New South Wales Supreme Court CITATION : Regina v Kevin John JONES [2001] NSWSC 1170 FILE NUMBER(S) : SC 70080/00 HEARING DATE(S) : 14/11/01, 15/11/01, 16/11/01, 19/11/01, 20/11/01, 21/11/01, 22/11/01, 23/11/01, 26/11/01, 27/11/01,28/11/01, 29/11/01 JUDGMENT DATE : 30 November 2001 PARTIES : Regina Kevin John JONES JUDGMENT OF : Bell J at 1 COUNSEL : Howard Hamilton (Crown) Justin O'Loughlin (Accused) SOLICITORS : S E O'Connor Ross Hill & Associates (Accused) CATCHWORDS : Sentence LEGISLATION CITED : Crimes Act 1900 Criminal Procedure Act 1986 DECISION : Sentenced to a term of twelve months imprisonment; Sentence deemed to have commenced on 29 April 2000 and to have expired on 28 April 2001 THE SUPREME COURT OF NEW SOUTH WALES CRIMINAL JURISDICTION BELL J FRIDAY 30 NOVEMBER 2001 70080/00 - REGINA v KEVIN JOHN JONES SENTENCE 1. HER HONOUR : On 14 November 2001 the prisoner was arraigned before me on indictment charging him with the murder of Michael William Jones at Wagga Wagga on 29 April 2000. After a trial lasting just under three weeks, on 29 November 2001 the jury returned a verdict of not guilty. 2. Following the verdict I was invited to deal with a charge of assault as a related offence pursuant to the provisions of Pt 2 Div 4 of the Criminal Procedure Act 1986 ("the Act"). A copy of the original charge sheet together with a certificate conforming with the requirements of section 36(1)(b) of the Act was tendered. 3. The proceedings were stood over to today. Both the Crown and the defence consented to my dealing with the charge of assault as a related offence pursuant to section 37(2) of the Act. The prisoner pleaded guilty before me to that offence and I directed that a conviction be entered upon his plea. 4. The evidence upon which the Crown relies in support of the charge of assault is the evidence given by the prisoner at his trial on 26 November 2001 recorded in the transcript at pages 571 to 575 inclusive. 5. A related offence is an offence that arises from substantially the same circumstances as those from which the first indictable offence has arisen. 6. The assault the subject of the charge occurred at about 11.15am on 29 April 2000. It was the subject of evidence led by the Crown at the trial, it being said to form part of a series of connected events which culminated in Michael William Jones being placed inside an industrial waste bin and subsequently set alight. It was no part of the Crown case that the morning assault upon Michael William Jones led to him suffering any injury which contributed to his death. The evidence of the morning assault was led to establish that the accused entertained ill will towards Michael William Jones arising out of his belief that Michael Jones had stolen a cask of wine belonging to the prisoner and a man named Jack Walker. I am satisfied that the offence is a related offence for the purposes of Pt 2, Div 4 of the Act. 7. The facts upon which I approach the matter of sentence are as follows. The prisoner and Jack Walker were drinking at the rear of the Beaurepaires Tyre Shop in Wagga Wagga which was a location frequented by homeless alcoholics. They were joined by Michael Jones. Jack Walker challenged Michael Jones that he had stolen a cask of wine. Jack Walker commenced to assault Michael Jones. In consequence of that assault Michael Jones ended up on the ground shielding his face from further attack. Jack Walker called out to the prisoner "bash him, he has stolen our wine". The prisoner got up and approached Michael Jones. He observed that Michael Jones was bleeding from the face very badly. As he approached him Mr Jones was continuing to protect his face. The prisoner determined to roll Mr Jones on to his back and to achieve that object he commenced stomping on him with his feet. He did so on three or four occasions. The prisoner then sat on Mr Jones with his knees pressing into Mr Jones' bleeding face. He endeavoured to prise Mr Jones' hands away from his face in order to rough him up. To use the prisoner's words at this point he took Mr Jones by his shirt and was "shaking the shit out of him". 8. I consider this to be an objectively very grave instance of an assault brought pursuant to s 61 of the Crimes Act 1900. I note that an assault prosecuted on indictment pursuant to section 61 carries a maximum sentence of two years imprisonment. It is a Table Two offence for the purpose of the Criminal Procedure Act 1986. As such it is to be dealt with summarily by a Local Court unless the prosecuting authority elected to have it dealt with on indictment. If dealt with summarily the maximum penalty which may be imposed is one of twelve months imprisonment and/or a fine of 20 penalty units. There was no election to deal with the matter on indictment. It is before me as a related offence being dealt with in accordance with the provisions of Pt 2 Div 4 of the Act and not on indictment. 9. In those circumstances the Crown concedes that it is appropriate for me to approach the matter upon the basis that the maximum penalty is one of twelve months imprisonment. 10. The prisoner is an aboriginal man who was at the time leading an itinerant lifestyle characterised by alcohol abuse. He has a very lengthy criminal record including offences of violence. In particular I note the conviction at the Brisbane District Court on 11 May 1998 for the offence of inflicting grievous bodily harm in respect of which the prisoner was sentenced to a term of four years and six months imprisonment, suspended for four years and six months after serving 18 months. 11. The prisoner has been continuously in custody since his arrest on 29 April 2000. On 8 November 2000 at the Wagga Wagga Local Court the prisoner was sentenced to a term of six months imprisonment commencing on 28 August 2000 and concluding on 27 February 2001. I note that the prisoner has served a period of 13 months imprisonment referable to the subject offence, after the six month sentence imposed by the Wagga Wagga Local Court is taken into account. 12. I am of the view, having regard to the objective seriousness of the assault, that the appropriate course is to impose a sentence of twelve months imprisonment acknowledging that that represents the maximum that might be imposed for such an offence when dealt with summarily. Mr O'Loughlin did not seek to be heard to the contrary. 13. Kevin John Jones, I sentence you to a term of twelve months imprisonment. That sentence will be deemed to have commenced on 29 April 2000 and to have expired on 28 April 2001. ********** Last Modified: 12/17/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.