Regina v Jacobs [2001] NSWCCA 212

Reported Decision : 122 A Crim R 409

New South Wales Court of Criminal Appeal

CITATION : Regina v Jacobs [2001] NSWCCA 212 FILE NUMBER(S) : CCA 60248/99 HEARING DATE(S) : 11/05/01 JUDGMENT DATE : 28 May 2001

PARTIES : Regina v Rodney Warren Jacobs JUDGMENT OF : Carruthers AJ at 1; Badgery-Parker AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/21/1296; 97/21/0210 LOWER COURT JUDICIAL Keleman J OFFICER :

COUNSEL : W Robinson QC (Crown) R Burgess (Applicant) SOLICITORS : S E O'Connor (Crown) B Duchen (Applicant) CATCHWORDS : Criminal Law- - sentencing- prisoner in need of surgery- - fresh evidence on sentence- departmental responsibility to provide medical care to prisoners- - the limited role of the Court of Criminal Appeal. Crimes Act 1914 LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Crimes (Administration of Sentences) Act 1999 R v Vachalec (1981) 1 NSWLR 351 R v Sopher (1993) 70 A Crim R 570 CASES CITED: Mickelberg v R (1988-89) 167 CLR 259 R v Smith (1987) 44 SASR 587 R v White (unreported NSWCCA, 7 April 1997) R v L (unreported, NSWCCA 17 June 1996) DECISION : Leave to appeal against sentence be granted, but that the appeal be dismissed.

IN THE COURT OF

CRIMINAL APPEAL

CARRUTHERS AJ BADGERY-PARKER AJ

Monday 29 May 2001 REGINA v RODNEY WARREN JACOBS (60248/99) JUDGMENT

1 CARRUTHERS AJ: I agree with Badgery-Parker AJ. 2 BADGERY-PARKER AJ: On 8 February 1999 the applicant was indicted at Penrith District Court upon two charges laid under s 33B of the Crimes Act, of threatening injury with intent to prevent lawful apprehension. In respect of each matter the maximum penalty prescribed by the Act is imprisonment for twelve years. 3 On 16 October 1996, the applicant entered the Grace Bros store at Penrith; he was observed by security staff to place a number of items into a shopping bag. He left the store without attempting to pay and was approached by two members of the store security staff. They tried to arrest him for stealing, and a struggle followed, in the course of which the applicant, who was carrying a soft drink bottle, smashed the bottle on the ground and threatened the two men, with the broken bottle. A woman who was nearby attempted to assist the two men and the applicant struggled with her for a brief time before fleeing from the scene. When indicted the applicant pleaded guilty to both charges and was remanded for sentence on a date to be later fixed. 4 On 16 March1999 at Campbelltown District Court the applicant was indicted before his Honour Judge Keleman upon an indictment containing six counts, to which he pleaded not guilty. The trial of the applicant in respect of those matters then proceeded before the judge sitting without a jury. Following the luncheon adjournment that day, the accused was re-arraigned at his own request, and he then entered a plea of guilty to each of the six counts. All of the offences took place on 3 March 1997. There were two counts of theft of a car (counts 1 and 5), three counts of stealing from the person ( counts 2, 4 and 6) and one count of attempted stealing (count 3). Each of the three charges of stealing from the person carries a maximum penalty of fourteen years imprisonment; each of the other charges carries a maximum penalty of five years imprisonment. The facts were conveniently summarised by the sentencing judge as follows- " The first offence of steal from the person which is the second count in the indictment occurred at about 12.45p.m on 3 March 1997 when a twenty nine year old female was walking through the car park of a shopping centre at Kings Langley. A white Ford Falcon motor vehicle which had been stolen earlier that day moved along side the female. The prisoner who was the passenger in the vehicle leaned out of the window of the vehicle and pulled the female's handbag which was over her right shoulder. After a short struggle the bag pulled away from the female and the vehicle moved out of the car park. The female's handbag contained $100 in cash and other property which included a mobile phone and credit cards. The charge of attempted steal which is the third count in the indictment occurred later that day at about 1.30 p.m. when the prisoner entered a newsagency at Schofields. He picked up a newspaper and went over to the cash register. The cash register was open and the prisoner attempted to remove money tray from the cash register. However, the newsagency employee held on to the power cord of the cash register preventing the removal of the money tray. The prisoner then left the shop and got into the front passenger seat of the white Ford Falcon vehicle that had been previously stolen and used in the earlier offence. The vehicle was then driven away by another male.