R v Jacobs (No 9)

[2013] NSWSC 1470

Supreme Court

New South Wales

Medium Neutral Citation:	R v Jacobs (No 9) [2013] NSWSC 1470
Hearing dates:	1 August 2013
Decision date:	04 October 2013
Jurisdiction:	Common Law
Before:	Button J
Decision:	Sentenced to imprisonment for life
Catchwords:	CRIMINAL LAW - murder of police officer - whether s 19B of Crimes Act applies - whether offender had intention to kill - whether offender was engaged in criminal activity that risked serious harm to police officers - no substantial cognitive impairment - standard of proof for statutory factors - imprisonment for life imposed
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Ngo v R [2013] NSWCCA 142 R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587 R v O'Neill (1979) 2 NSWLR 582; 1 A Crim R 59 The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
Category:	Sentence
Parties:	Regina Michael Allan Jacobs
Representation:	Counsel: P Barrett (Crown) T Hoyle SC (defendant) Solicitors: Solicitor for Public Prosecutions (Crown) Zahr Lawyers (defendant)
File Number(s):	2012/89001

Judgment

1. On 13 June 2013, Michael Allan Jacobs (to whom I shall usually refer in these remarks as "the offender") was arraigned before a jury panel and me. The indictment contained a single count averring that on 2 March 2012 at West Tamworth he murdered David James Rixon (to whom I shall usually refer as "the deceased"). The trial proceeded for five weeks until, after a short retirement, the jury returned a verdict of guilty of murder on 15 July 2013. Proceedings on sentence were conducted on 1 August 2013 and 30 August 2013. The result of those events is that the offender comes before court for sentence today.

Fact-finding

1. My approach to the determination of the facts of the matter is as follows. Any fact that I regard as adverse to the offender must be proven beyond reasonable doubt. A fact that I regard to be in his favour need be proven on the balance of probabilities only. It may be that the evidence will not permit me to determine some facts with clarity. It is not my role to try to construe the findings of fact that may have underpinned the verdict of the jury. Rather, I must make my own findings, consistent with that verdict: R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587.

1. I shall have more to say about the determination of certain facts in a particular statutory context later in these remarks.

Legislation

1. Four pieces of legislation are of particular relevance to sentencing for murder. The first is s 19A of the Crimes Act 1900 (to which I shall refer as "the Act"). That section is to the effect that the maximum penalty for the offence of murder in this State is imprisonment for the term of one's natural life.

1. The second is Division 1A of the Crimes (Sentencing Procedure) Act 1999 (to which I shall refer as "the Sentencing Act"). It is to the effect that, when the murder of a police officer is committed because of his or her occupation, there is an applicable standard non-parole period of 25 years.

1. The third is s 19B of the Act. In summary, that section is to the effect that, in certain circumstances, a sentence of imprisonment for life must be imposed for the murder of a police officer.

1. The fourth and final provision is s 61 of the Sentencing Act. It provides, in effect, that a life sentence must be imposed for murders in the worst class of case: see Ngo v R [2013] NSWCCA 142 at [27].

1. Again, I shall return to discuss those provisions, to the extent necessary, later in these remarks.

Objective features

1. Early in the morning of 2 March 2012, the deceased was serving as a member of the New South Wales Police. For some time he had been a uniformed highway patrol officer in Tamworth, and had attained the rank of Senior Constable. From about 6am he went about his normal duties, including attending a road accident, and at one stage setting up an RBT stop with a colleague.

1. On the same day, the offender was living in a modest home in Tamworth. He shared those premises with his partner, Ms Sharon Strudwick, and her son James Strudwick. They were living in difficult and to a degree chaotic circumstances, because the offender and Ms Strudwick each suffered from a long-standing problem with prohibited drugs. Indeed, in the preceding months, Ms Strudwick had expended many tens of thousands of dollars obtained from a family law settlement on such substances.

1. At an early stage of the morning the offender and Ms Strudwick had an argument. As a result, the offender drove away from the home in a heightened emotional state. He took with him his pet cat, of whom he was very fond, and that suggests that he was intending to leave the home, at least for a period. He was also somewhat emotionally aroused because, on the preceding evening, the offender had injected himself with methylamphetamine. I shall return to the question of the effect of the ingestion of that drug on his state of mind.

1. Before leaving home, the offender armed himself with a .38 calibre revolver that was in full working order. The handgun was loaded with a number of cartridges, and the offender was aware of that fact. That weapon had been in the possession of the offender at the home, but it is not clear precisely where it was kept. Nor is it clear for how long the offender had possessed it.

1. I am unable to determine why the offender took that item with him that morning, or indeed possessed it more generally. Perhaps, in light of his involvement in the drug scene of Tamworth, he kept such an item for his own protection. There is no suggestion that, when he took the revolver with him, the offender was planning to shoot a police officer, or indeed any other person. I also reject the suggestion, faintly made in the proceedings, that he was intending to harm himself.

1. Shortly thereafter, the offender and Ms Strudwick spoke by mobile telephone. The argument was resolved, and it seems that the offender was intending to return home. Before doing so, he stopped at a service station on the Gunnedah Road in West Tamworth, and purchased some petrol and cigarettes. He was, of course, alone at the time. There is nothing to suggest that his behaviour was abnormal at that stage. He then proceeded to drive his motor vehicle east along the Gunnedah Road, in the general direction of his home.

1. At that stage, the deceased was driving west along the Gunnedah Road in his fully marked highway patrol vehicle. He too was alone. He spotted the offender's motor vehicle, and at the least suspected that its driver was disqualified. That was because it was common practice for members of the highway patrol to discuss persons of interest with whom they had interacted. In the preceding months, the offender had been stopped a number of times for driving offences, and was indeed disqualified. In fact, he had been warned by another police officer that, if he offended again, it was quite possible that he would be refused bail by the police. As a result of his suspicion, the deceased did a U-turn, and his vehicle proceeded to follow the vehicle of the offender in an easterly direction.

1. I am satisfied that, although the deceased did not activate the lights or siren of his vehicle, the offender quickly became aware that he was being followed by a police vehicle. I am also satisfied that the offender was aware that he was committing an offence by driving. As many persons do when they do not wish to be confronted by a police officer with regard to a driving offence, the offender rather hurriedly left the main road, and drove through some backstreets. The deceased followed.

1. The offender ended up parking his car in a grassed area some distance in from the curb of Lorraine Street, West Tamworth. That area was part of a block of units in which he had resided some time before. The deceased parked his patrol car on the street, alighted, and walked towards the vehicle of the offender. The in-car video of the highway patrol car was activated, but of course it was not in a position to record what happened next. However, the deceased was wearing a microphone, and it recorded the subsequent events. The time was a little before 8am.

1. The deceased greeted the offender in friendly terms, and he replied in similar terms. At that stage I am satisfied that the offender had alighted from his vehicle as well, and was standing on the grassed area. The two men were close enough to speak without shouting. The offender was unquestionably aware that the deceased, who was in uniform, was a police officer. The deceased informed the offender that he was going to breath test him, again in friendly terms.

1. Almost immediately, the offender fired a shot from the revolver at the deceased. The scientific evidence establishes that, although that shot was fired from over 3 metres away, there could not, in all the circumstances, have been more than 3.5 metres between the muzzle of the revolver and the body of the deceased. The projectile passed through the left wrist of the deceased and then entered his chest. As the professor who conducted the post-mortem explained, the resulting injuries to his heart and lungs were rapidly and inevitably fatal.

1. It is not clear whether the deceased was in the firing position when he was shot, thereby explaining the path of the bullet through his wrist and into his chest. But it is clear that, very soon after the initial shot was fired, the deceased returned fire with his service pistol. A number of projectiles hit the offender. Immediately after the exchange of fire, the offender screamed "Ahh, die, I'm sorry, sorry, sir, sorry".

1. Before he died, the deceased re-holstered his pistol and handcuffed the man who had shot him.

1. The offender almost died from his own wounds. He spent many weeks in hospital as a result of them. Some time later, he was recorded at that location, by way of a covert listening device pursuant to a warrant, speaking to Ms Strudwick about the offence. Of course, at that time each of them was unaware that their conversation was being intercepted. Although the offender was suffering from the remnants of delirium at that time, many of the things that he said were coherent and truthful admissions of guilt.

1. I shall discuss my finding as to the intention with which the offender shot the deceased when I come to consider the applicability of certain statutory provisions. But it is convenient to discuss at this stage the related but separate question of the motive for the shooting.

1. It is very hard to fathom why the offender produced the revolver and fired it. It may be that he believed that he was being harassed by police generally with regard to his driving, and had simply had enough. If he did hold such a belief, it was quite unjustified, for the simple reason that it can hardly be harassment for the police repeatedly to seek to prevent people repeatedly committing offences.

1. It may be that he did not wish to be incarcerated, either by being bail refused or convicted of driving whilst disqualified yet again. Again, it is almost impossible to believe that, in order to avoid a short period of being denied bail or, at worst, a sentence of a matter of months for driving whilst disqualified, the offender saw fit to fire a handgun at a police officer.

1. In short, the question of motive is unable to be conclusively determined by me.

Seriousness of the offence

1. I turn to assess the seriousness of this offence. Of course, every murder, founded as it is upon the taking of the life of a fellow human being in the worst circumstances known to law, is extremely grave. And it could be said that the use of a firearm, and especially a handgun, is itself an aspect that makes this murder more serious than an offence that is committed with a less egregiously dangerous, terrifying, and anti-social weapon.

1. Quite apart from that, the murder of a police officer who is acting in the execution of his or her duty carries with it an entirely separate and additional attribute. Police officers who are acting in the execution of their duty are, in truth, simply enforcing the laws made by Parliament or the orders made by courts. The circumstances of this case are a perfect example of that proposition. The deceased was lawfully seeking to administer a random breath test pursuant to a provision of the laws of this State first enacted by the New South Wales Parliament about 30 years ago, and maintained ever since. Not only that, I infer that the deceased was proposing to use the opportunity of the traffic stop to confirm that the offender was indeed a disqualified driver, and if so charge him with that offence. No doubt there has been a regime for licensing and disqualification of drivers of motor vehicles ever since they first appeared on the roads of New South Wales about 100 years ago, and it is a regime maintained by way of court order.

1. In short, the murder of a police officer acting in the execution of his or her duty is very much more serious than the intentional taking of the life of a fellow citizen, inherently grave though that is. Certainly, the murder of a police officer in such circumstances is a direct assault upon our system of parliamentary democracy and the rule of law.

Subjective features

1. I turn to consider aspects of the life and character of the offender, above and beyond those to which I have already referred. They were placed before me chiefly by way of his criminal record and a report from an eminent forensic psychiatrist. It is to be noted that they were not supported by oral evidence from the offender or any other person.

1. I have approached the history given by the offender in that report with a considerable degree of caution, for a number of reasons. First, as I have said, it is not founded on direct evidence from any person. Secondly, the history given by the offender to the psychiatrist contains a number of undoubted untruths. For example, the offender asserted that he never possessed a gun on the morning in question, an assertion that I completely reject. I also reject without difficulty the assertion that the offender has no memory of the shooting, not least because of what he said in the intercepted conversation. Thirdly, during the trial, although the offender did not give evidence, he instructed his counsel to put propositions to witnesses about who was truly responsible for the death of the deceased that were quite false.

1. Having said that, I am prepared to accept on the balance of probabilities matters of background with regard to the offender.

1. The offender was born in January 1964. Accordingly, he was aged 48 as at the date of the offence and is now aged 49. He grew up in the suburbs of Sydney with his father, who was a sheet metal worker, his mother, and three younger brothers. He also has a half-sister some years younger than himself. His father died tragically in an industrial accident when the offender was aged seven years. His mother remarried, but during his childhood the offender spent quite a bit of time in the care of his maternal grandparents. I infer that his upbringing was not attended by privilege or indulgence.

1. The offender suffered from learning difficulties at school and left during year 9. By that stage he was already suffering from a serious problem with prohibited drugs, including heroin, and that issue has dominated and damaged his life for many years since then. Sadly, his three brothers have died as a direct or indirect result of abuse of the same substances.

1. As one might expect, the offender has a lengthy record of criminal offences. It began in 1979, when he was aged 15 years. Much of it is of a less serious nature, and includes such matters as malicious damage, common assault, shoplifting, and, as I have said, repeated driving offences. The major exception to that general proposition is that in 1987 he was convicted of multiple armed robberies and sentenced to a head sentence of imprisonment for 15 years with a non-parole period of imprisonment for 10 years. It seems that he served, after remissions, about 7 years of that non-parole period. I accept on the balance of probabilities that, at the time of the commission of those armed robberies, the offender was suffering from a drug addiction that was out of control.

1. As at the date of this offence, 2 March 2012, the offender had been taking methadone for many years, and it seems that his abuse of heroin had abated. However, he was still abusing methylamphetamine, and as I said, had injected himself with it the night before. It is also clear that he was well-entrenched in the drug scene of Tamworth.

1. Over the years, he had been treated for paranoia by way of medication prescribed by a psychiatrist. That condition was, I am satisfied, drug induced. The report of the forensic psychiatrist records that, in the past, he has suffered from substance induced psychotic disorder, and currently suffers from substance use disorder. But to be clear, he does not suffer from any delusional beliefs, or brain injury, or underlying psychotic illness.

1. He is ill with hepatitis C, no doubt as a result of intravenous drug use. He is not unintelligent, and has sought to use the past 18 months in custody constructively, including by reading and developing an interest in botany.

Remorse

1. I turn to the question of whether the offender is remorseful for his actions. He ran a trial, as of course he was perfectly entitled to do. At that time and since, there is nothing in the conduct of his litigation to suggest acceptance of responsibility on his part for his crime in the slightest. I repeat that his case at trial was based upon the completely false proposition that another person was responsible for the shooting of the deceased.

1. Having said that, immediately after the shooting the offender screamed an apology. Furthermore, when police attended very shortly afterwards and the offender was lying gravely wounded on the ground, he was heard to be saying repeatedly "I'm sorry".

1. Finally, whilst in hospital and suffering from delirium weeks after the shooting, it is noteworthy that the offender said to a treating psychiatrist that he "had shot someone and needed to give something back to humanity".

1. All those facts are suggestive that, at least in the past, the offender has been remorseful for what he had done.

1. On the other hand, as I have said, the offender ran a trial founded on an effort to shift blame to another. In the intercepted conversation with his partner many weeks after the shooting, he referred to the deceased in derogatory terms. He said little in that conversation to indicate remorse, but rather focused on the years of incarceration ahead. In the psychiatric report there is no material suggestive of remorse, or acceptance of responsibility, or even realisation of the gravity of what he has done. As I have said, at no stage has he given evidence before me.

1. In all of the circumstances, I am unable to be satisfied on the balance of probabilities that the offender is remorseful for this murder.

Legislation

1. It is convenient now to turn to the relevant legislation. I shall consider the applicability of s 19B of the Act first, because, if it is applicable, its operation renders consideration of the other provisions otiose.

1. Section 19B of the Act is as follows:

"19B Mandatory life sentences for murder of police officers

(1) A court is to impose a sentence of imprisonment for life for the murder of a police officer if the murder was committed:

(a) while the police officer was executing his or her duty, or

(b) as a consequence of, or in retaliation for, actions undertaken by that or any other police officer in the execution of his or her duty,

and if the person convicted of the murder:

(c) knew or ought reasonably to have known that the person killed was a police officer, and

(d) intended to kill the police officer or was engaged in criminal activity that risked serious harm to police officers.

(2) A person sentenced to imprisonment for life under this section is to serve the sentence for the term of the person's natural life.

(3) This section does not apply to a person convicted of murder:

(a) if the person was under the age of 18 years at the time the murder was committed, or

(b) if the person had a significant cognitive impairment at that time (not being a temporary self-induced impairment).

(4) If this section requires a person to be sentenced to imprisonment for life, nothing in section 21 (or any other provision) of the Crimes (Sentencing Procedure) Act 1999 or in any other Act or law authorises a court to impose a lesser or alternative sentence.

(5) Nothing in this section affects the obligation of a court to impose a sentence of imprisonment for life on a person convicted of murder in accordance with section 61 of the Crimes (Sentencing Procedure) Act 1999.

(6) Nothing in this section affects the prerogative of mercy.

(7) This section applies to offences committed after the commencement of this section."

1. There is no dispute that the offence was committed after the commencement of the section.

1. And it can be seen from the terms of the section that I must impose a sentence of imprisonment for life if certain circumstances that engage the section are established, unless certain circumstances that disengage it are established.

1. The section and the extrinsic materials relating to it are silent on the question of onus and standard of proof of those circumstances. The parties submitted that the circumstances engaging the section would need to be proven by the Crown beyond reasonable doubt, and that the circumstances disengaging the section would need to be proven by the offender on the balance of probabilities. That approach is in accordance with long-standing authority with regard to sentencing generally: see The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270 and R v O'Neill (1979) 2 NSWLR 582; 1 A Crim R 59. I accept that joint submission.

1. Turning to the disengaging circumstances first, the offender was not under the age of 18 years at the time of the offence.

1. Secondly, senior counsel for the offender expressly disavowed any reliance on the circumstance that, at the time of the offence, the offender "had a significant cognitive impairment ... (not being a temporary self-induced impairment)". Quite apart from that disavowal, there is no evidence in support of that proposition, and it is therefore not established to any degree.

1. It follows that the two disengaging circumstances have no role to play.

1. It can be seen that there are a number of circumstances that need to be established by the Crown before the section is engaged.

1. The first is that the victim of the murder was a police officer. There is no dispute about that, and it is unquestionably established.

1. Nor is there dispute about the second; namely, that the murder was committed "while the police officer was executing his ... duty", and I am satisfied of it to the requisite degree.

1. The third engaging circumstance is that the offender "knew ... that the person killed was a police officer". Yet again, that is not disputed, and on the evidence is beyond dispute.

1. Section 19B(1)(d) contains the final two circumstances that engage the mandatory penalty. They are that the offender "intended to kill the police officer" or "was engaged in criminal activity that risked serious harm to police officers." Each of those circumstances is in dispute between the parties.

1. The drafting of the latter part of the provision is a little unusual. To the extent that it speaks of an offender who "was engaged in criminal activity", one wonders whether it is referring to the context in which the act causing death took place, rather than the act causing death itself. I consider that such an interpretation could lead to anomalous results. I shall return to that question later, to the extent necessary.

1. In short, as a first step I need to determine whether the Crown has established beyond reasonable doubt that, at the time he murdered the deceased, the offender intended to kill. That fact is not implicit in the verdict of the jury, because the Crown case with regard to the state of mind of the offender was left to the jury on further bases.

1. If I am not so satisfied, I need to consider the second question; namely, whether the Crown has established beyond reasonable doubt that, at the time of the murder, the offender was engaged in criminal activity that risked serious harm to police officers.

1. With regard to the question of whether or not it has been established beyond reasonable doubt that at the time he produced a loaded revolver, pointed it at the deceased, and fired it, the offender intended to kill the deceased, I make the following findings of fact. To be clear, I am satisfied of any inculpatory facts to which I refer beyond reasonable doubt.

1. First, when the offender fired, the muzzle of the revolver was not more than 3.5 metres from the body of the deceased.

1. Secondly, the deceased did not become aware of the presence of the firearm until less than a second before the shot was fired. It is not the case, for example, that the offender produced the firearm and sought to threaten the deceased with it in an effort to escape.

1. Thirdly, the offender and the deceased were each standing on the grassed area of the block of units engaged in a conversation. And yet, as I have said, the audio recording establishes that the deceased did not become aware of the presence of the firearm until a moment before the shot was fired. The revolver was tendered in evidence and I have held it in my hand. It is a substantial weapon and does not have a short barrel. At the time of the conversation, the offender concealed the presence of the firearm from the deceased, though the precise mechanism of how he did so is unclear to me. Perhaps the offender was turned away slightly from the deceased, or had the revolver hidden in his clothing. However it was achieved, I am satisfied, in all of the circumstances, that that concealment was deliberate.

1. Fourthly, having passed through the wrist of the deceased, the fatal shot entered his chest, as opposed to one of his extremities.

1. Fifthly, almost immediately after the shooting, the offender screamed the word "Die".

1. Sixthly, in the covertly recorded conversation with his partner, the offender made no reference to the death of the deceased as having been unintended, or some sort of terrible accident. That was in the context of Ms Strudwick having explained to the offender that the Senior Constable had indeed died.

1. There is some material, founded on the state of the revolver when retrieved by the police and expert analysis of the sound recording, to support a suspicion that the offender fired two shots, not one. However, I do not consider that that fact is sufficiently established for me to take it into account with regard to this question, and I put that suspicion to one side.

1. Separately, I accept that, at the time of the shooting, the offender was affected to some unclear degree by methylamphetamine. It had the effect of making him rather more impetuous and aggressive than he would otherwise have been. But I emphasise that there is nothing whatsoever in the objective evidence of the behaviour of the offender at the service station, or in his driving, or in the things that he said before or after the shooting, or in his recounting of events to his partner weeks later, to suggest that he was, as a result of taking that drug, in any way divorced from reality at the time when he pulled the trigger. On the other hand, because of the lack of clarity about the matter, I do not rely upon intoxication by that drug as a matter supportive of an intention to kill.

1. Taking into account the combined effect of all of those matters, I am satisfied beyond reasonable doubt that, at the time the offender murdered the deceased, he intended to kill him. That intention may have been held only fleetingly, and utterly irrationally, but nevertheless I consider that it has been established to the criminal standard.

1. Even if I were not satisfied of that engaging circumstance, I would separately be satisfied beyond reasonable doubt that, in producing and firing a loaded handgun at close range in the direction of the deceased, the offender was engaged in criminal activity that risked serious harm to police officers.

1. And even if, in truth, the latter part of the provision applies not to the act causing death but rather to the context surrounding that act, I would in the alternative be satisfied beyond reasonable doubt that by possessing and producing a loaded firearm in a public place in such a way that it was pointing in the general direction of a police officer who was standing a short distance away, the offender was engaged in criminal activity that risked serious harm to police officers.

1. It follows that I am satisfied beyond reasonable doubt of an intention to kill and, to the extent necessary, the two alternatives founded on s 19B(1)(d). The result is that the mandatory life sentence is to be imposed. In the circumstances there is no need, in my opinion, for me to discuss the role of the two guideposts to which I have referred, or s 61 of the Sentencing Act.

1. Finally, before imposing sentence, I wish to state that there are other persons who should be in the dock with the offender but who are not. If the offender had been armed with an iron bar, or even a knife, it is highly unlikely that this encounter would have resulted in fatality. Because of his possession of a handgun on the morning of 2 March 2012, one life - that of Senior Constable David Rixon - has been irrevocably taken. Another life - that of Michael Jacobs - has been ruined. And that is to say nothing of the lives of all of the other persons who I infer have suffered grievously, and will continue to do so, as a result of this murder. Those who trafficked a lethal handgun - no doubt for profit - into the hands of a drug addict who has at times suffered from psychosis bear a substantial share of the responsibility for this senseless tragedy.

Imposition of sentence

1. Michael Allan Jacobs, you are convicted of the offence of murder. I sentence you to imprisonment for life.

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Decision last updated: 04 October 2013