Citation: R v Jenkin (No 19) (Sentence) [2019] NSWSC 609
Court: Supreme Court of New South Wales
Date: 23 May 2019
Judge(s): Hamill J
Background
The offender was charged with the murder of Mark Dower and conspiracy to murder a witness known as RS. Following an eight-week judge-alone trial, he was acquitted of murder but convicted of manslaughter and conspiracy to murder (reported in the verdict judgment, R v Jenkin (No 18) [2018] NSWSC 978).
The victim, Mark Dower, was a homeless alcoholic who had more money than many in his social circle due to dual Australian and Finnish pensions. In late March 2015, the offender and an associate brought Mr Dower to the offender's apartment against his will. The purpose was to have Mr Dower sober up and appear at court to support the offender's claim to money that police had confiscated. Mr Dower was held there for several days and subjected to a series of assaults before dying on 27 or 28 March 2015.
While in custody on remand, the offender instructed his stepbrother to murder RS, who had seen Mr Dower's body in the apartment and later became a prosecution witness. The plan involved administering a fatal heroin overdose. Police intercepted the communications, arrested the conspirators, and placed RS under protection before any serious harm occurred.
Legal Issues
- What is the appropriate sentence for manslaughter, where death resulted from a series of unlawful and dangerous assaults during an unlawful detention, without any intention to kill or cause grievous bodily harm?
- What is the appropriate sentence for conspiracy to murder, where the motive was to silence a potential witness to a homicide, and where the plan was not fully executed?
- How should the sentences for the two offences be accumulated, having regard to the totality principle?
- Whether special circumstances existed justifying an adjustment to the standard non-parole period ratio.
Decision
Hamill J found that the manslaughter was a serious example of the offence. The offender had detained Mr Dower for a financial purpose, held him in a position of dominance over several days, and subjected him to multiple assaults driven by frustration and temper, including on occasions when his bank card could not be used and when the victim lost control of his bodily functions. The court accepted that the offender did not intend to kill or seriously harm Mr Dower, but found that his violent temper and repeated unlawful acts substantially contributed to the death. The treatment of Mr Dower's body after death, and the conspiracy to kill a witness, were treated as evidence of consciousness of guilt.
On the conspiracy to murder, the court noted that the motivation was to obstruct or undermine a homicide investigation by eliminating a witness. Intercepted telephone calls plainly showed the offender directing his stepbrother to kill RS with a heroin overdose. Although the stepbrother's efforts were described by the court as "maladroit" and RS was never seriously imperilled, the court emphasised that this did not diminish the gravity of the criminal conduct itself. The court compared the case to R v Baker [2017] NSWCCA 233 and R v Lindstrom [2008] NSWSC 198, both of which involved similar motivations and in which the Court of Criminal Appeal indicated a starting point of no less than 12 years.
The court expressly addressed the victim impact material. Mr Dower's daughter described her father as "her hero" and "the kindest man on this planet." The court extended its sympathy to her and to others affected by the killing. Hamill J also took the opportunity to affirm that all human life is equal and sacred, and that the absence of any aggravation based on family impact reflected the principle that almost every homicide devastates those around the victim.
On totality, the court structured the sentences with significant concurrency, resulting in a total effective sentence of 19 years, with a total non-parole period of 14 years. Special circumstances were found to exist, justifying an extension of the balance of term beyond the standard ratio, given the need for an extended period of supervised release.
Orders Made
- For manslaughter of Mark Dower: imprisonment for 12 years with a non-parole period of 9 years, commencing 1 February 2016, non-parole period expiring 31 January 2025, total sentence expiring 31 January 2028.
- For conspiracy to murder: imprisonment for 13 years with a non-parole period of 8 years, commencing 1 February 2022, non-parole period expiring 31 January 2030, total sentence expiring 31 January 2035.
- Total effective sentence: 19 years, with a total non-parole period of 14 years; first eligible for parole on 31 January 2030.
- The court directed the offender's lawyers to advise him of the possible application of the Crimes (High Risk Offenders) Act 2006 (NSW).
Key Takeaways
- Manslaughter arising from a series of repeated assaults during an unlawful detention, even where no intention to kill existed, can attract a sentence of 12 years where there are significant aggravating features, including financial motivation for the detention, the victim's vulnerability, and post-death conduct indicating consciousness of guilt.
- Conspiracy to murder where the purpose is to silence a witness to a homicide investigation is treated as a very serious form of the offence. Prior Court of Criminal Appeal authority in Baker and Lindstrom set a starting point of no less than 12 years for comparable cases, and Hamill J applied a 13-year sentence here.
- The court reaffirmed the principle, consistent with R v Hines (No 3) [2014] NSWSC 1273, that victim impact material does not aggravate a homicide sentence on the basis that some victims have more loving families than others. All human life is equal, and the devastating impact on loved ones is a near-universal feature of homicide.
- Where an offender faces accumulated sentences for related but distinct serious offences, the totality principle requires that the combined sentence reflect the overall criminality without becoming crushing, achieved here through substantial concurrency between the two sentences.
- Under the Crimes (High Risk Offenders) Act 2006 (NSW), the court is required to notify an offender that the legislation may apply at the conclusion of the sentence, as it did here.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 24 and 26
- Crimes (High Risk Offenders) Act 2006 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2), 28 and 44
Cases
- R v Jenkin (No 18) (Verdict) [2018] NSWSC 978
- R v Baker [2017] NSWCCA 233
- R v Lindstrom [2008] NSWSC 198
- R v Hines (No 3) [2014] NSWSC 1273
- R v Paul William Turner [2018] NSWSC 1929