Citation: Regina v Kevin John Jones [2001] NSWSC 1170
Court: Supreme Court of New South Wales
Date: 30 November 2001
Judge(s): Bell J
Background
The prisoner was tried before Bell J on a charge of murdering Michael William Jones at Wagga Wagga on 29 April 2000. After a trial of nearly three weeks, the jury returned a verdict of not guilty on 29 November 2001.
Following the acquittal, the Crown invited the court to deal with a separate assault charge as a related offence under Part 2, Division 4 of the Criminal Procedure Act 1986. The assault arose from the same circumstances as the murder charge: an attack on the deceased earlier on the morning of 29 April 2000.
The prisoner pleaded guilty to the assault charge. The sentencing hearing proceeded on the following day, 30 November 2001.
Legal Issues
- Whether the assault charge qualified as a "related offence" for the purposes of Part 2, Division 4 of the Criminal Procedure Act 1986
- What the applicable maximum penalty was, given the offence had not been committed to indictment and was being dealt with by the Supreme Court in its related offence jurisdiction
- What sentence was appropriate, having regard to the objective seriousness of the assault and the prisoner's personal circumstances
Decision
Bell J was satisfied that the assault charge was a related offence, arising as it did from substantially the same circumstances as the murder indictment. The assault occurred at approximately 11:15 am on 29 April 2000, when the prisoner stomped on and sat upon the deceased, who was already on the ground bleeding heavily, in response to a belief that the deceased had stolen a cask of wine.
The court accepted the Crown's concession that, because the assault was a Table Two offence under the Criminal Procedure Act 1986 and had not been elected to proceed on indictment, the applicable maximum penalty was 12 months imprisonment rather than the 2-year maximum applicable on indictment.
Bell J characterised the assault as objectively very grave. The prisoner had stomped on the victim three or four times and then sat on him with his knees pressing into the victim's bleeding face while attempting to expose that face to further violence. Those facts, combined with the prisoner's lengthy criminal history including a prior conviction for inflicting grievous bodily harm, warranted the maximum available sentence of 12 months.
The court took into account that the prisoner had been in continuous custody since 29 April 2000, and that a separate six-month sentence had been imposed by the Wagga Wagga Local Court in November 2000. The court therefore deemed the 12-month sentence to have commenced on 29 April 2000 and to have expired on 28 April 2001, reflecting the time already served referable to this offence.
Orders Made
- The prisoner was convicted of assault on his guilty plea
- Sentenced to 12 months imprisonment, deemed to have commenced on 29 April 2000 and to have expired on 28 April 2001
Key Takeaways
- A "related offence" under Part 2, Division 4 of the Criminal Procedure Act 1986 is one arising from substantially the same circumstances as the primary indictable offence, and can be dealt with by the Supreme Court even following an acquittal on the principal charge
- Where a Table Two offence has not been elected to proceed on indictment, the applicable maximum penalty when dealt with as a related offence is the summary maximum of 12 months imprisonment, not the higher indictable maximum
- The Supreme Court treated the assault here as objectively very grave, warranting the maximum available penalty, given the nature of the physical attack on a vulnerable, already-injured victim
- Prior convictions for violence, including a Brisbane District Court conviction for inflicting grievous bodily harm, were relevant to the sentencing exercise
- The sentence was backdated to the date of the prisoner's initial arrest to account for the period of custody already served referable to the offence
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61 (assault)
- Criminal Procedure Act 1986 (NSW), Part 2, Division 4 (related offences); s 36(1)(b); s 37(2)