R v Jenkin

[2003] NSWCCA 378

CITATION:	R v Jenkin [2003] NSWCCA 378
HEARING DATE(S):	Monday 1 December 2003
JUDGMENT DATE:	1 December 2003
JUDGMENT OF:	Wood CJ at CL at 1, 26; Smart AJ at 25
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - application for leave to appeal against severity of sentence - detain with intent to hold for advantage - assault with intent to rob in circumstances of aggravation - whether sentence manifestly excessive.
LEGISLATION CITED:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 Regina v McGourty [2002] NSW CCA 335 Regina v Thwaites NSWCCA 6 October 1993
PARTIES :	Regina Mark Kenneth Jenkin
FILE NUMBER(S):	CCA 60320/03
COUNSEL:	F Guy (Crown) D Brezniak
SOLICITORS:	C. K. Smith (Crown) S. E. O'Connor

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/41/0113
LOWER COURT JUDICIAL OFFICER :	Phelan DCJ

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60320/03

WOOD CJ at CL
SMART AJ

Monday 1 December 2003

REGINA v MARK KENNETH JENKIN

Judgment

1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of the sentences imposed upon him by Judge Phelan in the District Court on 12 February 2003. This followed upon his conviction, after trial, of two offences, namely detain with intent to hold for advantage contrary to s 90A of the Crimes Act 1900 (since repealed), for which, in this case, the maximum available penalty was imprisonment for twenty years; and assault with intent to rob in circumstances of aggravation, contrary to s 95(1) of the Crimes Act for which the maximum available penalty is, similarly imprisonment for twenty years.

2 The sentence imposed in relation to the second of these offences was one of a fixed term of four years to commence from 7 March 2001, and the sentence imposed for the first of these offences was imprisonment for ten years to commence on 8 March 2002, and to expire on 7 March 2012. A non parole period of seven year was set to commence on 8 March 2002. The effective overall sentence, with accumulation, was accordingly one of eleven years imprisonment with a non parole period of eight years.

3 It is appropriate for the purposes of this applications to adopt the facts, which were read on to the record by his Honour, having been earlier reduced to a statement, which had been provided to the Crown and to the applicant’s legal representatives, and then accepted without comment.

4 His Honour said in this respect:

“The victim, Mohamed Seragul Miah was a security guard employed overnight at the McDonalds Construction site at Warrawong. Towards the end of his shift at about 6.05am on 5 March 2001 he went to the nearby Commonwealth Bank ATM and withdrew $200. On his return he was about to collect his things before catching the bus home when he was grabbed by his left side by a ‘black man’ wearing a black hat, a mask and latex gloves, who was carrying a gun. The man pushed him into the portable toilet block.
The site foreman Mr Allen then became concerned when the victim failed to return and having heard the commotion in the nearby toilet block, went to investigate. When he entered the block he was confronted by a gun wielding man in dark clothing with a black stocking over his face and wearing a baseball cap. He was ordered into a shower cubicle where he remained.”

5 After noting that there was DNA evidence to link the cap and gloves of the “black man” with a co offender Damien Cuff, his Honour continued:

“When the victim failed to comply with an order to get up against the wall, he was punched on the left cheek and fell to the floor bleeding from the mouth. Cuff searched one of the two bags the victim was carrying and located some credit cards including the Commonwealth Bank key card. He took the victim’s mobile phone and wallet containing the $200 which he had withdrawn from the ATM. He then ordered the victim to reveal his pin number. Cuff had in the meantime rung on a mobile directing the second person to the shed which he temporarily left to show the latter the whereabouts of the shed. The second person, the offender, Mark Jenkin, then entered and proceed to examine the victim’s papers, the victim having a folder of them. The offender had a knife next to him as he did so. He had a mask or stocking on, gloves and a pistol.
The offender then demanded the pin number to the key card which the victim refused to give him. Mr Allen then told them that workmen would be assembling on the site. The offenders decided to leave after checking the veracity of that contention, Cuff saying, ‘If he won’t give us the pin numbers we will take him with us’. The victim said he gave them the pin number but he could only remember the Commonwealth one.
The offender, Jenkin, then frogmarched the victim towards a nearby red Commodore station wagon bearing the number plates JVE-383, though the plates were not identified at that stage. The victim was forcibly placed in the rear of the vehicle and pushed down with a blanket over him and a leg placed across him so that he could not breathe properly.
The car was driven by Sally McGourty who was in a relationship with Jenkin. The victim appealed to the woman but was told by her to ‘shut up’...
Shortly after this she withdrew $600 from an ATM at Figtree from the victim’s Commonwealth Bank Account. There were other efforts to withdraw more money but difficulties occurred because of the daily limit on withdrawals.
The two male offenders together with the female and the victim drove to bushland near the Mt Keira lookout and Cuff threatened to torture the victim if he did not reveal the remaining pin numbers. The victim maintained that he did not know them. They then drove a short distance and armed with a blanket, rope, knife and tape, they pushed him well into the bush. The victim thought they were going to kill him and pleaded for his life saying that he had small children, kneeling and touching the offender, Jenkin on the leg, only to be kicked repeatedly seven or eight times on the head and leg.
The offenders persisted in trying to obtain the pin numbers. They bound his arms heavily with tape such that he suffered a fracture of his right wrist resulting in permanent damage in that he cannot bend his right fingers and wrist. His mouth was heavily taped and he was left in a sitting position tied to a tree with a rope around his neck and torso. Some time later he was found by a police officer with a tracker dog, groaning with a swollen eye, his face distorted from the tightness of the tape, a bloody nose and teeth with cuts and bruising. He was shaken and shocked, he was unsteady on his feet and had to be assisted. He was taken to hospital for treatment by ambulance, the treatment consistent of surgical intervention in respect of his fractured wrist.
Police had already been alerted to the presence of the red car in the Mt Kembla area and a police car came upon it with the three co offenders’ near it. When they drew arms and ordered them to get on to the ground, Ms McGourty did but the two male offenders fled. She was arrested but made no admissions.”

6 His Honour went on to note the eye witnesses and DNA evidence, which was relied upon, as demonstrating that the male co offender with red hair had been the present applicant, and also as showing that the red Commodore had been in his possession at the relevant time.

7 He next dealt with the submission of the applicant’s counsel to the effect that at the beginning of the kidnapping he had taken only a passive role, a proposition that his Honour dismissed for the following reasons:

“Mr Allen’s evidence described the second man as demanding the pin numbers of the victim:
‘Q. Is there a difference between his voice and the voice of the first man?
A. Definitely different. The second one did seem to get more aggressive, not in his practical, but in the way he spoke, his voice was definitely pitched.’
In fairness to the offender, Mr Allen heard no further sounds after the second man’s entry consistent with further assaults.
Later, after warning them of the imminent arrival of the workmen, the first man went outside to confirm that. On his return he said, ‘Well he won’t give us the pin numbers, we’ll take him with us’. The second man ie the offender, left with the victim. Mr McGrory described seeing the victim limping which attracted his attention with a man behind him with his left hand right around the front of him. That man had red hair. That man was overheard to say, ‘You won’t do that again’. The first man had, as I had said, short brown hair consistent with Cuff’s hair. The offender’s hair is red. This evidence clearly refutes the contention that the offender took a passive role in the early stages of the kidnapping.”

8 His Honour made appropriate reference to the applicant’s prior record which had commenced in the Children’s Court and was very extensive. It involved multiple convictions for offences of dishonesty, including stealing, break enter and steal, as well as offences of violence, which had seen him subjected to bonds and control orders in the early days, followed, from late 1992, by a number of sentences of imprisonment.

9 He also quoted extensively from a report of a psychologist, Kerry Watson, and from the pre sentence report, which were tendered during the sentencing proceedings. These documents showed that he had not responded favourably to past supervision by the Probation and Parole Service, having been in breach of community service and parole orders; and that he has had long standing and deeply entrenched problems, presenting as an anti social personality disorder, which required psycho therapy and drug rehabilitation.

10 His Honour said in a passage, which could not be seriously questioned that ‘unchanged he is a continuing danger to the community’ and that ‘he has a chronic problem with authority’.

11 The need for close supervision and therapy was found to be a special circumstance justifying a reduction in the ratio between the non parole period and the head sentence.

12 The objective seriousness of this matter was assessed by his Honour as having been “very high”, being one in which the applicant’s behaviour had been callous and for which he had demonstrated no remorse.

13 Since the present application depends in part, if not wholly, on the question of parity it is appropriate to note the outcome in relation to the co offenders. Ms McGourty, who pleaded guilty to one count of kidnapping was originally sentenced by Goldring DCJ to a suspended sentence of imprisonment for two years. Four matters were taken into account on a form 1. The Crown appeal against that sentence was allowed on 13 August 2002 (Regina v McGourty [2002] NSW CCA 335). It was held that the sentence was disproportionate to her objective criminality for an offence of kidnapping which was towards the top of the range of objective criminality for an offence of its kind, that proper respect had not been shown to the principle of totality (in relation to the form 1 matters), and that the sentencing judge had been inappropriately swayed by the offender’s favourable subjective circumstances. She was accordingly re-sentenced to imprisonment for three years with a non parole period of two years.

14 The co offender Cuff, who had withdrawn his earlier pleas to substantially similar offences was still awaiting trial at the time that his Honour came to sentence the applicant. He has since been found guilty at trial and was thereafter sentence by Judge Bell, in the District Court, for the offence of kidnapping, to imprisonment for a fixed term of four years, to commence on 22 February 2002; and for the offence of armed robbery to imprisonment for eleven years to date from 22 February 2003, with a non parole period of eight years, similarly to commence on 22 February 2003. The sentence imposed was effectively one of twelve years imprisonment with a non parole period of nine years.

15 When sentencing Cuff, Bell DCJ made reference to the judgment of this court in relation to Ms McGourty. He did not have before him the reasons of Phelan DCJ concerning the present applicant, but it is clear that he misunderstood the sentencing order which had been made, insofar as he recorded that this applicant had received a ten year sentence for the aggravated assault with intent to rob offence, as opposed to receiving it for the kidnapping charge.

16 It had been his express, stated intention to impose the same sentence on Cuff for the kidnapping offence as had been imposed on the applicant and it is obvious that in this respect the sentencing order did not reflect his true intention. Cuff has lodged an appeal in respect of his conviction and sentence, which is yet to be heard.

17 The argument on parity has no substance whatsoever. As was made clear in Lowe v The Queen (1984) 154 CLR 606 and Postiglione v The Queen (1997) 189 CLR 295 a Court of Appeal will only intervene on the grounds of disparity of sentence where there is a manifest discrepancy such as to ‘engender a justifiable sense of grievance’.

18 There could be no such sense of grievance in relation to the sentence imposed upon McGourty, since the facts concerning her are different in the following material respects:

(a) she surrendered herself immediately to police;

(b) she pleaded guilty and was entitled to a discount for that circumstance under s 22 of the Crimes (Sentencing Procedure) Act;

(c) she had a significantly lesser role in the enterprise and was not personally responsible for any physical assault on the victim;

(d) she did not face sentence for the offence of assault with intent to rob;

(e) she had no prior convictions;

(f) she was a person of previously good character, who was assessed as having a good prospect of rehabilitation;

(g) the sentence imposed was one that, in accordance with the approach in relation to the Crown appeals, was the shortest that could have been passed, consistent with proper sentencing principle.

19 In relation to Cuff I am similarly persuaded that there is no room for any legitimate sense of grievance to be entertained, by the applicant, when consideration is given to the overall sentencing order, and to the reason why a lesser sentence for the kidnapping offence was imposed. In practical terms, there was an equivalent sentence, after allowance was made for the respective roles of the two offenders, a role which was only marginally more serious in the case of Cuff.

20 To reduce the kidnap sentence because of the erroneous understanding of Bell DCJ would only be to compound error, and would result in a sentence that would be totally disproportionate to the objective criminality of the applicant.

21 This case involved offences extending over some hours, in the course of which the victim was exposed to gratuitous cruelty and threats, and as a result of which he suffered a significant and permanent, disabling injury.

22 That victim was working in an occupation that left him vulnerable to attack, and as such he was entitled to the protection of the courts: Regina v Thwaites NSWCCA 6 October 1993.

23 The seriousness of the offences is further compounded by the fact that they occurred in company, and involved the use of a gun and knife.

24 I would grant leave to appeal but I would dismiss the appeal.

25 SMART AJ: I agree.

26 WOOD CJ AT CL: The order of the Court will be as I have proposed.

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Last Modified: 12/16/2003