R v Jenkin (No 19) (Sentence) - [2019] NSWSC 609

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: R v Jenkin (No 19) (Sentence) [2019] NSWSC 609
Hearing dates: 6 December 2018; 20 February 2019; 12 April 2019
Decision date: 23 May 2019
Jurisdiction: Common Law
Before: Hamill J
Decision:
Sentenced to a total effective term of imprisonment of 19 years with a total effective non-parole period of 14 years (see [46]-[47] for individual sentences).

Catchwords:
CRIMINAL LAW – sentencing – manslaughter – offender found not guilty of murder – no intention to cause really serious injury – unlawful and dangerous act – detention of victim for several days – series of assaults during detention – victim homeless alcoholic – victim vulnerable – financial motivation of detention–assaults caused by frustration and temper – treatment of corpse – impact on victim’s daughter – victim gave best life advice – all life precious – all life equal
CRIMINAL LAW – sentencing – conspiracy to murder – motivation to interfere with missing person or homicide investigation – offender instructs stepbrother to murder a potential witness – plan to give witness a “hot shot” – maladroit effort to carry out plan – accumulation of sentences – totality of criminality – special circumstances
Legislation Cited: Crimes Act 1900 (NSW), ss 24 and 26
Crimes (High Risk Offenders) Act 2006 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2) and 28
Cases Cited: R v Baker [2017] NSWCCA 233
R v Hines (No 3) [2014] NSWSC 1273
R v Jenkin (No 18)(Verdict) [2018] NSWSC 978
R v Lindstrom [2008] NSWSC 198
R v Paul William Turner [2018] NSWSC 1929
Category: Sentence
Parties: Regina
Mark Kenneth Jenkin
Representation:
Counsel:
M Fox (Regina)
G Corr (Offender)
Solicitors:
Director of Public Prosecutions, NSW (Regina)
O’Brien Solicitors (Offender)

File Number(s): 2015/00345562
Publication restriction: Non-publication orders were made on 9 May 2018 protecting the identity of 15 witnesses. There is to be no publication of the identity of the deceased’s daughter.

Judgment

On 24 November 2015, while he was in custody for unrelated offences, Mark Jenkin was charged with the murder of Mark Dower and conspiracy to murder RS. On 27 June 2018, following an eight week trial by Judge alone, Mr Jenkin was found not guilty of murder but guilty of manslaughter. He was also found guilty of the conspiracy to murder RS. [1] Mr Jenkin is now to be sentenced.
1. R v Jenkin (No 18)(Verdict) [2018] NSWSC 978.
Mr Dower’s death was the culmination of days of intermittent violence, inflicted by the offender, after Mr Dower was taken to Mr Jenkin’s apartment on 22 or 23 March 2015. While he was in custody, the offender conspired with his stepbrother to murder RS. RS had seen Mr Dower’s body in the offender’s apartment and later became a key witness in the prosecution case. The conspiracy was calculated to ensure that the offender was not connected to Mr Dower’s death.
Both of the offences are extremely serious. This is reflected in the maximum penalty of 25…

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.

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Details

Case: [2019] NSWSC 609
Decision Date: 23 May 2019

CaseChat Overview and Summary

In this case, the appellant was convicted of conspiracy to murder and manslaughter. The appellant, who was found not guilty of murder, had detained a victim for several days and subjected them to a series of assaults, ultimately resulting in the victim’s death. The victim, a homeless alcoholic, was considered vulnerable. The appellant had financial motivation for the detention, and the assaults were driven by frustration and temper. The appellant also treated the victim's corpse in a disrespectful manner. The victim had provided valuable life advice to the appellant’s daughter, emphasising the importance of all lives and their equality.

The primary legal issues before the court were the appropriate sentencing principles to apply to the appellant's crimes and the cumulative effect of the sentences for the conspiracy to murder and the manslaughter. The court had to consider the totality of the criminality, including the special circumstances of the case such as the vulnerability of the victim, the appellant's motivation, and the disrespectful treatment of the victim’s corpse. Additionally, the court needed to balance these factors against the appellant's lack of intent to cause serious harm or death, and the maladroit nature of the conspiracy to murder.

The court held that the appellant’s crimes were of high culpability due to the prolonged detention and the series of assaults on a vulnerable victim, which ultimately led to the victim's death. Despite the appellant’s lack of intent to cause really serious harm, the cumulative effect of the conspiracy to murder and the manslaughter warranted a severe sentence. The court also took into account the special circumstances, including the appellant’s motivation, the disrespectful treatment of the victim’s corpse, and the impact on the victim’s family. In light of these factors, the court deemed it necessary to impose a sentence that reflected the seriousness of the crimes and provided adequate deterrence and denunciation.

The court ordered that the appellant be sentenced to a term of imprisonment, with specific details regarding the length and conditions of the sentence to be determined in accordance with the sentencing principles outlined in the judgment.

Orders