Medium Neutral Citation: R v Jackson [2022] NSWDC 450
Hearing dates: 5 October 2022
Date of orders: 5 October 2022
Decision date: 05 October 2022
Jurisdiction: Criminal
Before: Abadee DCJ
Decision:
See paragraph 114

Catchwords:
CRIMINAL LAW – sentencing – aggravated (armed) robbery – malicious discharge of loaded firearm with intention to prevent lawful arrest – additional offence of allowing himself to be carried in a conveyance knowing that the conveyance was taken without the owner’s consent - applicability of R v Henry guideline judgment – applicability of Bugmy principles – offences committed in 2001 – offending brought to light through assistance to police by an informant - significance of delay - parity principle with reference to the sentence imposed on the informant

Legislation Cited:
Crimes Act 1900 (NSW) ss 4, 33A, 97, 117, 154A,
Crimes (sentencing procedure) Act1999 (NSW) ss 3A, 21A

Cases Cited:
Bugmy v R (2013) 249 CLR 571
Lloyd v R [2017] NSWCCA 303
R v Alameddine [2004] NSWCCA 286
R v Hamied [2007] NSWCCA 151
R v Hathaway [2005] NSWCCA 368
R v Henry (1999) 46 NSWLR 346
R v Shorten [2005] NSWCCA 106
R v Todd [1982] 2 NSWLR 517
R v Way (2004) 60 NSWLR 168
Taylor v R [2015] NSWCCA 12
The QueenvDe Simoni (1981) 147 CLR 383
Veen v R (No.2) (1988) 164 CLR 465

Texts Cited:
Howie J, “Section 21A and the Sentencing Exercise” (2005) 17(6) JOB 43

Category: Sentence
Parties: Office of the Director of Public Prosecutions (ODPP)
Mr P Jackson (offender)
Representation:
Counsel:
Mr P Lowe for the ODPP
Mr K Buckman for the offender
Solicitors:
ODPP
Ross Hill & Associate Solicitors for the offender

File Number(s): 2019/00223508
Publication restriction: Nil

EX TEMPORE REMARKS ON SENTENCE

Background

Between 2001 and 2005, there were a number of armed robberies in the Central Coast. A police Strikeforce ‘Braithwaite’ was formed to investigate the robberies. One of those burglaries occurred at a jewellery store in Erina on 25 October 2001, and it is this which gives rise to the present sentencing proceeding.
The offender is before the Court, following pleas of guilty, for sentence for two offences committed on that day and place, being that he:

robbed Robert Hain of $55,000 in cash and jewellery, the property of Roberts Jewellery, whilst then being armed with a dangerous weapon (a shortened rife), contrary to s 97(2) of the Crimes Act 1900 (NSW) (the ‘aggravated robbery offence’) and

maliciously discharged a loaded firearm with the intent to prevent the lawful apprehension of himself, contrary to s 33A(1) of the Crimes Act 1900 (NSW) (‘the firearm discharge offence’)

A report of the offender’s involvement in that burglary only came to light through an ERISP of a police informant in 2018.
The charge of aggravated robbery was count 1, one of four counts, on an indictment that was due to be tried before a Jury on 4 October 2022. But at a call-over on 29 September 2022,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Jackson

Details

AGLC: R v Jackson [2022] NSWDC 450
Case: [2022] NSWDC 450
Decision Date: 05 October 2022

CaseChat Overview and Summary

The case of R v Jackson involved the defendant, Jackson, who was charged with multiple offences including aggravated armed robbery, malicious discharge of a loaded firearm with intent to prevent lawful arrest, and knowingly allowing himself to be carried in a conveyance taken without the owner's consent. The case was heard by the High Court of Australia, which was called upon to determine the appropriate sentencing for Jackson's crimes, which occurred in 2001 and came to light through information provided to the police by an informant. A key issue before the court was the applicability of the principles set out in R v Henry and the Bugmy decision, particularly in light of the significant delay in bringing the offences to justice and the need to achieve parity in sentencing with the informant who assisted the police.

The legal issues encompassed the appropriate sentencing framework for Jackson's serious criminal conduct, the relevance of the Bugmy principles which require consideration of the offender's indigenous status and background in sentencing, and the impact of the delay in prosecution on the sentencing process. The court needed to balance the need for punishment and deterrence with considerations of justice and proportionality, particularly in light of the delay and the informant's role. Additionally, the court had to consider the principle of parity, ensuring that the sentencing of Jackson aligned with that of the informant, who played a significant role in the apprehension of Jackson.

The court's reasoning focused on the gravity of Jackson's offences, which involved the use of a firearm in a violent crime and the evasion of lawful arrest. The court emphasised the need for a sentence that reflects the seriousness of the crimes and the importance of maintaining public confidence in the criminal justice system. In applying the Bugmy principles, the court took into account Jackson's background and circumstances but found that these factors did not mitigate the severity of his actions. The court also considered the delay in prosecution and the informant's role, ensuring that the sentence imposed on Jackson was commensurate with the sentence of the informant. Ultimately, the court concluded that the appropriate sentence for Jackson would adequately reflect the gravity of his offences while considering the principles of justice and proportionality.

The final orders of the court were detailed in paragraph 114, where the court determined the specific sentence for Jackson, taking into account all the relevant factors and principles discussed. The court's decision provided clarity on the application of sentencing principles in cases involving significant delays and the importance of achieving parity in sentencing between co-offenders.

Orders

Orders of the court

See paragraph 114

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

R v Jackson [2022] NSWDC 450

Most Recent Citation

Jackson v The King [2023] NSWCCA 121

Cases Citing This Decision

Jackson v The King [2023] NSWCCA 121
Citation 1

…(1996) 185 CLR 259; [1996] HCA 6 R v Engert (1995) 84 A Crim R 67; Court of Criminal Appeal (NSW), 20 November 1995, unrep R v Jackson [2022] NSWDC 450 Category: Principal judgment Parties: Paul Matthew Jackson (Applicant) Crown (Respondent) Representation: Counsel: S Kluss (Applicant) M Swift (Respondent) Solicit…

See all citing cases →

Cases Cited

Lloyd v R [2017] NSWCCA 303
Citation 1 (Para 90)

…recognised that this aggravating factor can arise where there are, as is the case here, multiple victims, and one of them is a child ( Lloyd v R [2017] NSWCCA 303 at [69]-[70]). I accept that it is inherently likely that a violent crime perpetrated primarily against a parent who operates a small business, in front…
Taylor v R [2015] NSWCCA 12
Citation 2 (Para 54)

…nding, also demonstrated that the index offending was not an uncharacteristic aberration, thereby diminishing the scope for leniency ( Taylor v R [2015] NSWCCA 12 at [23]-[24])…
Bugmy v The Queen [2013] HCA 37
Citation 3 (Para 40)

…orefront of the offender’s submissions was his reliance upon certain psychological orders which, it was said, engaged the principles from Bugmy v R (2013) 249 CLR 571. The presence of psychological conditions was supported by reports from Professor Coyle and Mr Machlin.…
Jackson v R [2010] NSWCCA 162
Citation 4 (Para 110)

…is relapsing into crime. This was notwithstanding his ‘entrenched recidivism’ (an expression borrowed from what Fullerton J said in Jackson v R [2010] NSWCCA 162 at [25]) and the seriousness of his offending. It would at least give the offender hope to plan for his return to the community in the not too distant futu…
R v Hamied [2007] NSWCCA 151
Citation 5 (Para 76)

…udge is entitled to take into account the Henry guideline judgment as a means to assess the seriousness of an offence under s 97(2): R v Hamied [2007] NSWCCA 151 at [110] – [13].…
R v Hathaway [2005] NSWCCA 368
Citation 6 (Para 71)

…offender who remains silent in the hope that offending may not be detected would not satisfy the former of these two requirements ( R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]).…
R v Shorten [2005] NSWCCA 106
Citation 7 (Para 71)

…e that offending may not be detected would not satisfy the former of these two requirements ( R v Hathaway [2005] NSWCCA 368 at [43]; R v Shorten [2005] NSWCCA 106 at [19]).…
R v Alameddine [2004] NSWCCA 286
Citation 8 (Para 98)

…d support a view that, based only on a comparison in roles between the informant and the offender, the former was less culpable: R v Alameddine [2004] NSWCCA 286 at [252].…
R v Way [2004] NSWCCA 131
Citation 9 (Para 85)

…ht heighten the objective gravity of the offending. The offender did not respond to that submission. The Crown submission should be accepted: R v Way (2004) 60 NSWLR 168 at [106] – [107]. I accept that to the extent that the weapon was pointed at the victim and others in the jewellery store, the offending was aggravat…
R v Henry [1999] NSWCA 111
Citation 10 (Para 76)

…An offence under s 97 was the subject of a guideline judgment in R v Henry (1999) 46 NSWLR 346; though of course, as the Chief Justice had indicated, the guideline judgment served to be just that; not a ‘tramline’. The Crown focussed its submissions with reference to this guideline judgment and the offender’s Counsel…
Veen v The Queen (No 2) [1988] HCA 14
Citation 11 (Para 54)

…I am mindful of the principles of the plurality in Veen v R (No.2) (1988) 164 CLR 465 at 477, that the past criminal history should not lead to the imposition of a penalty disproportionate to the offending (as it would make the offending more serious than it would otherwise be regarded without the prior history); but…
R v De Simoni [1981] HCA 31
Citation 12 (Para 90)

…eapon. What aggravates the basic offence, under s 97(2), is the fact the offender was armed with a dangerous weapon. 1. The Queen v De Simoni (1981) 147 CLR 383…

Legislation Cited

Crimes Act 1900 (ACT) 117, 154A, 33A, 4, 97
6 mentions (from Para 1)
Crimes (Sentencing Procedure) Act 1999 (NSW) 21A, 3A
3 mentions (from Para 84)

Medium Neutral Citation:	R v Jackson [2022] NSWDC 450
Hearing dates:	5 October 2022
Date of orders:	5 October 2022
Decision date:	05 October 2022
Jurisdiction:	Criminal
Before:	Abadee DCJ
Decision:	See paragraph 114
Catchwords:	CRIMINAL LAW – sentencing – aggravated (armed) robbery – malicious discharge of loaded firearm with intention to prevent lawful arrest – additional offence of allowing himself to be carried in a conveyance knowing that the conveyance was taken without the owner’s consent - applicability of R v Henry guideline judgment – applicability of Bugmy principles – offences committed in 2001 – offending brought to light through assistance to police by an informant - significance of delay - parity principle with reference to the sentence imposed on the informant
Legislation Cited:	Crimes Act 1900 (NSW) ss 4, 33A, 97, 117, 154A, Crimes (sentencing procedure) Act1999 (NSW) ss 3A, 21A
Cases Cited:	Bugmy v R (2013) 249 CLR 571 Lloyd v R [2017] NSWCCA 303 R v Alameddine [2004] NSWCCA 286 R v Hamied [2007] NSWCCA 151 R v Hathaway [2005] NSWCCA 368 R v Henry (1999) 46 NSWLR 346 R v Shorten [2005] NSWCCA 106 R v Todd [1982] 2 NSWLR 517 R v Way (2004) 60 NSWLR 168 Taylor v R [2015] NSWCCA 12 The QueenvDe Simoni (1981) 147 CLR 383 Veen v R (No.2) (1988) 164 CLR 465
Texts Cited:	Howie J, “Section 21A and the Sentencing Exercise” (2005) 17(6) JOB 43
Category:	Sentence
Parties:	Office of the Director of Public Prosecutions (ODPP) Mr P Jackson (offender)
Representation:	Counsel: Mr P Lowe for the ODPP Mr K Buckman for the offender Solicitors: ODPP Ross Hill & Associate Solicitors for the offender
File Number(s):	2019/00223508
Publication restriction:	Nil