R v Jenkin [2003] NSWCCA 378

New South Wales Court of Criminal Appeal

CITATION : R v Jenkin [2003] NSWCCA 378 HEARING DATE(S) : Monday 1 December 2003 JUDGMENT DATE : 1 December 2003

JUDGMENT OF : Wood CJ at CL at 1, 26; Smart AJ at 25 DECISION : Leave to appeal granted. Appeal dismissed.

CATCHWORDS : CRIMINAL LAW - application for leave to appeal against severity of sentence - detain with intent to hold for advantage - assault with intent to rob in circumstances of aggravation - whether sentence manifestly excessive. LEGISLATION CITED : Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Lowe v The Queen (1984) 154 CLR 606 CASES CITED : Postiglione v The Queen (1997) 189 CLR 295 Regina v McGourty [2002] NSW CCA 335 Regina v Thwaites NSWCCA 6 October 1993 PARTIES : Regina Mark Kenneth Jenkin FILE NUMBER(S) : CCA 60320/03 COUNSEL : F Guy (Crown) D Brezniak SOLICITORS : C. K. Smith (Crown) S. E. O'Connor

LOWER COURT District Court JURISDICTION : LOWER COURT 01/41/0113 FILE NUMBER(S) : LOWER COURT Phelan DCJ JUDICIAL OFFICER :

- 8 - IN THE COURT OF CRIMINAL APPEAL 60320/03

WOOD CJ at CL SMART AJ

Monday 1 December 2003 REGINA v MARK KENNETH JENKIN Judgment 1 WOOD CJ at CL: The applicant seeks leave to appeal against the severity of the sentences imposed upon him by Judge Phelan in the District Court on 12 February 2003. This followed upon his conviction, after trial, of two offences, namely detain with intent to hold for advantage contrary to s 90A of the Crimes Act 1900 (since repealed), for which, in this case, the maximum available penalty was imprisonment for twenty years; and assault with intent to rob in circumstances of aggravation, contrary to s 95(1) of the Crimes Act for which the maximum available penalty is, similarly imprisonment for twenty years. 2 The sentence imposed in relation to the second of these offences was one of a fixed term of four years to commence from 7 March 2001, and the sentence imposed for the first of these offences was imprisonment for ten years to commence on 8 March 2002, and to expire on 7 March 2012. A non parole period of seven year was set to commence on 8 March 2002. The effective overall sentence, with accumulation, was accordingly one of eleven years imprisonment with a non parole period of eight years. 3 It is appropriate for the purposes of this applications to adopt the facts, which were read on to the record by his Honour, having been earlier reduced to a statement, which had been provided to the Crown and to the applicant's legal representatives, and then accepted without comment. 4 His Honour said in this respect: "The victim, Mohamed Seragul Miah was a security guard employed overnight at the McDonalds Construction site at Warrawong. Towards the end of his shift at about 6.05am on 5 March 2001 he went to the nearby Commonwealth Bank ATM and withdrew $200. On his return he was about to collect his things before catching the bus home when he was grabbed by his left side by a 'black man' wearing a black hat, a mask and latex gloves, who was carrying a gun. The man pushed him into the portable toilet block.