AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 22 November 2023

Jenkins v R

[2023] NSWCCA 290

Sexual offences

Citation: Jenkins v R [2023] NSWCCA 290
Court: Court of Criminal Appeal, New South Wales
Date: 22 November 2023
Judges: Payne JA, Fagan J, Sweeney J (Sweeney J delivering the principal judgment)

Background

The applicant pleaded guilty in February 2016 to nine counts of sexual offending against nine separate child complainants, spanning offences including indecent assault, acts of indecency, and aggravated sexual intercourse. Additional offences were placed on Form 1 documents to be taken into account at sentencing. The victims were young boys, several of them under the applicant's authority at the time of the offences.

In October 2016, the District Court sentenced the applicant to an aggregate term of 21 years imprisonment with a non-parole period of 14 years and 6 months. The sentencing judge applied a 10 percent discount to reflect the guilty pleas, which were entered relatively late in proceedings.

More than six years after sentencing, the applicant sought leave to appeal both his convictions and his sentence out of time. He appeared unrepresented, assisted in the hearing by a fellow prisoner acting as a support person.

  • Whether the applicant's guilty pleas were freely and voluntarily entered, or whether his former legal representatives improperly pressured him into pleading guilty to offences he did not commit.
  • Whether the sentencing judge made factual errors in the findings underpinning the sentence.
  • Whether the sentencing judge properly gave effect to a finding of special circumstances when structuring the sentence.
  • Whether the aggregate sentence of 21 years imprisonment was manifestly excessive.

Decision

Conviction appeal. The applicant alleged that his legal representatives forced him to plead guilty after he could no longer pay their fees to run a trial. The Court received affidavit evidence from both the applicant and his former counsel and solicitor. After cross-examination and assessment of all the material, Sweeney J (with Payne JA and Fagan J agreeing) found that the pleas were freely and voluntarily entered. The Court found no improper pressure and no real question as to the integrity of the pleas or the applicant's guilt. No miscarriage of justice was established.

Sentence appeal. The Court rejected each of the grounds directed at the sentence. Sweeney J was satisfied the sentencing judge had correctly given effect to the finding of special circumstances, and that no factual errors infected the sentencing decision. The judge had properly taken into account the applicant's evidence at the sentence hearing when addressing his subjective circumstances.

Manifest excess. Applying the principles drawn from established High Court authority, the Court held that an appellate court may intervene only where a sentence is so far outside the available range that an error of principle must be inferred, not merely because it differs from sentences in comparable cases. Comparison was made with a case involving 17 offences against 9 victims over 11 years, where the offender received a larger plea discount. The Court concluded the applicant had not established that the aggregate sentence was unreasonable or plainly unjust.

Fagan J observed separately that two sentencing purposes under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) were particularly relevant: denunciation of the offender's conduct, and recognition of lasting harm to the nine victims and the community.

Orders Made

  • Leave to appeal against conviction granted; appeal dismissed.
  • Leave to appeal against sentence granted; appeal dismissed.

Key Takeaways

  • Allegations that former legal representatives pressured a defendant into pleading guilty require evidence capable of demonstrating actual improper pressure. Assertions alone, contradicted by affidavit evidence from the lawyers concerned, will not establish a miscarriage of justice.
  • A guilty plea entered late in proceedings attracted only a 10 percent discount in this case, compared with the 25 percent discount available for an early plea, illustrating the practical sentencing consequences of plea timing.
  • In dismissing a manifest excess ground, the Court of Criminal Appeal reaffirmed that appellate intervention is reserved for sentences falling so far outside the available range that an error of principle must be inferred, even if the appellate court might have sentenced differently.
  • No error in a sentencing judge's factual findings will be established on appeal without clear demonstration of a specific mistake. Disagreement with the weight given to subjective matters does not suffice.
  • Under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), denunciation and recognition of harm to victims are identified as distinct sentencing purposes, and the Court confirmed their particular relevance in cases involving systematic offending against vulnerable children.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 61M(1), 61M(2), 61N(1), 66C(2), 66C(4)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A
- Criminal Appeal Act 1912 (NSW)

Cases
- Layt v R [2020] NSWCCA 231
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Van Ryn [2016] NSWCCA 1
- White v R [2022] NSWCCA 241
- House v The King (1936) 55 CLR 499
- Lowndes v The Queen (1999) 195 CLR 665
- Dinsdale v The Queen (2000) 202 CLR 321
- Wong v The Queen (2001) 207 CLR 584
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520