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Supreme Court 4 October 2013

R v Jacobs (No 9)

[2013] NSWSC 1470

HomicideFirearms & weaponsPublic order & justice offences
CRIMINAL LAW MURDER OF POLICE OFFICER WHETHER S 19B OF CRIMES ACT APPLIES WHETHER OFFENDER HAD INTENTION TO KILL NO SUBSTANTIAL COGNITIVE IMPAIRMENT STANDARD OF PROOF FOR STATUTORY FACTORS

Citation: R v Jacobs (No 9) [2013] NSWSC 1470
Court: Supreme Court of New South Wales
Date: 4 October 2013
Judge: Button J

Background

The offender was convicted by a jury of the murder of Senior Constable David Rixon, a uniformed highway patrol officer, in West Tamworth on 2 March 2012. The deceased had followed the offender's vehicle through backstreets after suspecting the offender was driving whilst disqualified. When the deceased approached the offender on foot and informed him of a breath test, the offender produced a loaded .38 calibre revolver and fired a single shot. The projectile passed through the deceased's wrist and into his chest, causing rapidly fatal injuries to his heart and lungs.

The offender was himself shot multiple times by the deceased before the deceased died. He had been in a heightened emotional state that morning following an argument with his partner, had injected methylamphetamine the previous evening, and was driving while disqualified. Button J found there was no plan to shoot any police officer when the offender left home that morning.

Sentencing proceedings turned on whether the mandatory life imprisonment provision in s 19B of the Crimes Act 1900 applied, or whether the court retained sentencing discretion.

  • Whether s 19B of the Crimes Act 1900 applied so as to require a mandatory sentence of life imprisonment for the murder of a police officer
  • Whether the offender had an intention to kill the deceased at the time of the shooting
  • Whether the offender was engaged in criminal activity that risked serious harm to police officers, as an alternative basis for s 19B
  • What standard of proof applied to the statutory factors under s 19B
  • Whether the offender's cognitive functioning, drug use, or other personal circumstances affected the analysis

Decision

Button J applied the standard sentencing fact-finding framework, holding that facts adverse to the offender must be proven beyond reasonable doubt, while facts in the offender's favour need only be established on the balance of probabilities, consistent with R v Isaacs (1997) 41 NSWLR 374.

On the question of intention to kill, Button J was satisfied beyond reasonable doubt that the offender intended to kill the deceased at the moment he fired. His Honour acknowledged the intention may have been fleeting and irrational, but found it sufficient to satisfy that statutory element. The court also found no substantial cognitive impairment that would displace that conclusion, notwithstanding the offender's drug use and personal circumstances at the time.

Separately, and in the alternative, Button J was satisfied beyond reasonable doubt that the offender was engaged in criminal activity risking serious harm to police officers, both by the act of firing the loaded weapon and, on a further alternative reading of the provision, by the antecedent conduct of producing and pointing a loaded firearm in a public place towards a nearby police officer.

Because all three pathways to s 19B were established to the criminal standard, the mandatory sentence of imprisonment for life was required. Button J noted that this conclusion made it unnecessary to consider s 61 of the Crimes (Sentencing Procedure) Act 1999 or any sentencing guideposts. His Honour also observed that those who had trafficked the handgun into the offender's possession bore substantial responsibility for the fatal outcome.

Orders Made

  • The offender was convicted of murder and sentenced to imprisonment for life.

Key Takeaways

  • Under s 19B of the Crimes Act 1900, a mandatory life sentence is required for the murder of a police officer where specified circumstances are established, including an intention to kill or engagement in criminal activity risking serious harm to police officers.
  • The Supreme Court confirmed that each statutory factor engaging the mandatory life sentence must be proven by the prosecution beyond reasonable doubt, consistent with ordinary sentencing fact-finding principles.
  • An intention to kill sufficient to engage s 19B need not be premeditated or sustained; a fleeting but genuine intention formed at the moment of the fatal act was held to satisfy the requirement.
  • The court identified multiple independent bases for applying s 19B: the act of firing itself, and the prior conduct of producing and pointing a loaded firearm at a police officer at close range in a public place.
  • Where s 19B is engaged and the mandatory sentence is imposed, there is no residual need to consider s 61 of the Crimes (Sentencing Procedure) Act 1999 or other sentencing guideposts directed at the worst category of cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 19A, 19B
- Crimes (Sentencing Procedure) Act 1999 (NSW), Division 1A; s 61

Cases:
- Ngo v R [2013] NSWCCA 142
- R v Isaacs (1997) 41 NSWLR 374; (1997) 90 A Crim R 587
- R v O'Neill (1979) 2 NSWLR 582; 1 A Crim R 59
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270