R v Mehajer and Jacobs - [2003] NSWSC 885

CITATION: R v Mehajer & Jacobs [2003] NSWSC 885 revised - 03/10/2003

HEARING DATE(S): 22 April - 21 May, 8 August 2003

JUDGMENT DATE:
2 October 2003

JURISDICTION:
Common Law Division
Criminal List

JUDGMENT OF: Studdert J

DECISION: MEHAJER: For the offence of robbery in company with wounding of Shane Henry Lee Phillips charged in the third count, sentenced to a fixed term of imprisonment of four years, commencing 30 January 2003 and expiring 29 January 2007. No non parole period set having regard to the sentence to be imposed under the first count. For the crime of murder charged in the first count, sentenced to a term of imprisonment of eighteen years to be served in part cumulatively upon and otherwise concurrently with the sentence imposed on the third count. The sentence for the crime of murder is to commence on 30 July 2003 and is to expire on 29 July 2021. Non parole period of thirteen years six months. The first date upon which the prisoner is to be eligible for release on parole is 29 January 2017. For the offence of robbery in company causing grievous bodily harm charged in the second count, sentenced to a fixed term of imprisonment of five years to be served concurrently with the sentence imposed for murder and to commence on 30 July 2003. No non parole period set because of the sentence imposed for the crime of murder. JACOBS: For the crime of robbery in company and wounding of Shane Henry Lee Phillips charged in the third count, a fixed term of imprisonment of four years commencing 15 October 2001 and expiring 14 October 2005. No non parole period because of the sentence to be imposed for the crime of murder. For the crime of murder charged in the first count, a sentence of imprisonment of sixteen years six months to be served in part cumulatively upon the sentence imposed on the third count and the sentence for murder is backdated to commence on 15 April 2002 and to expire on 14 October 2018. Set a non parole period of twelve years six months to expire on 14 October 2014. For the crime of robbery in company causing grievous bodily harm charged in the second count, sentenced to a term of imprisonment of five years to be served concurrently with the sentence imposed for murder and backdated to commence on 15 April 2002. No non parole period set because of the sentence imposed for the crime of murder. The first date upon which the prisoner is to be eligible for release on parole is 14 October 2014.

LEGISLATION CITED: Crimes Act, s 98
Criminal (Sentencing Procedure) Act, ss 3A, 21A, 28, 44

CASES CITED: Pearce v The Queen (1998) 194 CLR 610
R v Bollen (1998) 99 A Crim R 510
R v Boney (unreported) NSWCCA, 22 July 1991
R v Dodd (1991) 57 A Crim R 349
R v Hutchins (1958) 75 WN 75
R v Mills (unreported) NSWCCA,…

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: [2003] NSWSC 885
Decision Date: 2 October 2003

CaseChat Overview and Summary

In the Supreme Court of New South Wales, Mazin Mehajer and John Lou Jacobs were convicted of the murder of Shane Andrew Cole, robbery in company with grievous bodily harm, and robbery in company with wounding. Both prisoners pleaded not guilty to the charges, which were tried together. The jury returned guilty verdicts on all counts on 21 May 2003. The court found Mehajer to be the ringleader, armed with a knife, and threatening the victims to surrender their valuables. Jacobs, while not armed, was also found to be aware of Mehajer's knife and complicit in the crime. The court sentenced Mehajer to 18 years for murder, with a non-parole period of 13 years and 6 months, and 5 years for the grievous bodily harm charge, to be served concurrently. Jacobs was sentenced to 16 years and 6 months for murder, with a non-parole period of 12 years and 6 months, and 5 years for the grievous bodily harm charge, to be served concurrently. Both defendants were also sentenced to 4 years for the wounding charge, to be served partially cumulatively and partially concurrently with the other sentences.

Orders