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Supreme Court 2 October 2003

R v Mehajer & Jacobs

[2003] NSWSC 885

Assault & violenceHomicideTheft & property

Citation: R v Mehajer & Jacobs [2003] NSWSC 885
Court: Supreme Court of New South Wales, Common Law Division (Criminal List)
Date: 2 October 2003
Judge(s): Studdert J

Background

The two prisoners, Mazin Mehajer and John Lou Jacobs, were tried together and convicted by jury on all three counts of an indictment arising from events on 3 March 2000 at a small café at Leumeah, near Campbelltown. They were found guilty of murdering Shane Andrew Cole, the café owner, and of two separate robbery offences committed in company with a third man, Christian Painter. One robbery involved the deceased and caused grievous bodily harm; the other involved Shane Phillips and involved wounding.

The circumstances were brutal. Phillips and the deceased were restocking the café after hours when intruders entered. Phillips was seized, held at knifepoint, ordered to the floor, and told his friend's throat would be cut. The deceased was fatally injured in the course of the robbery and later died from those injuries. Both prisoners maintained their not guilty pleas, and the precise roles each played remained in contest at the sentencing hearing.

At sentencing, Studdert J was required to make independent findings of fact for the purpose of determining the appropriate sentences, notwithstanding the jury's verdicts. The disputed issues included whether Mehajer had been armed with a knife and the degree of each prisoner's individual participation in the offences.

  • Whether Mehajer was armed with and used a knife during the robbery and murder, given conflicting witness accounts
  • What factual findings could be made about each prisoner's individual role in the offences for sentencing purposes
  • How the sentences for the three counts should be structured, including the extent to which they should be cumulative or concurrent
  • What non-parole periods were appropriate, applying the relevant provisions of the Criminal (Sentencing Procedure) Act
  • Whether any subjective factors (such as background, mental health, or prospects of rehabilitation) warranted adjustment to the sentences

Decision

On the knife issue, Studdert J considered the competing accounts carefully. Shane Phillips, the eyewitness who had been held at knifepoint, gave evidence that a knife was used. His credibility was challenged on grounds including cannabis use earlier that day and inconsistencies in things he said to friends and ambulance officers after the event. The judge assessed those challenges and ultimately made factual findings as to the use of a knife and the roles each prisoner played in the offences, though the trimmed text does not reproduce the full reasoning on each contested point.

In structuring the sentences, the judge applied the principle that separate sentences for distinct criminal acts should reflect the totality of the criminality involved, drawing on authorities including Pearce v The Queen and R v Dodd. Murder carried the most significant penalty for each prisoner. The robbery sentences were ordered to be served partly cumulatively and partly concurrently with the murder sentence, producing a structured overall sentence for each offender.

Subjective circumstances for each prisoner were also addressed before final orders were made. Mehajer received a longer sentence for murder than Jacobs, reflecting the judge's findings about their respective roles and culpability. The difference in sentence length (eighteen years for Mehajer, sixteen years six months for Jacobs) indicates the court distinguished between the two prisoners' degrees of involvement.

Orders Made

Mehajer:
- Count 3 (robbery in company with wounding of Phillips): fixed term of four years, commencing 30 January 2003, expiring 29 January 2007. No non-parole period set.
- Count 1 (murder): eighteen years imprisonment, commencing 30 July 2003, expiring 29 July 2021. Non-parole period of thirteen years six months. Earliest parole eligibility: 29 January 2017.
- Count 2 (robbery in company causing grievous bodily harm): five years, concurrent with murder sentence, commencing 30 July 2003. No non-parole period set.

Jacobs:
- Count 3 (robbery in company with wounding of Phillips): fixed term of four years, commencing 15 October 2001, expiring 14 October 2005. No non-parole period set.
- Count 1 (murder): sixteen years six months imprisonment, commencing 15 April 2002, expiring 14 October 2018. Non-parole period of twelve years six months, expiring 14 October 2014. Earliest parole eligibility: 14 October 2014.
- Count 2 (robbery in company causing grievous bodily harm): five years, concurrent with murder sentence, commencing 15 April 2002. No non-parole period set.

Key Takeaways

  • Where co-offenders are convicted of the same offences, sentencing courts are required to make individual findings of fact about each offender's role and culpability, regardless of joint jury verdicts, and to calibrate sentences accordingly.
  • The totality principle requires that cumulative sentences not produce an aggregate term disproportionate to the overall criminality, a consideration Studdert J applied in structuring the concurrent and cumulative components of each sentence.
  • Conflicting eyewitness accounts at the sentencing stage, including inconsistencies arising from a witness's prior drug use and varying statements made in the immediate aftermath of a traumatic event, do not automatically defeat the evidence but require careful judicial assessment.
  • Where a prisoner is serving multiple sentences of differing lengths, the Supreme Court may decline to set separate non-parole periods on lesser counts where the dominant sentence for murder already governs the parole eligibility date.
  • Pre-sentence custody is reflected in backdated commencement dates, as demonstrated by the sentences for both Mehajer and Jacobs commencing well before the date of the sentencing judgment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 98 (robbery with wounding)
- Criminal (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 28, 44

Cases:
- 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, 3 April 1995)
- R v O'Hare [2003] NSWSC 652
- R v Phelan (1993) 66 A Crim R 446
- R v Previtera (1997) 94 A Crim R 76