R v Jenkins

[2017] NSWSC 593

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	R v Jenkins [2017] NSWSC 593
Hearing dates:	6 April 2017
Date of orders:	18 May 2017
Decision date:	18 May 2017
Jurisdiction:	Common Law - Criminal
Before:	Mathews AJ
Decision:	For the manslaughter of Cheyne Duncan, I sentence you to imprisonment consisting of a non-parole period of five years and six months, commencing on 19 September 2013 and expiring on 18 March 2019, with a balance of term of three years and six months, commencing on 19 March 2019 and expiring on 18 September 2022, making a total sentence of nine years. The earliest date on which you will be eligible for release on parole will be 18 March 2019.
Catchwords:	CRIMINAL LAW – sentence – manslaughter – three possible bases for jury’s verdict – offer to plead guilty to manslaughter in the Local Court rejected by Crown – found not guilty of murder but guilty of manslaughter by jury at trial – discount applied to sentence for offer – underlying mental problems plus history of drug abuse – special circumstances found
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	R v Oinonen [1999] NSWCCA 310
Category:	Sentence
Parties:	Regina Brandon Jenkins
Representation:	Counsel: Mr R Herps (Crown) Mr G Scragg (Offender) Solicitor: Solicitor for the Director of Public Prosecutions (Crown) Jeffreys Lawyers (Offender)
File Number(s):	2013/284135
Publication restriction:	No
Decision under appeal	File Number(s): 2013/00284135

Judgment

Introduction

1. HER HONOUR: On 30 January 2017 the offender, Brandon Jenkins, was indicted on a charge that, on 18 September 2013, he murdered Cheyne Duncan. He pleaded not guilty, and a jury trial then took place. On 3 March 2017 the jury returned with a verdict of not guilty of murder but guilty of manslaughter. A sentencing hearing later took place, in which both the Crown and the offender’s legal representative tendered a number of documents and made lengthy submissions. Mr Jenkins now comes to be sentenced for the offence of manslaughter.

2. It is appropriate to commence with an account of the events leading up to the offence.

Circumstances leading up to the offence

3. The fatal stabbing of Cheyne Duncan took place at approximately 3.20 pm on Wednesday 18 September 2013. He and the offender had never met each other before. In order to describe the events leading up to the killing it is necessary to say a little about the background of the offender. I will be describing it in more detail later.

4. The offender, then aged nearly 22, was unemployed at the time. He had been living at Coffs Harbour, but had recently returned to live with his mother in Bidwill. He had a long history of drug and alcohol abuse, involving both illegal and prescription drugs, particularly Xanax. Close to midnight on the night before the killing, namely on 17 September 2013, he was found lying on a roadway in western Sydney. The police picked him up and asked him where he was living. He gave them an address which turned out to be where his mother had lived some time previously. He could not remember his mother’s current address, so the police took him to Westmead Hospital for his own protection. The hospital notes indicate that he was profoundly thought disturbed at the time. At 8.15 on the morning of 18 September he was hallucinating as to the patient in the next door bed. He was diagnosed as suffering from drug induced delirium. The notes show that ten minutes later, at 8.25am, the offender absconded from the hospital.

5. The next sighting of the offender was at 10.30 that morning. A police officer observed him behaving in a strange manner near Blacktown Railway Station. The offender said that he was on his way to get methadone, but he was walking in the opposite direction from the hospital. By way of interesting aside, the records from the Methadone Clinic at the hospital showed that the offender collected his methadone from the clinic every day except that morning, 18 September. The offender told the officer that he was “looking for his mate”, but he could not remember his mate’s name. The officer described his speech as slurred, and his eyes as glassy.

6. At about lunchtime that day the offender attached himself to a couple, Greg Austin and his wife Mary Rivers, who were at Blacktown at the time. They had never seen him before, they said. He asked them if they had any methadone, and continued to follow them around. At one point Mary Rivers left the two of them and went to her home at Doonside to get some methadone. After she returned to Blacktown Station to wait for her husband she had a confrontation with Cheyne Duncan, the deceased. She said that he was yelling and swearing at her, and he punched her in the face, albeit without a great deal of force. He then left. She threw a bottle of beer after him, but it did not strike him. When her husband arrived shortly afterwards, accompanied by the offender, she told him about this confrontation.

7. I do not propose to go through all the movements of the Austins and the offender that afternoon. Suffice it to say for present purposes that, at about 3.20 that afternoon, the Austins were walking along Hill End Road, Doonside, in the hope of seeing the Austins’ grandson who attended a local school. As had been happening all that afternoon, they were closely followed by the offender. On the other side of the road the Austins saw Cheyne Duncan’s partner, Jessica Norton and a friend of hers, Sarah Wilson, together with their respective children. The Austins, followed by the offender, immediately crossed the road and approached Ms Norton. The description of the conversation which followed varied between the witnesses. The Austins described a much more polite approach on their part than did Ms Norton or Ms Wilson. One thing is certain, namely that there was a confrontation between the offender and Ms Wilson. This was apparently precipitated by the offender putting his hand under the pram she was pushing, and trying to take her bag. Ms Wilson then rang her partner, but he was too far away to come to the scene.

8. Shortly afterwards the deceased, Cheyne Duncan, arrived in his car, a silver Lancer, which swerved around the corner and stopped sharply near the kerb beside where the others were standing. He immediately got out of the car and went straight up to Greg Austin and started to fight with him. Different witnesses gave significantly different descriptions of the nature of the fight. Some said that Mr Duncan was striking Mr Austin in the face with a hammer. Others said that they were punching and head-butting each other. Two things we know with certainty: one is that Cheyne Duncan was significantly larger than Greg Austin; also that Mr Austin was later found to have sustained mild lacerations to the left side of his forehead. These were potentially consistent with his having been struck with a hammer, although there was a powerful argument available that, if Mr Duncan had been striking Mr Austin as heavily as some witnesses described, one would have expected his injuries to have been much more serious. In addition, Mr Duncan was wearing a number of rings on his fingers, which could also have caused these lacerations. On the other hand, Dr Du Flou, who conducted the post mortem examination of the deceased, said that he found no facial injuries consistent with his having been punched immediately before his death.

9. Whatever the nature of the fight, it was brought to an abrupt end when the offender came between the two of them, having, on all accounts, removed a knife from the front of the shorts he was wearing. He plunged the knife into the right side of Mr Duncan’s chest, producing large spurts of blood. The stab wound penetrated vital parts of his body, and Mr Duncan died shortly afterwards.

10. As to the offender, he ran away from the scene towards Doonside Station. On the way he hailed down a bus, which stopped for him. CCTV cameras inside the bus showed him sitting towards the back of the bus, taking off his shirt and removing a knife. He then wiped the knife on his shirt and secreted it in the back of the seat in front of him. It was found by some children shortly after the offender had got off the bus. They handed it to the driver, which led to the CCTV cameras being downloaded.

11. On the morning of Thursday 19 September the offender was arrested at Blacktown Hospital, where he had gone to collect his methadone. He was taken to the Blacktown Police Station where a lengthy record of interview was conducted. He was asked about his movements the previous day. At first he said that he had woken up at his mother’s home, and apart from going shopping with his mother, he had spent the whole day at her home, most of it asleep. After being given the accounts of the various eye witnesses, together with the CCTV from the bus, he gradually changed his story. Eventually he conceded that he was present at the scene. He said that he thought it was Greg Austin who had stabbed the deceased then “chucked” the knife. He, the offender, took the knife and ran off, in order to protect Greg Austin, whom he then described as his “mate”, having previously denied ever having had any contact with him. He repeatedly denied that he himself had stabbed the deceased.

12. The offender was later charged with the murder of Cheyne Duncan. He has been in custody ever since.

The course of the trial

13. The trial lasted almost five weeks. Over 30 witnesses were called in the Crown case. The most significant of these were the numerous eye witnesses to the events in question, as well as the events of earlier that day, together with the various expert witnesses. Apart from the forensic pathologist who conducted the post mortem examination of the deceased, the most significant expert witnesses were psychiatrists and pharmacological experts who gave evidence as to the offender’s likely mental state at the time of the killing, given his history of excessive drug use at that time. In addition, the offender gave evidence in the defence case, as did further psychiatric and pharmacological experts. The offender admitted that he lied during his interview on 19 September, saying that he wanted to distance himself from the events at that time. He admitted that he had punched Cheyne Duncan in the chest, in order to stop him from inflicting further injury upon Greg Austin. He said that he could not recall holding a knife at the time.

14. At the end of the evidence in the case, the jury was given a “question trail”, setting out the various matters to be determined by them. There were three pathways by which they could reach a verdict of not guilty of murder but guilty of manslaughter. Each of them required an affirmative finding that the Crown had proved beyond reasonable doubt that it was the accused (as he then was) who inflicted the fatal stab wound on the deceased. The first possible pathway was if they found that the Crown had failed to prove that at the time of the stabbing the accused had the requisite intention for murder, but it was nevertheless an unlawful and dangerous act; the second was if they found that the accused genuinely believed that it was necessary to do what he did in defence of himself or Greg Austin, but that his actions were excessive in the circumstances; and the third was if they found that he had the requisite intention for murder, but were satisfied that he was so substantially mentally impaired at the time as to reduce his liability from murder to manslaughter. It is impossible in the circumstances to know which of those scenarios was accepted by the jury. Indeed, all three of them could have been accepted by different jurors. They were told that it mattered not if they reached their verdict by different pathways, so long as the ultimate verdict was unanimous. In most respects, it makes little difference which pathway or pathways they took. The mere fact that the offender was convicted of the lesser charge of manslaughter significantly changes the whole sentencing process. In any event, given the offender’s underlying mental deficits, which I shall be describing shortly, as well as the fact that he was probably still affected by drugs at the time of the offence, any one of those pathways to manslaughter could well have applied in his case.

15. At this point I turn to say something about the offender’s background.

The offender’s background

16. The offender was born on 30 September 1991, and was thus nearly 22 at the time of this offence. He is now 25 years old.

17. The offender had a particularly difficult early childhood. On all accounts his father was a very difficult man who was physically abusive to both the offender and his mother. His parents separated when he was very young, and he has had no further contact with him. His mother re-married, and he has a good relationship with his step-father. Nevertheless, it seems that he has been permanently scarred by those early experiences. From an early age he displayed extremely disruptive behaviour. He was prone to self-harm, and used to head-butt against walls. His schooling was frequently interrupted, and he left secondary school at year 7. At the age of about 13 he started drinking alcohol and taking drugs, including cannabis, Xanax, benzodiazepines and methadone. Indeed, as already indicated, it was his desire to obtain methadone which led him to attach himself to the Austins on the day of the killing.

18. The offender has been diagnosed as suffering from Attention Deficit Hyperactivity Disorder (“ADHD”) as well as neurocognitive impairment. It was these two underlying conditions which gave rise to the partial defence of substantial impairment at his trial.

19. In 2010 the offender had a seizure after inhaling butane gas, leading to an urgent hospital admission. On all accounts he was fortunate to survive, and as I understand it, he has been left with permanent renal impairment.

20. The offender was assessed by Wayne Reid, a clinical neuropsychologist, who interviewed him in June 2015. Mr Reid found that there had been a significant decline in the offender’s intellectual functioning, and that he was in the borderline range, and at the 5th percentile for persons of his age. The offender has also been assessed by various psychiatrists for the purpose of these proceedings, and the opinion of virtually all of them is that he suffers from significant levels of depression and anxiety. These are likely to have been caused by the trauma he suffered when he was very young. He has long suffered from substance abuse disorder. Indeed, it is the general opinion that his drug taking has been the major cause of his offending over the years.

21. The offender’s criminal history shows that he committed his first offences in November 2008, when he was only 17 years old. They were offences of damaging property and stealing from a dwelling, for which he was later placed on a 12 month bond, on condition that he attend Wisteria House for treatment for drug issues. In December 2009 he committed the offences of travelling without a valid ticket, resisting an officer in the execution of his duty, and assaulting a police officer. He was fined and placed on a two year good behaviour bond. In March 2011 he committed the further offences of possessing a prescribed substance and not paying a train fare. Again he was placed on a bond, this time for 18 months, with conditions relating to drug and alcohol rehabilitation. Finally, in December 2012 he committed the offences of larceny, possessing implements to enter or drive a conveyance, and bringing a small quantity of drugs into a detention centre. In relation to these offences, in February 2013 the offender was given a suspended sentence of six months, as well as a relatively small fine. These bonds had expired when he committed the present offence.

22. It follows that, although the offender has committed a number of offences in the past, he had never previously been sentenced to imprisonment. One must therefore infer that those offences were not of the most serious order of their kind.

23. The offender’s custodial history shows that, since his incarceration for this offence, he has committed a number of breaches of prison discipline, mainly relating to drugs. The most recent of these was in November 2016, when he failed a prescribed drug test.

24. Some years before this, the offender commenced a relationship with a young woman, Nicole, as a result of which he has two young children. The offender and Nicole had separated before the commission of this offence, and the offender had returned to live with his mother in Bidwill. The offender’s mother still cares for his children for about four days each week. His mother wrote a letter to the Court expressing strong support for the offender, and stating the belief that, if it were not for the drugs the offender had been taking, none of this would have happened.

25. In all the circumstances, I consider that Mrs Jenkins’ assessment in this regard is an accurate one. Certainly the offender has the underlying conditions of ADHD and neurocognitive impairment. He also suffers from anxiety and depression. However, in my opinion it is his drug taking which has been the primary cause of his offending over the years.

26. At this point I turn to discuss the aggravating and mitigating factors which are required to be taken into account on sentence pursuant to s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW) “the Act”.

Aggravating and mitigating factors

27. The relevant aggravating factors set out in s 21A(2) which are not inherent in the crime of manslaughter are: first, that the offence involved the use of a weapon, pursuant to par (c). However, this is a frequent product of this offence, and I therefore attach little significance to it. Next, the offender has a record of previous convictions, pursuant to par (d). I have already mentioned those convictions. They are for relatively minor offences, as indicated by the fact that the offender had never been in gaol before.

28. The next possible aggravating factor is that the offence was committed in the presence of a child under 18 years, pursuant to par (ea). There were two very young children with Jessica Norton and Sarah Wilson, who obviously observed all of this. The significance of this factor is heavily disputed by Mr Scragg on behalf of the offender, as it is clear from the evidence that the offender was unaware of the presence of children in the vicinity of the killing. The Crown urges that it is the objective fact of the presence of children at the scene, with the resultant likely deleterious effect upon them, which is to be considered. The defence submits that, as an aggravating factor such as this is relevant to the offender’s culpability, a matter of which he had no knowledge should not be used against him. There is real substance in both these arguments. In the circumstances I propose to take this factor into account as a matter which is relevant to the offender’s objective culpability for this offence. However given that he was unaware of it, I will attach very little significance to it.

29. The following are the relevant mitigating factors under s 21A(3): first that the offence was not part of a planned or organised criminal activity, pursuant to par (b). The stabbing of Cheyne Duncan was an entirely spontaneous action on the offender’s part. Also, pursuant to par (k), the offender offered to plead guilty to manslaughter. The Crown prosecutor has disputed the applicability of this factor in the present case, and it is thus necessary to say a little more about the history of this matter.

30. There is no doubt that, on 22 January 2015, when the matter was before the Local Court, the offender’s solicitor wrote to the Director of Public Prosecutions offering to plead guilty to manslaughter on the basis of excessive defence of himself and/or others. That offer was obviously not accepted by the DPP, and the matter proceeded through the court system, and ultimately to trial. As the Crown prosecutor pointed out at the sentencing proceedings, no plea of guilty to manslaughter was entered by the offender on his arraignment. In addition, the issue of substantial impairment was not raised until shortly before the first hearing date, which led to the trial being adjourned at that time.

27. Mr Scragg has referred me to a number of authorities on this issue. I do not propose to mention most of them. However, the judgment of the Court of Criminal Appeal in R v Oinonen [1999] NSWCCA 310 is particularly relevant to the present circumstances. In that case the appellant had been charged with murder. His lawyers had offered to plead guilty to manslaughter, an offer which was rejected by the Crown. When the matter went to trial the appellant pleaded not guilty to murder, thereby putting the Crown to proof of its entire case against him. He was in due course found not guilty of murder but guilty of manslaughter, and a term of imprisonment was imposed. The appellant appealed against his sentence. One of the grounds of appeal was that the sentencing judge had declined to take the appellant’s offer into account because it was not repeated when he was later arraigned for murder. The Court of Criminal Appeal allowed the appeal and reduced the appellant’s sentence accordingly. Grove J (with whom Spigelman CJ and Sully J agreed) referred to the long practice of the courts to take into account an offer to plead guilty of an offence which matches the crime for which the person is ultimately convicted. This is on two bases: first, it is taken as an indication of remorse and contrition, and secondly there is a utilitarian value in a plea of guilty, in that it reduces the time and expense in taking the matter to trial. Of course if the offer is not accepted, as occurred in both Oinonen and the present case, there is in fact no utilitarian value. However, the offender cannot be held responsible for that matter, even if the plea is not repeated at arraignment.

28. On my finding it is therefore appropriate to take the offender’s offer into account as a mitigating factor on sentence. I propose to reduce the sentence I would otherwise have imposed by approximately 10% on this account.

Other relevant considerations

33. The offender wrote a letter to the Court expressing deep remorse for his actions on this occasion. In addition, Mr Scragg tendered a number of letters indicating support of the offender, including letters from his mother and his stepfather.

34. A considerable portion of the offender’s imprisonment to date has been spent in protective custody. This is apparently because the deceased, Mr Duncan, was well known to and apparently liked by some other inmates, as a result of which the offender reported that he had been assaulted and threatened on a number of occasions. This is a relevant matter on sentence, as it means that his incarceration may well be more onerous than would otherwise have been the case.

35. The principal purposes of sentencing are: the rehabilitation of the offender, the deterrence of the offender and others from committing similar offences, and the denouncement of the conduct of the offender. In the present case, I consider that the rehabilitation of the offender should be the central consideration, particularly as his mental disabilities mean that deterrence is of less significance in his case. As already indicated, his rehabilitation is largely dependent upon his being able to abstain from illegal drugs. It is to be hoped that the lessons he has learnt from these events and his subsequent incarceration will lead to his abandoning his drug use. However given his custodial record, it is not possible to be too confident about this matter. He has been assessed as having a medium chance of rehabilitation, which I consider to be substantially accurate.

36. A number of extremely moving victim impact statements were read in Court by or on behalf of people who had been close to the deceased, Cheyne Duncan. They included his mother, his brother, his two children Madisyn and Bailey, and Jessica Norton. On behalf of the Court, I express my sincere condolences to each of them. I hope that they appreciate that the sentence I am about to impose cannot take into account the extent of their loss. Indeed, no sentence this Court could impose could ever do so. I take those statements into account in the manner provided by the legislature.

37. It has been submitted by Mr Scragg that special circumstances exist which justify a departure from the statutory ratio between the non-parole period and the balance of sentence. I agree that the offender’s continual need for supervision and assistance in relation to his drug taking constitutes special circumstances, but the ratio suggested by Mr Scragg, namely a 50/50 one, is excessive in my view.

38. The maximum sentence for manslaughter is 25 years. There is no standard non-parole period. As has often been said, manslaughter covers a wider range of culpability than any other offence in the criminal calendar.

39. In the present case, were it not for the offender’s offer to plead guilty to manslaughter, I would have sentenced him to imprisonment for 10 years, with a non-parole period of a little over 6 years. Applying the reduction of approximately 10% I impose the following sentence.

Sentence

40. Brandon Jenkins for the manslaughter of Cheyne Duncan, I sentence you to imprisonment consisting of a non-parole period of five years and six months, commencing on 19 September 2013 and expiring on 18 March 2019, with a balance of term of three years and six months, commencing on 19 March 2019 and expiring on 18 September 2022, making a total sentence of nine years. The earliest date on which you will be eligible for release on parole will be 18 March 2019.

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Amendments

18 May 2017 - Jeffreys Lawyers in lieu of Legal Aid

Decision last updated: 18 May 2017