REGINA v JENKINS [1999] NSWCCA 110

New South Wales Court of Criminal Appeal CITATION : REGINA v JENKINS [1999] NSWCCA 110 FILE NUMBER(S) : CCA 60511/98 HEARING DATE(S) : 18/03/99-19/03/99 JUDGMENT DATE : 12 May 1999

PARTIES : John David JENKINS JUDGMENT OF : Spigelman CJ at 1; Wood CJ at CL at 8; Newman J at 9; Hulme J at 10; Simpson J at 11

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/61/0001 LOWER COURT JUDICIAL OFFICER : Cantrill ADCJ

COUNSEL : T L Buddin SC (Jenkins) P G Berman (Crown) SOLICITORS : T A Murphy (Jenkins) R Gray (Crown) CATCHWORDS : CRIMINAL LAW; sentencing; assault with intent to rob whilst armed, s97(1) Crimes Act 1900; appropriate sentence; direction of release on parole at certain date DECISION : Leave to appeal granted; Appeal allowed; sentence quashed; Substitution of sentence of penal servitude of twenty-four months

- 19 - IN THE COURT OF CRIMINAL APPEAL

60511/98

SPIGELMAN CJ WOOD CJ at CL NEWMAN J HULME J SIMPSON J

Wednesday 12 May 1999

REGINA v John David JENKINS

JUDGMENT

1 SPIGELMAN CJ: In this matter I have had the advantage of reading the judgment of Simpson J in draft. I gratefully adopt her Honour's statement of the relevant facts and issues in the appeal. Her Honour found that the trial Judge committed three relevant errors: (1) His Honour erred in identifying the maximum sentence for the offence. (2) His Honour proceeded on a wrong basis in relation to the Applicant's change of clothing. (3) The sentence was manifestly excessive. 2 I agree with the reasoning of Simpson J with respect to the first and second matters. I am not however persuaded that the sentence was manifestly excessive in the sense that, if there were no other error in his Honour's reasons on sentence, this Court would be entitled to intervene. Nevertheless, by reason of the first and second matters, with respect to which the trial Judge erred, the discretion of this Court is enlivened. 3 For the reasons given by Simpson J the appropriate approach in the present case is to determine a fixed term. The objective gravity of the offence is such, however, that I am not able to agree with her Honour as to the fixed term she proposes. 4 I take into account the circumstances of the crime, the age of the Appellant and the nature of his life. Nevertheless, the objective criminality of the offence is high. He produced a knife which his Honour found to be a "boning knife" and which his Honour described in the following way: "When she looked up she saw he was holding a knife to her ribcage and that knife is before me. It is, I must say, a nasty looking weapon. She complied with the demand of the accused at a fear for her own safety and went to the till." 5 The nature of the weapon is of considerable significance in terms of the objective gravity of the offence. In his record of interview with the Police he said that he used this knife for the purposes of fishing. Counsel for the Appellant described it as a "fishing knife". This was an oversimplification. 6 The Appellant indicated that he had obtained the knife from a friend of his who worked in an abattoir. A knife of that character would answer the description which his Honour gave: "a nasty looking weapon". 7 In view of these considerations in my opinion the appropriate sentence is a fixed term of two years. **********