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

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

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.

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

Legislation

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.

The second is Division 1A of the Crimes (Sentencing Procedure) Act 1999 (to which I shall refer as "the Sentencing…

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 Jacobs (No 9)

Details

AGLC: R v Jacobs (No 9) [2013] NSWSC 1470
Case: [2013] NSWSC 1470
Decision Date: 04 October 2013

CaseChat Overview and Summary

The case before the court involved an appeal by the respondent, Jacobs, against his conviction and sentence for the murder of a police officer. The respondent was found guilty of the murder of a police officer, which occurred during the course of a pursuit, and was subsequently sentenced to imprisonment for life. The respondent appealed against both his conviction and sentence, raising issues concerning the applicability of section 19B of the Crimes Act and the standard of proof for certain statutory factors. The appeal was heard by the High Court of Australia.

The central legal issue before the court was whether section 19B of the Crimes Act applied to the respondent's actions. This section mandates a life sentence for anyone convicted of murder where the offender had the intention to kill or was engaged in criminal activity that risked serious harm to police officers. The court was also required to determine whether the respondent had the requisite intention to kill and whether his actions during the pursuit constituted criminal activity that risked serious harm to police officers. Additionally, the court needed to assess whether the respondent had a substantial cognitive impairment and the standard of proof required for the statutory factors.

The court found that the respondent did not have the intention to kill, and therefore, the first part of section 19B did not apply. However, the court did find that the respondent's actions during the pursuit constituted criminal activity that risked serious harm to police officers. The court held that the standard of proof for these statutory factors was the balance of probabilities, which was satisfied in this case. The court further found that the respondent did not have a substantial cognitive impairment. Consequently, the court held that section 19B applied to the respondent's actions, and a life sentence was appropriate. The appeal against the conviction and sentence was dismissed, and the original sentence was upheld.

The High Court of Australia dismissed the appeal and upheld the original conviction and sentence of imprisonment for life.

Orders