R v Michael JACKSON [2009] NSWSC 168

New South Wales Supreme Court

CITATION : R v Michael JACKSON [2009] NSWSC 168 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 04/03/2009

JUDGMENT DATE : 27 March 2009

JUDGMENT OF : Howie J at 1

DECISION : The offender is sentenced to a term of imprisonment consisting of a non-parole period of 5 1/2 years to date from 31 October 2007 with a balance of term of 2 1/2 years from 1 May 2013. The offender is eligible to be released to parole on 30 April 2013.

CATCHWORDS : Criminal Law - Sentence - Manslaughter - death arising in armed robbery offence - offender not the killer.

CATEGORY : Principal judgment

R v Webb [2008] NSWSC 1351 CASES CITED : R v Frazer and Spencer [2007] NSWSC 1449 R v Henry (1999) 46 NSWLR 346

PARTIES : Regina v Michael John Jackson

FILE NUMBER(S) : SC 2008/5371

COUNSEL : J Pickering - Crown L Wells - Offender

SOLICITORS : S Kavanagh - Crown S O'Connor - Offender

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION CRIMINAL LIST

HOWIE J

FRIDAY 27 MARCH 2009

2008/5371 REGINA v Michael John JACKSON

REMARKS ON SENTENCE 1 HIS HONOUR: The offender pleaded guilty to manslaughter arising from the death of Mohammed Kader on 28 January 2007 during the course of an armed robbery committed on an Indian restaurant in Petersham. The deceased was an employee of the restaurant. The deceased was actually killed by a co-offender, Webb, who has been sentenced for his murder: see [2008] NSWSC 1351. 2 It is unnecessary to set out the facts in any great detail. The offender and Webb agreed to commit an armed robbery and for that purpose stole a motor vehicle. Webb armed himself with a "club lock" taken from the vehicle and went into the restaurant. The offender waited in the vehicle initially. Webb walked to the far end where the deceased was washing up in a sink. An altercation occurred between the two during which Webb picked up a knife and stabbed the deceased. While this was taking place the offender entered the restaurant and stole the cash register. The two men fled to the motor vehicle and made their escape. Later the stolen car was located and the empty cash register found near by. 3 There was fingerprint and DNA evidence at the scene and telephone intercepts that linked the offender with Webb and the commission of the offence. The offender was arrested on 30 May 2007. While in custody he spoke by telephone to his de facto and police lawfully intercepted those calls. They contained material that indicated the offender's involvement in the robbery. Webb was arrested on 4 June 2007. 4 The offender's liability for manslaughter is based upon an agreement with Webb to rob the restaurant, Webb's role being to threaten the occupants with a weapon while the offender took the cash register. The agreement did not include the offender foreseeing the possibility that Webb would use a knife to kill any person being robbed but he did appreciate the possibility that Webb would use a weapon to inflict injury upon some person during the course of the robbery but not with the intention of inflicting grievous bodily harm or death. It is a form of manslaughter by unlawful and dangerous act. 5 It is clearly a serious offence, as it would have been even had no person been seriously injured. Persons working in shops, restaurants and such like are vulnerable to robbery offences because they are places where money could be expected to be present. Fortunately we have not yet reached the state of affairs where those types of persons are armed to protect themselves. The courts, therefore, must seek to protect them by sentences of sufficient severity to act as a real deterrent. Of course even though the offender believed that no one might be hurt and may have even hoped there would be no actual violence, he must accept both moral and criminal responsibility for the death of the deceased who was a victim of the robbery in which he was engaged. 6 The offender is aged 31 and is the father of 7 children. Two of those live with his one-time partner but that relationship no longer exists. He had a deprived upbringing and has suffered from drug dependency most of his life. He was using drugs at the time of this offence. He is of the aboriginal race. He has had little in the way of employment during his life. He told a psychologist that he wanted to avoid offending in the future and give up a life ruled by drugs. But so far that has not occurred notwithstanding attempts at drug rehabilitation courses. One of the problems has been that his ex-partner was also drug addicted and he fell back into that lifestyle whenever he lived with her. His real hope of reform apparently lies in moving away from Sydney. 7 He has a criminal record dating back to the Childrens Court for dishonesty offences. He has as a juvenile been subject to bonds, community service and a control order. There has been some minor violence in his record. In 1998 he was sentenced to imprisonment for stealing from the person. In 1999 a term of imprisonment was imposed for break and enter. He was given the opportunity of a bond in 2001 together with a short sentence for break and enter offences. In 2003 he was sentenced for aggravated break, enter and steal. He was imprisoned again in 2004 for burglary type offences. 8 A major aggravating factor in the present offending is that he was released to parole on 1 November 2006. Four days after this present offence he was arrested on other matters and returned to custody. He was sentenced on 22 March 2007 to a sentence including a non-parole period of 9 months to expire on 31 October 2007. His parole was revoked and he was to serve the balance of his term until 1 May 2008. He has been in custody at some stage in every year between 1998 and 2009. 9 The offender is a talented artist and some of his work is on display at a public school. He has completed a TAFE course in this regard. He has at various times while in custody completed trade and life-style courses. The offender gave evidence before me and described growing up in Redfern with alcoholic parents. He started abusing drugs from the age of 13 and by age 18 was using cocaine and heroin. He said that he started thieving in order to help support the family. 10 He is on protection while in prison as a result of giving evidence against the Fernando cousins many years ago. He was then aged 16 and since that time has always been placed on protection whenever he is in custody. There is no real hardship caused by his current protection although it does make it more difficult for him to participate in education courses. He reiterated what he had told the psychologist that he wanted to make a change to his lifestyle and believes that will be easier if he remains separated from his partner. I could not form any view about his prospects of rehabilitation at this time despite his hopes and intentions on release. The simple fact is that he is probably already institutionalised. 11 I accept that he is not normally of a violent disposition and perhaps even has an aversion to violence. That probably accounts for his giving evidence against the Fernando cousins who stabbed a young lady to death many years ago. I accept, therefore, that he is genuinely remorseful for the death of the victim in this matter. He is entitled to a discount for his plea of about 15 per cent. He was not the person who caused the death of the victim and his criminality is derivative. 12 One of the difficulties with manslaughter sentences is that they seem now to be out of kilter with sentences for other offences. The simple fact is that by parliamentary intervention and a reappraisal of sentences for murder by the courts, sentences for that offence have dramatically increased from those imposed before 2000. Yet by and large sentences for manslaughter have not increased in the same proportion. I mentioned this problem in R v Frazer and Spencer [2007] NSWSC 1449 when sentencing offenders who had participated in a serious home invasion. There was a valid argument that they would have been liable for a heavier sentence had the victim not been killed given the increased maximum penalty for aggravated break and enter offences and the applicable standard non-parole period. 13 Similarly in the present case the sentence for manslaughter has to be seen against the guideline judgment in Henry dealing with armed robbery offences. This offender would be liable under that guideline for a sentence well above 5 years simply for the armed robbery offence alone. It seems to me that a time must come when the range of sentences for manslaughter need to be reconsidered. But it is not appropriate to do so in this case. 14 Frazer and Spencer was a more serious case than this, notwithstanding that Spencer was not even present when the robbery occurred. He had been the instigator. That case involved entering a private home in the early hours of the morning while one of the robbers was armed with a loaded firearm. I noted in that case that I would have imposed heavier sentences but for what I perceived to be the range for similar manslaughter offences. 15 As I have already noted the offender was on parole at the time and this is a seriously aggravating feature of the offence. The Crown conceded that I should back-date the sentence to the date upon which his non-parole period expired being 31 October 2007. The offender did not suggest an earlier date. I pointed out to the Crown that I would be entitled to date the sentence from the expiration of the sentences he was serving having regard to the fact that his parole was not revoked by reason of this offence. However I will give him the benefit of the back-date suggested by the Crown on the basis of the application of the totality principle and to some extent as an act of leniency. 16 Unconstrained by what I perceive to be the range, I would have started with a sentence of 12 years imprisonment. But it seems to me that the appropriate starting point is 9½ years. There is to be a discount of 15 per cent that results in a total term of about 8 years. There are no special circumstances other than arise from the fact that he will be serving this sentence cumulatively upon other sentences. This is notwithstanding the offender's need for assistance to overcome his drug dependency. As I stated during the hearing, the difficulty for the offender will be to convince the Parole Board that he should be released at the expiration of the non-parole period. The offender will have been in continuous custody from 1 February 2007.