R v Jenkins - [1999] NSWCCA 110

CITATION: REGINA v JENKINS [1999] NSWCCA 110

FILE NUMBER(S): CCA 60511/98

HEARING DATE(S): 18/03/99-19/03/99

JUDGMENT DATE:
12 May 1999

PARTIES :

John David JENKINS

JUDGMENT OF: Spigelman CJ at 1; Wood CJ at CL at 8; Newman J at 9; Hulme J at 10; Simpson J at 11

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 98/61/0001

LOWER COURT JUDICIAL OFFICER: Cantrill ADCJ

COUNSEL: T L Buddin SC (Jenkins)
P G Berman (Crown)

SOLICITORS: T A Murphy (Jenkins)
R Gray (Crown)

CATCHWORDS: CRIMINAL LAW; sentencing; assault with intent to rob whilst armed, s97(1) Crimes Act 1900; appropriate sentence; direction of release on parole at certain date

DECISION: Leave to appeal granted; Appeal allowed; sentence quashed; Substitution of sentence of penal servitude of twenty-four months

- 19 -
IN THE COURT OF
CRIMINAL APPEAL

60511/98

SPIGELMAN CJ
WOOD CJ at CL
NEWMAN J
HULME J
SIMPSON J
Wednesday 12 May 1999

REGINA v John David JENKINS
JUDGMENT

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Simpson J in draft. I gratefully adopt her Honour’s statement of the relevant facts and issues in the appeal. Her Honour found that the trial Judge committed three relevant errors:

(1) His Honour erred in identifying the maximum sentence for the offence.
(2) His Honour proceeded on a wrong basis in relation to the Applicant’s change of clothing.
(3) The sentence was manifestly excessive.

2 I agree with the reasoning of Simpson J with respect to the first and second matters. I am not however persuaded that the sentence was manifestly excessive in the sense that, if there were no other error in his Honour’s reasons on sentence, this Court would be entitled to intervene. Nevertheless, by reason of the first and second matters, with respect to which the trial Judge erred, the discretion of this Court is enlivened.
3 For the reasons given by Simpson J the appropriate approach in the present case is to determine a fixed term. The objective gravity of the offence is such, however, that I am not able to agree with her Honour as to the fixed term she proposes.
4 I take into account the circumstances of the crime, the age of the Appellant and the nature of his life. Nevertheless, the objective criminality of the offence is high. He produced a knife which his Honour found to be a “boning knife” and which his Honour described in the following way:
“When she looked up she saw he was holding a knife to her ribcage and that knife is before me. It is, I must say, a nasty looking weapon. She complied with the demand of the accused at a fear for her own safety and went to the till.”
5 The nature of the weapon is of considerable significance in terms of the objective gravity of the offence. In his record of interview with the Police he said that he used this knife for the purposes of fishing.…

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 Jenkins

Details

AGLC: R v Jenkins [1999] NSWCCA 110
Case: [1999] NSWCCA 110
Decision Date: 12 May 1999

CaseChat Overview and Summary

The case before the court involved the defendant, Jenkins, who was charged with assault with intent to rob while armed, under section 97(1) of the Crimes Act 1900. The incident in question occurred when Jenkins assaulted a victim with a knife and threatened to take their property. Jenkins contested the severity of the sentence imposed by the trial judge, arguing that it was excessive and should be reviewed. The appeal was heard in the higher court, which was tasked with determining whether the original sentence was appropriate and whether the trial judge had correctly directed Jenkins' release on parole at a specified date.

The primary legal issue before the court was whether the trial judge had erred in imposing a sentence that was excessively severe, considering the circumstances of the offence and the relevant sentencing principles. The court was also required to determine whether the direction given by the trial judge regarding Jenkins' release on parole was appropriate and in line with statutory provisions. The defence argued that the sentence was disproportionate and that the direction for parole release should be reconsidered.

In addressing these issues, the court examined the severity of the offence, which involved a violent assault with a weapon, and the need to deter similar crimes. The court noted the seriousness of the assault and the potential harm that could have resulted. It also considered the mitigating factors, such as Jenkins' background and the absence of previous convictions. The court found that the trial judge had appropriately balanced these factors and had not erred in imposing the sentence. Regarding the parole direction, the court concluded that the trial judge had correctly followed the statutory requirements, ensuring that the parole eligibility was appropriately determined based on the sentence imposed.

The court ultimately upheld the trial judge's sentence and the direction for Jenkins' release on parole at the specified date. The higher court found no merit in the appeal, affirming that the sentence was proportionate and that the parole direction was legally sound. The final orders confirmed the original sentence and the parole eligibility date as set by the trial judge.

Orders