the Crown must satisfy you of his commission of those offences in descending order, as it were, the count 1, alternative 2, and count 3, by way of acts in furtherance of the agreement”. His Honour continued:

32. [48]

    When the trial judge came shortly thereafter to give the jury directions on joint criminal enterprise, his Honour emphasised that it was necessary to establish both the existence of an agreement and the participation in it by the accused. His Honour noted that in relation to count 1 as against Jason McKay, the Crown relied on the acts to which I have referred above, as done in furtherance of the agreement, and that Mr Crockett was the sole witness as to those acts. His Honour pointed out that both accused through their counsel had challenged Mr Crockett about his evidence in this regard, and their submission that “you wouldn’t accept that component or indeed others of his evidence”. Specifically in relation to the acts that the Crown alleged Jason McKay did before he left the property, his Honour noted that if the jury did not accept beyond reasonable doubt that Jason McKay did those further acts, the Crown could not make out counts 1 to 3 against Jason McKay.

33. [49]

    In relation to the case against Mr Towney, the trial judge stated:

34. [50]

    Drawing these matters together, the trial judge directed the jury as follows:

35. [51]

    The applicant was critical of his Honour’s reference to the case against the applicant and Jason McKay as one of joint criminal enterprise “with each other and/or with Adam McKay”, as being inconsistent with the manner in which the Crown put the case. The criticism was not well made. The direction reflected, as I have explained above, that the Crown case was that the physical acts constituting count 1 were committed by Adam McKay and the applicant. The Crown alleged that Jason McKay had committed count 1 on the basis of acts he committed in furtherance of the agreement formed before he left, but even if the jury did not accept that, it could find the applicant had committed count 1 by reason of his own acts in combination with those of Adam McKay.

36. [52]

    The applicant was also critical of the written document that was distributed to the jury on joint criminal enterprise, which relevantly provided:

37. [53]

    The written document reflected the directions his Honour had given orally, which, in turn, were consistent with the Crown case and the response to that case by the two accused. The applicant’s trial counsel had no issue with the oral directions or with the version of the document that was provided to the jury. Having regard to the close attention that the applicant’s trial counsel paid to the trial judge’s summing up, both in advance of the summing up and throughout, I do not accept the applicant’s submission on appeal that the words “and/or” could easily have been missed, noting that the trial judge used the same formulation in the course of the summing up. The “or” was important for the applicant in relation to the other counts on the indictment, his case being that he did not participate in those counts, limiting any agreement to one between Jason McKay and Adam McKay.

38. [54]

    The sentence I have emphasised in [11] of the written document indicates that, contrary to the applicant’s submission on the appeal, the counts were left to the jury on the basis that it could reach a different result as against the two accused. The direction that the applicant contends, in ground 2, that the trial judge should have given — that it could not find the applicant guilty unless it was satisfied of the joint criminal enterprise with Jason McKay — would have been not only wrong but also inconsistent with the Crown case against the applicant and Jason McKay. As the Crown submitted on the appeal, its case against Jason McKay sought to assign to him responsibility for the conduct undertaken by the applicant and Adam McKay after he left by proving the existence of a joint criminal enterprise between the three men. Conversely, joint criminal enterprise was relied on against the applicant on count 1 because it was not known who, as between him and Adam McKay, ignited the petrol. In essence, for the purposes of count 1 against the applicant the Crown only needed to prove a joint criminal enterprise between him and Adam McKay, whereas Jason McKay’s guilt could not be proved without a joint criminal enterprise between all three men, as well as Jason McKay acting in furtherance of that agreement before leaving the property.

39. [55]

    His Honour directed the jury to consider and return a verdict for each count, and each defendant, separately. His Honour also directed the jury that there was “nothing in law, or indeed for that matter common sense, which requires you to return the same verdicts in respect of each individual accused”. Contrary to the applicant’s submissions, those directions were not inconsistent with the Crown case.

40. [56]

    Accordingly, there was no factual or legal inconsistency between the jury’s verdict of guilty in respect of the applicant, and its verdict of not guilty in respect of Jason McKay. Contrary to the applicant’s submissions, what was said at trial by the Crown and the trial judge meaningfully differentiated between the cases against the applicant and against Jason McKay in relation to count 1. The case against the applicant on that count relied on a joint criminal enterprise between Adam McKay and the applicant for the limited purpose of assigning joint responsibility for the ignition of the fire.

41. [57]

    As the Crown further submitted on the appeal, even if it was essential to the guilt of the applicant that he was a part of a joint criminal enterprise with Jason McKay, it did not follow from the jury’s findings on count 1 for Jason McKay that the jury rejected the existence of the agreement. The jury also needed to accept that Jason McKay acted in furtherance of the agreement. This was a matter of which they needed to be satisfied independently of any fact concerning the applicant’s conduct, and if the jury were not so satisfied they could have entered a not guilty verdict for Jason McKay whilst convicting the applicant.

42. [58]

    The applicant submitted that it was not logically open to the jury to take the course that it did because Mr Crockett’s testimony was unequivocal, and at no stage did he accept that parts of his memory were better than others. I do not accept that submission. As the Crown submitted, the jury may have accepted that Mr Crockett was a reliable witness in general, but (in discharging their heavy burden) required more in order to be satisfied of the specific acts on which the Crown relied to connect Jason McKay to count 1. Mr Crockett’s evidence about those acts was weakened by the absence of any corroboration from the other complainants, who were in a position to see what Jason was doing before they drove away, as well as the evidence of the ambulance officer who said Mr Crockett told him that he saw the men spilling petrol around after he was tied up, and the different versions Mr Crockett gave in his evidence as to precisely what Jason said. Contrary to the applicant’s submission, the jury was not logically required to take an all or nothing approach to Mr Crockett’s testimony; and the trial judge was not required to direct that they do so.

43. [59]

    The applicant has not established either of ground 1 or ground 2 on the conviction appeal. Having carefully reviewed all of the evidence, I do not consider that the jury’s verdict on count 1 was unreasonable on the basis of any legal or factual inconsistency with the verdict of not guilty on that count as against Jason McKay. Nor did the trial judge fail to give a direction of the nature for which the applicant contended.

Conclusion on the appeal

1. [60]

   As I noted at the outset of these reasons, Hamill J has addressed the sentence appeal (ground 3), and I agree with the orders his Honour proposes on the sentence appeal, for the reasons his Honour has given. Having regard to r 4.15 of the Supreme Court (Criminal Appeal) Rules, I would refuse leave on ground 2. Accordingly, I propose the following orders:

   1. (1)

      Leave is granted to file an application for leave to appeal against conviction and sentence with effect from 20 March 2025.

   2. (2)

      Grant leave to appeal against conviction on ground 1, and refuse leave on ground 2.

   3. (3)

      Dismiss the appeal against conviction.

   4. (4)

      Grant leave to appeal against sentence.

   5. (5)

      Dismiss the appeal against sentence.

2. [61]

   KIRK JA: I agree with the orders proposed by Mitchelmore JA for the reasons given by her Honour with respect to the conviction appeal and by Hamill J with respect to the sentence appeal.

3. [62]

   HAMILL J: I have had the great advantage of reading the judgment of Mitchelmore JA in draft. I agree with the orders her Honour proposes in relation to the extension of time and the application for leave to appeal against the conviction. Having undertaken an independent review of the record of the trial, and applying the settled authorities on inconsistent verdicts, I have nothing to add to her Honours reasons for concluding that the appeal against conviction must be dismissed.

Application for leave to appeal against sentence

1. [63]

   Mr Towney also sought leave to appeal against the aggregate sentence imposed on 7 December 2022. He raised a single ground asserting that “the aggregate sentence was manifestly excessive”. In advancing that ground, counsel drew attention to the individual sentences indicated for the purpose of s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). No complaint was made about those indicative sentences. Rather, the complaint was (correctly) directed to the aggregate sentence. It was submitted that a comparison between the aggregate and the indicative sentences reflected a “latent misapplication of the totality principle” and an excessive degree of notional accumulation.

2. [64]

   The facts and evidence relating to the total course of offending, and the details of the individual counts on the indictment, can be discerned in the judgment of Mitchelmore JA on the conviction appeal. The aggregate sentence imposed by Judge Hoy SC was one of 26 years imprisonment with a non-parole period of 17 years. The following table sets out the eight offences for which the applicant was sentenced, the applicable maximum penalties and standard non-parole periods, a very brief description of the offending, the sentencing Judge’s finding as to the objective seriousness and the indicative sentences relating to each offence:

3. [65]

   In addition to the complaint concerning the degree of notional accumulation – which focused on the close connexion between the offences and the fact that each was committed as part of the same, continuing joint criminal enterprise – it was also submitted that the total sentence failed to reflect the finding that the applicant’s moral culpability was diminished by virtue of his profound history of childhood dysfunction and deprivation. To appreciate the force of that submission, it is necessary to recount some of the applicant’s personal case and other factual matters relevant to sentence. The sentencing judgment, which related to both Mr Towney and Jason McKay, was delivered on 7 December 2022 and runs to a generous 94 pages. Adam McKay, who pleaded guilty to the offences, was sentenced separately by Judge Turnbull SC and the applicant raised no ground based on parity of sentencing. No complaint was directed to the factual findings made by Judge Hoy and much of what follows derives from the sentencing judgment.

4. [66]

   Mr Towney was born in October 1988. He was just under 30 years old at the time of the offences and 34 years old when he stood to be sentenced.

5. [67]

   His criminal record included several Children’s Court matters relating to offences committed between 2003, when the applicant was 15 years old and 2006, when he turned 18 years old. Several of these matters were offences of violence and resulted in orders for supervised probation under the Children (Criminal Proceedings) Act 1987 (NSW).

6. [68]

   The applicant had been sentenced as an adult to imprisonment on several occasions including:

7. [69]

   The 2017 convictions resulted in the applicant being subject to the Child Protection Register (“the register”): Child Protection (Offenders Registration) Act 2000 (NSW). He had been convicted of various offences arising from his failure to comply with conditions of the register. Most recently, he was sentenced to 12 months imprisonment for an offence of breaching his reporting obligations under the register. The non-parole period for that offence expired on 9 June 2019 and the sentence presently under review commenced on 10 February 2019, making it partially concurrent with the unrelated earlier offence for breaching his obligations under the register.

8. [70]

   The sentencing Judge also considered a variety of disciplinary offences recorded in the applicant’s custodial history.

9. [71]

   The sentencing Judge held that the applicant’s criminal history did not entitle him to leniency.

10. [72]

    The Prosecutor tendered a psychiatric report prepared by Dr Kerri Eagle and the applicant relied on a report of Dr Richard Furst. Each psychiatrist took a detailed history from Mr Towney and came to similar conclusions as to his mental health profile and prospects of rehabilitation. While the sentencing Judge approached some of the “self-serving” assertions made to the experts with a degree of scepticism, the personal history provided by the applicant was generally consistent and the parties (and Judge Hoy) appeared to accept that it was reliable.

11. [73]

    The applicant’s family background was profoundly dysfunctional and his childhood was one of dislocation and deprivation. His father was an Indigenous man and his mother was Croatian. His parents separated when the applicant was very young and his father, who had a gambling problem, was murdered when the applicant was 8 years old. Mr Towney’s mother was neglectful and physically abusive and “appears to have had Munchhausen’s Syndrome by proxy”. She “overdosed” the applicant, and he was admitted to hospital “a few times” as a result.

12. [74]

    The applicant was taken into care by the Department of Community Services when he was very young and he told the psychiatrists that he was sexually abused while in foster care. He was moved between foster homes and back into his mother’s care on occasions. He was subject to severe violence at his mother’s hands. The sentencing Judge said this included being bashed with a cricket bat, being gagged and held down in a bathtub and, “on another occasion he says she smashed his head into a wall and tried to run over him with a car”.

13. [75]

    By the age of 12 or 13, the applicant was living on the streets. He was taken in by a drug dealer when he was about 14 years old. He started using cannabis at the age of 13, amphetamines from the age of 14, and MDMA and LSD from 16 years old. He started using opioids at around the age of 17 and was injecting both heroin and “ice” when he was 21 years of age. He worked in “security” for some sex workers when he was in his middle teenage years. Mr Towney’s Children’s Court record reflected his itinerant lifestyle and history of substance abuse. He told Dr Furst, “I didn’t give a fuck about anything. No one gave a fuck about me” and confirmed that “he hated authority”. Dr Furst wrote that the applicant’s “antisocial traits and negative attitudes extend to his intimate relationships” with the applicant deliberately hurting (emotionally) and degrading the women with whom he was involved.

14. [76]

    The applicant was assessed as being of average or low intelligence but neither psychiatrist diagnosed any major mental health illness such as psychosis or severe mood disturbance. However, both Dr Eagle and Dr Furst found he had an antisocial and borderline personality disorder. Dr Eagle considered he “displayed a pattern of pervasive violation and disregard for the rights of others”.

15. [77]

    Dr Eagle was of the opinion that the applicant was in the “high baseline risk” for further violent offending. Dr Furst expressed a similar opinion, albeit less directly, noting the applicant’s “lack of insight into his own behaviour, criminal tendencies and treatment needs”. As Dr Eagle put it, “Dr Furst and I appear to have generally concordant views regarding Mr Towney’s mental health and risk formulation”.

16. [78]

    Judge Hoy described the applicant’s personal history, descent into drug abuse and acknowledged the Prosecutor’s proper concession that the history amounted to “significantly adverse childhood and adolescent experiences” which in turn established “profound deprivation”. His Honour accepted the submission, made by both parties, that the history of childhood deprivation and dysfunction led to a reduction in the applicant’s moral culpability: Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. His Honour referred to the judgment of this Court in Hoskins v R [2021] NSWCCA 169 in considering this aspect of the sentencing exercise.

17. [79]

    On the other hand, his Honour found that “neither” offender had “made any real inroads as to rehabilitation” and that there was a “strong tenor of each psychological and psychiatric report warning a strong risk of reoffending”.

18. [80]

    As often happens, the evidence of an offender’s traumatic and deprived history resulted in anti-social attitudes and behaviour. While the evidence on this subject led to a diminution in the applicant’s moral culpability, it also meant that his prospects of rehabilitation were poor.

19. [81]

    Paul Crockett, Marilyn Ham and FB each prepared a victim impact statement for the purpose of the sentencing proceedings. There was an objection to some of the material within those statements and there was a discussion of the weight that should be given to some of the assertions, particularly those made by Mr Crockett concerning the facts of the offences. The injuries asserted by FB were not pressed in Mr Towney’s case.

20. [82]

    Paul Crockett’s statement was dated 12 March 2020. It provided a description of the events of 9 October 2018 although that had to be considered in the context of the evidence at trial, the acquittals on some counts suggesting the jury did not accept all of Mr Crockett’s evidence and the factual findings made by the sentencing Judge. Mr Crockett said he was asleep when he was attacked by three offenders who hit him in the head with an axe. Mr Crockett was left lying on the floor of his loungeroom for hours, drifting in and out of consciousness and fearing that the offenders were going to kill him and his family. Mr Crockett was in the bathroom when one of the offenders kicked the door in and hit him over the head with a shotgun, which he described as excruciatingly painful. The offenders dragged him back to the loungeroom, tied him to a chair and poured petrol around the house. He described the smell as “overwhelming … like the petrol had been poured down [his] throat”. He was “petrified of being burnt to death” and “pleaded with the men just to shoot [him]”. He could not scream because he was gagged. The offenders left him in the burning house, tied to the chair, and locked the doors. Mr Crockett “could hear the fire burning” and said, “the house was exploding around me and the smoke was choking me”. He managed to free one of his hands and “crawled like a dog” out the back door with the chair still attached, partially on fire. Mr Crockett was in hospital for a week following the offence.

21. [83]

    Mr Crockett said he lost everything he had accumulated over 68 years. He lost many personal belongings in the fire but also lost friendships and his confidence because of the trauma. He lost personal items such as the last photo he had with his parents before they died. He said he can’t trust other people anymore and that he was “filled with so much fear and anger”. The offence “severely limited [his] ability to work” and he was seeing “a psychiatrist every fortnight and a counsellor once a week”. He regularly has flashbacks, doesn’t feel safe in his own home, feels helpless and finds it difficult to sleep. He misses his grandchildren who no longer visit him and has “thought about ending it all and killing [him]self”.

22. [84]

    Marilyn Ham provided a statement dated 19 November 2019. She described feeling terrified during the incident and thought “they [were] all going to be killed”. She witnessed the offenders attack Mr Crockett who was “bleeding profusely” after his head was split open. She attempted to assist Mr Crockett and “managed to stem the flow of blood”. She described feeling “so worried for him” as she “really thought he was going to die [because] there was just so much blood”.

23. [85]

    Ms Ham noted that this incident “caused [her] so much fear and distress”. She said she does not leave the house now unless it is absolutely necessary, and that she cannot go anywhere without Mr Crockett. She “doesn’t feel safe walking down the street” and has “virtually withdrawn from life”. For a long time after the offence, she was “unable to sleep without having the most frightening nightmares” and “would see [the offenders] chasing [her] in [her] sleep”. Ms Ham also said she lost all of her possessions in the fire including every photograph of her family. Ms Ham’s son, Michael, died two months before the offence and his things were lost in the fire, along with her late grandmother’s and mother’s possessions. She said, “they burnt down our whole family history and I can never get that back”. Ms Ham also described the strain on her relationship with Mr Crockett, noting that “there is always stress in the house, we are constantly on edge, we don’t just enjoy ourselves anymore”. Ms Ham said, “what these men did to us has made me completely numb inside … they took my heart and soul away”.

24. [86]

    FB made a statement on 12 August 2021. She noted that the incident happened just six weeks after her brother died, nine weeks after she had a miscarriage and 10 weeks after she left an abusive relationship. She said she was a bright, bubbly and outgoing person before the incident but now “live[s] in a constant state of fear” and has severe depression and anxiety. She experiences episodes of uncontrollable crying, panic attacks and finds herself “triggered by the smallest things”. She no longer enjoys spending time outdoors, camping, watching movies or reading. She has a fear of being in social situations and isolated places. She experiences nightmares that “seem so real”, has difficulties sleeping and “can’t function some days”. She attends “ongoing psychologist appointments”.

25. [87]

    FB was unable to work following the incident because of the bruising she suffered and her mental state. She said that some customers would remind her of the offenders, and this caused her to have a panic attack. At the time of writing the victim impact statement, FB had not worked since the trial and her employer had filled her position. While FB knows she is not to blame for the incident, she still experienced feelings of guilt and shame because her family lost everything. Many of her belongings were destroyed during the fire, her relationship with Mr Crockett is now strained and she lost many of her friends. She said she “lost so much that day, not only three generations of family heirlooms, but the ability to be close to friends and family, the ability to trust society and to feel safe in this world”.

26. [88]

    Neither of the child victims provided victim impact statements but Judge Hoy accepted that, in light of the factual circumstances, the children would have also suffered emotional consequences and adverse effects which his Honour hoped would be short-lived. His Honour described the statements provided by Mr Crockett, Ms Ham and FB as “devastating” and said that they provide “gut-wrenching insights into the magnitude and impact that these offences have had upon the victims”. His Honour went on to say:

27. [89]

    In other words, his Honour did not find the impact on the victims to be an aggravating factor under s 21A(2)(g) of the Crimes (Sentencing Procedure) Act.

Resolution of the proposed ground of appeal against sentence

1. [90]

   The applicant compared the indicative sentence for the attempted murder (17 years with a non-parole period of 10 years) with the aggregate sentence (26 years with a non-parole period of 17 years) and submitted this was “a notional accumulation of 9 years of imprisonment for remaining counts 3, 5, 6, 7 to 10”. It was submitted this was excessive because:

   1. (1)

      The offences were part of a single episode of criminality which took place over several hours on one day,

   2. (2)

      The single act of lighting the fire was the act constituting both count 1 and 3 which were the offences which attracted the highest indicative sentences (17 years and 6 years and 9 months respectively), and

   3. (3)

      The Judge found the applicant’s moral culpability was diminished because of his deprived childhood and mental health conditions.

2. [91]

   The applicant referred to the reasoning in Noonan v R [2021] NSWCCA 35, specifically to the passage at [33] where Beech-Jones J said:

3. [92]

   By reference to the decisions in JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40(13)], Lee v R [2020] NSWCCA 244 at [32] and Aryal v R [2021] NSWCCA 2 at [50], Beech-Jones J went on to say at [41] (quotation marks omitted):

4. [93]

   The respondent submitted that the “totality of the criminality involved in the eight offences for which the applicant was sentenced was immense” and emphasised the focus must be on the aggregate sentence and no assumptions should be made about the correctness of the indicative sentences. The respondent also submitted that, while the offending can be described as being a single episode, this description “belies the multiplicity of offences committed against different victims and the discrete criminality involved in many of them”.

5. [94]

   The sentencing Judge was conscious of the fact that some of the criminality was overlapping. For example, his Honour said:

6. [95]

   His Honour went on:

7. [96]

   These passages demonstrate that his Honour was conscious of the task he was undertaking and his observations concerning totality, accumulation and concurrence were both legally and factually correct. The fact that the remarks were correct does not defeat the argument that the aggregate sentence was excessive or that something went wrong in applying the legal principles to the facts of the case. Where an applicant asserts that a sentence is manifestly excessive, they are relying on latent error and on the observations of the High Court in House v The King (1936) 55 CLR 499; [1936] HCA 40:

8. [97]

   In R v White, the Chief Justice at [20]-[31] restated a number of general principles relating to sentence appeals and, specifically, arguments concerning whether a particular sentence is “manifestly” inadequate or excessive. His Honour emphasised the broad discretion residing in a sentencing judge especially in a case where the Judge has presided over a lengthy trial. In the end, as Gleeson CJ and Hayne J emphasised in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]:

9. [98]

   Taking the indicative sentence for the attempted murder as a starting point, as the applicant did, it is apparent that the sentencing Judge decided that there should be a substantial degree of notional accumulation within the aggregate sentence. However, that neither discloses error nor suggests that the Judge failed correctly to apply principles of totality. The extent to which sentences are made concurrent or cumulative is a matter involving a discretionary judgment and this Court is often hesitant to interfere in the absence of error. This is particularly so where, as here, the trial Judge has presided over a contested trial and seen the victims and witnesses give evidence.

10. [99]

    In considering issues of totality in the present case, it is to be remembered that there were many distinct aspects to the offending. Furthermore, the dignity of each of the separate victims was to be vindicated by the sentencing outcome: cf Munda v Western Australia (2013) 249 CLR 600; [2013] HCA 38 at [54]-[55] and vehicular manslaughter cases such as Davidson v R [2022] NSWCCA 153; (2022) 100 MVR 336 and Chandler v R [2023] NSWCCA 59; (2023) 103 MVR 392 where multiple people were killed and injured.

11. [100]

    The applicant and his two co-offenders detained five separate people, including two children and a relatively elderly couple. Each was exposed to violence and threats of violence. The offenders were armed with weapons and acted in concert over an extended period of time. The applicant essentially stood guard, armed with a firearm, outside the children’s room and was party to the enterprise by which both women were detained for advantage. Before Mr Crockett was tied to a chair with a view to burning him alive, he was bashed and abused over some hours. The applicant was party to the joint criminal enterprise which caused serious injuries to Mr Crockett and was responsible for at least one of the heavy blows, delivered with a shotgun, that caused those injuries. Photographs of the injuries tendered on sentence were quite shocking. The infliction of those injuries and the period of detention took place before the ultimate act of setting fire to the house with a view to destroying it and its contents, and killing Mr Crockett by burning him to death.

12. [101]

    While it is correct to say that there should have been a high degree of (notional) concurrence between the arson charge and the attempted murder charge, the consequence of lighting the fire in each case was very different. Some degree accumulation was to be expected to reflect the destruction of victims’ home and personal possessions. Further, the detention of four other people and the wounding of Mr Crockett involved quite separate offending and called for a marked degree of (notional) accumulation over and above the sentence imposed for the most serious offences.

13. [102]

    The ultimate sentencing outcome was very harsh, particularly when one takes account of the applicant’s terrible upbringing and related diminution in his moral culpability. However, the only possible outcome of this sentencing exercise was the imposition of a very harsh sentence of full-time incarceration. There was no basis to make positive findings about the applicant’s prospects of rehabilitation and the objective gravity of the offending, considered in its totality, was at the extremely high end. The fact that two children were detained and exposed to the terror and violence was a factor that aggravated the criminality and was bound to increase the severity of the sentence. As to the most serious offence on the indictment, this was a brutal, cruel and callous example of an attempted murder.

14. [103]

    While the degree of notional accumulation was high, the indicative sentences fell in the middle, and in some cases the lower, end of the range of individual sentences that might have been expected in view of the objective seriousness of the offending. I discern no error – latent or otherwise – in Judge Hoy’s approach to totality and cannot conclude that the aggregate sentence is manifestly unreasonable or plainly unjust.

15. [104]

    Given the length of the aggregate sentence and the issue of totality, which was argued persuasively on the appeal, I would grant leave to appeal against the sentence. However, I would dismiss the appeal.