Supreme Court New South Wales Medium Neutral Citation: R v Jenkin (No 19) (Sentence) [2019] NSWSC 609 Hearing dates: 6 December 2018; 20 February 2019; 12 April 2019 Decision date: 23 May 2019 Jurisdiction: Common Law Before: Hamill J Decision: Sentenced to a total effective term of imprisonment of 19 years with a total effective non-parole period of 14 years (see [46]-[47] for individual sentences). Catchwords: CRIMINAL LAW – sentencing – manslaughter – offender found not guilty of murder – no intention to cause really serious injury – unlawful and dangerous act – detention of victim for several days – series of assaults during detention – victim homeless alcoholic – victim vulnerable – financial motivation of detention–assaults caused by frustration and temper – treatment of corpse – impact on victim's daughter – victim gave best life advice – all life precious – all life equal CRIMINAL LAW – sentencing – conspiracy to murder – motivation to interfere with missing person or homicide investigation – offender instructs stepbrother to murder a potential witness – plan to give witness a "hot shot" – maladroit effort to carry out plan – accumulation of sentences – totality of criminality – special circumstances Legislation Cited: Crimes Act 1900 (NSW), ss 24 and 26 Crimes (High Risk Offenders) Act 2006 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A(2) and 28 Cases Cited: R v Baker [2017] NSWCCA 233 R v Hines (No 3) [2014] NSWSC 1273 R v Jenkin (No 18)(Verdict) [2018] NSWSC 978 R v Lindstrom [2008] NSWSC 198 R v Paul William Turner [2018] NSWSC 1929 Category: Sentence Parties: Regina Mark Kenneth Jenkin Representation: Counsel: M Fox (Regina) G Corr (Offender) Solicitors: Director of Public Prosecutions, NSW (Regina) O'Brien Solicitors (Offender) File Number(s): 2015/00345562 Publication restriction: Non-publication orders were made on 9 May 2018 protecting the identity of 15 witnesses. There is to be no publication of the identity of the deceased's daughter. Judgment 1. On 24 November 2015, while he was in custody for unrelated offences, Mark Jenkin was charged with the murder of Mark Dower and conspiracy to murder RS. On 27 June 2018, following an eight week trial by Judge alone, Mr Jenkin was found not guilty of murder but guilty of manslaughter. He was also found guilty of the conspiracy to murder RS. [1] Mr Jenkin is now to be sentenced. 2. Mr Dower's death was the culmination of days of intermittent violence, inflicted by the offender, after Mr Dower was taken to Mr Jenkin's apartment on 22 or 23 March 2015. While he was in custody, the offender conspired with his stepbrother to murder RS. RS had seen Mr Dower's body in the offender's apartment and later became a key witness in the prosecution case. The conspiracy was calculated to ensure that the offender was not connected to Mr Dower's death. 3. Both of the offences are extremely serious. This is reflected in the maximum penalty of 25 years imprisonment in each case. [2] There is a standard non-parole period of 10 years attaching to the conspiracy offence. There is no standard non-parole period for manslaughter. The facts Manslaughter 1. The factual findings that form the basis of the offender's criminal liability can be found in the verdict judgment, predominantly at [260] – [281]. [3] I will not repeat them in detail here. 2. Mr Dower spent many years living in Finland where he taught English. While there, he married and had a daughter. On his return to Australia, he was the recipient of both an Australian and a Finnish pension. As a result, he had more money than a lot of the people with whom he associated. Mr Dower was an alcoholic and had some mental health problems. In March 2015 he was homeless. He slept on friends' couches and sometimes in the waiting room of the local public hospital. There was a recent history of violence and intimidation inflicted upon Mr Dower by the offender; the motivation for which was to obtain money and access to Mr Dower's bank accounts. 3. On about 22 March 2015, Mr Dower was taken to the offender's unit against his will. There was no violence or threats but Mr Dower felt compelled to go with Mr Jenkin and his associate Paul Turner. [4] The evidence established that Mr Jenkin had a dominating personality and had been bullying Mr Dower over the previous weeks. Mr Dower remained in the offender's unit until his death. While Mr Dower was not physically restrained during this time, the nature of the relationship between the two men meant that he felt unable to leave. The motive for the detention was that Mr Jenkin wanted Mr Dower to sober up and attend the Port Kembla Local Court to support him in relation a charge of possessing a sum of money suspected of being unlawfully obtained. Mr Dower had "given" the money to Mr Jenkin but police believed it was drug money. It was seized by police some time earlier and Mr Jenkin had been unsuccessful in trying to have it returned. 4. On at least two occasions between 22 and 28 March 2015, the offender assaulted Mr Dower, and the victim died in the offender's unit on 27 or 28 March 2015. It is not possible to know how many assaults occurred or the precise nature of the attacks. Nobody else was present and the post-mortem examination was inconclusive as to the precise cause of death and which injuries, of which there were many, were caused before Mr Dower died. Mr Jenkin's failure to seek medical attention for Mr Dower and his conduct after Mr Dower's death established a consciousness of guilt in relation to the homicide. The post death conduct included concealing Mr Dower's body and conspiring to have RS killed. Basis of liability 1. I was not satisfied that Mr Jenkin formed an intention to kill or inflict grievous bodily harm. Nor did I accept that he was recklessly indifferent to human life. However, I found that the deliberate, unlawful assaults by Mr Jenkin in the period from 22 - 28 March 2015, substantially contributed to Mr Dower's death and that he was guilty of manslaughter by unlawful and dangerous act. Conspiracy to murder 1. The facts of the conspiracy to murder are dealt with in the verdict judgment at [193] - [206] and [296] - [301]. 2. While Mr Jenkin was in custody, he and his stepbrother, [5] reached an unlawful agreement (conspiracy) to murder RS. The conspiracy was established by a series of intercepted telephone calls and the co-offender's conduct after those calls. The content of the calls made plain that the offender instructed his stepbrother to kill RS. In one call, the offender told his stepbrother to give RS a "hot shot" so that "she's really not breathing when she fuckin' leaves". RS was a drug user – they all were – and the reference to a "hot shot" was a suggestion that RS be given an overdose of heroin. There was evidence that the stepbrother attempted to source heroin and also tried to locate RS. 3. Police intervened and the conspirators were arrested. RS was placed under protection. While there were some actions beyond the conversations in which the conspiracy was formulated, the stepbrother was a rather hapless, would-be assassin and RS's life was not seriously imperilled. That is not to underestimate or understate the gravity of this criminality but it is merely to state the reality of the situation. The impact on Mr Dower's loved ones 1. Mr Dower's daughter, who does not wish to be identified by name, provided the Court with a Victim Impact Statement. She described her father as "her hero", and wishes that she could spend just one more day with him. She wants to laugh with him and hug him again. She is lost in her pain and endless grief and wrote about the hundreds of times since her father's death that she has needed his advice but could not get it. She said he "gave the best life advice". She described Mr Dower as being "so smart" with "a great sense of humour". He was the "the kindest man on this planet". I wish to extend the Court's deepest sympathy to Mr Dower's daughter and to thank her for her eloquent testimony to her father and commend her for her courage in providing her statement. 2. I do not think that she is present today but wish to say this if this published. [REDACTED], nothing I say today, and no sentence I impose on your father's killer will do much to ease your pain or compensate for your loss. I hope that in time the pain will ease although I don't know that it will. 3. There were a number of Mr Dower's friends and loved ones who gave evidence in the trial or were present at the sentence hearings. They maintained a quiet and dignified vigil over the entire proceedings. I want to mention specifically Tony Hardy. His pain and outrage at what happened to his life-long friend was palpable but he remained passive and dignified as he gave his evidence and sat quietly in the back of the court throughout the trial and sentencing hearing. I would again like to extend the Court's sympathy to Mr Hardy and to others affected by Mr Dower's unlawful killing and the senseless and incomprehensible waste of human life caused by this terrible crime. Your presence has been a testament to how much Mr Dower meant to those close to him and it is abundantly clear that he has been, and will continue to be, sorely missed. 4. The Prosecutor fairly acknowledged that the impact on Mr Dower's family was not a matter that "aggravated the sentence". [6] While the sentencing legislation makes provision for cases where that might appear to be the case, [7] the fact is that all human life is sacred, all lives are equal and almost every homicide has a devastating impact on those affected by it. [8] Objective seriousness 1. As I have said, both of the offences are extremely serious and necessarily attract substantial gaol sentences. Manslaughter 1. It was not disputed in the trial that Mr Dower was brought to the offender's unit to assist in recovering the money that had been confiscated by the police. Given that this was the motive for the detention, it is clear that Mr Jenkin did not intend to do serious harm to Mr Dower. However, the evidence established, and his behaviour in Court confirmed, that Mr Jenkin has a very short fuse and a violent temper. There was a video tape, taken on the offender's telephone, that showed the offender berating and abusing Mr Dower at what seemed to be an early stage of the period of detention. The behaviour was disgusting and humiliating. I have no doubt that the assaults on Mr Dower occurred at times when Mr Jenkin became frustrated or lost his temper. The offender made admissions to NB and SM as to why he assaulted Mr Dower. He said that one assault occurred because the offender was angry that he was unable to use his victim's key card and another beating took place because Mr Dower made a mess when he lost control of his bladder and/or bowels. 2. Shortly after 1pm on 23 March 2015 there were attempts to access Mr Dower's bank account. The attempted transactions were unsuccessful and the evidence was ultimately silent as to who attempted them. 3. Because of the treatment of Mr Dower's corpse, there was some ambiguity shrouding the timing of some of the many physical injuries evident on post mortem examination. Mr Dower's body was dropped from a second storey window and this would have caused some of the broken ribs and other physical changes observed by the pathologist. Even so, it is clear that many injuries were sustained prior to death. The injuries that were shown to have been sustained while Mr Dower was alive included fractured ribs, an injury to his mouth, a dislodged tooth, fractures to the lumbar spine, and subdural bleeding. The nature and extent of the injuries that were occasioned before his death paint a violent and traumatic picture of Mr Dower's final days. I was satisfied beyond reasonable doubt that Mr Jenkin inflicted at least two brutal assaults on Mr Dower. 4. The video taken on the offender's 'phone showed the offender berating Mr Dower, calling him a "dirty fucking rat" and saying "I'm gonna kill him". Although quite brief, the video provided some insight into the offender's treatment of Mr Dower. I am satisfied that the offender was cruel, degrading and violent towards Mr Dower, and that he suffered considerably in his final days. 5. Because of the financial motivation of the detention, the period of the detention, the brutality of the treatment, the fact that there was a series of assaults, coupled with the failure to obtain medical treatment for a man who was obviously desperately in need of assistance, this was a very serious instance of manslaughter. Conspiracy to murder 1. Mr Jenkin was the architect of the conspiracy to murder RS. While the plan was ill-formulated and did not get very far, it is a serious example of the offence because of the motivation to interfere with a person who was potentially a witness in the missing person or homicide investigation. The offender engaged his stepbrother to carry out the physical acts of the conspiracy. He instructed his stepbrother over several telephone calls to commit the murder, including how to go about it. The use of a "hot shot" on a known heroin user was calculated to make RS's death appear to be an accident. There were at least two or three overt acts taken by the stepbrother to commit the crime that was subject of the conspiracy. It was more than just "talk" as the offender attempted to assert in the course of the trial. 2. The conspiracy was motivated by the fact that RS had seen Mr Dower's body in the offender's unit. In spite of the offender's denial, I accepted RS's evidence that she also helped the offender to move the body from his unit. While the offender had not yet been charged and RS was therefore not a prosecution witness, conspiring to murder a person who could connect or implicate the offender in a serious crime makes this a particularly grave example of the offence. The seriousness is not diminished by the fact the conspiracy was frustrated due to police intervention. [9] 3. I accept the submission made on behalf of the offender that the conspiracy was "amateurish" and that the offender's stepbrother was somewhat incompetent. This is not a case where the conspiracy arises out of, or involved, a professional criminal organisation. 4. I have taken into account the critical role played by the offender, the acts done by him in furtherance of the conspiracy and the offender's motivation for entering the conspiracy (that is, to have RS murdered to thwart the investigation of a homicide). I have balanced those findings against the maladroit nature of the co-conspirator's conduct in executing the conspiracy. 5. Because there is a standard non-parole period attaching to this offence, it is appropriate that I record my assessment that the offence is within, or perhaps slightly above, the middle of the range of objective seriousness for such offences. Aggravating features 1. The Prosecutor submitted that there were a number of aggravating features to be taken into account in sentencing for the manslaughter offence. Some of these clearly exist while others are more controversial. Dealing with those matters: * The offender was on parole at the time that he unlawfully killed Mr Dower. This breach of conditional liberty is clearly an aggravating feature of the offence. * As a result of his homelessness, alcoholism and mental health problems, Mr Dower was a vulnerable person. * I do not accept the prosecution's submission that the offence involved gratuitous cruelty. It is more likely the assault occurred spontaneously as a result of Mr Jenkin's violent temper. While Mr Jenkin was indifferent to Mr Dower's suffering, it was not a case involving sadism or torture that would ordinarily be associated with the aggravating feature in s 21A(2)(f). * The manslaughter offence consisted of a series of criminal acts committed over an extended period of time. * The offender's treatment of the deceased's body showed indifference and disregard to the victim's dignity. Mr Dower's body was kept in the offender's bathtub for a couple of days before it was moved. It was then put into a surfboard bag, dropped from a second storey window and stowed in a shared laundry. It was badly decomposed when it was eventually located. * Mr Jenkin has a bad criminal history and has spent much of his adult life in gaol as a result. He has been convicted of a number of offences of violence over many years. This is an aggravating feature under s 21A(2)(d). In 2003 he was sentenced to a lengthy gaol term for offences of detain for advantage and robbery. The remarks on sentence show that this offence had some similar factual features to the present case with the offender "standing over" the victim to use his credit card. There is also a firearms offence and other less serious offences of violence and dishonesty on his record. In formulating an appropriate sentence it is important to bear in mind the protection of the community from further offences of violence. However, while the criminal history disentitles the offender to leniency and his record fits within the terms of s 21A(2)(d) because there is a history of serious personal violence offences, it is not appropriate to extend the custodial sentence beyond that which constitutes a proportionate response to the criminality in this case. In coming to this view, I note that the offender will be well into his middle age before he will be entitled to be considered for parole. The extent to which he will then present a danger to the community is a question that the relevant authorities will need to determine at that time. * While the Prosecutor is correct to identify the detention as being motivated by financial gain, he ultimately conceded that this is not an aggravating feature of the manslaughter offence itself. [10] I am not persuaded that Mr Jenkin assaulted Mr Dower with a view to obtaining any monetary benefit. * The offence consisted of a series of criminal acts (the detention and at least two separate assaults) and was committed over an extended period of time although it is not clear when the fatal act or acts were committed. In the course of the detention, there was a degree of humiliation of the victim as demonstrated by the video taken on the offender's telephone. The offender's case at trial 1. Mr Jenkin gave lengthy and self-serving evidence in the trial. There were many significant inconsistencies between the offender's account of the events surrounding Mr Dower's death and the accounts of other witnesses. I largely rejected the offender's account. Mr Jenkin is not to be punished for running a positive defence (or for pleading not guilty). However he is not entitled to the discount that would be available with a guilty plea. Like the rest of his behaviour, his conduct demonstrates a remarkable absence of remorse and empathy. The offender's personal case 1. Mr Jenkin was unable to present a strong subjective and personal case. He was 43 at the time of the offences and is now 47 years old. 2. There were a number of delays in finalising the sentencing hearing because the parties sought to obtain expert evidence as to Mr Jenkin's mental state. 3. Mr Jenkin was previously diagnosed with ADHD and an anti-social personality disorder requiring therapy and drug rehabilitation. This was the position when he was sentenced for kidnapping and robbery in 2003. For the present proceedings, reports were prepared by Dr Chew (of Justice Health), Dr Eagle (retained by the prosecution), Dr McSwiggan (retained by the defence) and Dr Dean (retained by the defence). 4. These reports show that Mr Jenkin had a "background of childhood trauma, disruption and dysfunction". This has resulted in a vulnerable psychological state and an anti-social personality disorder, low self-esteem and emotional instability. The opinion that Mr Jenkin is a man with low self-esteem would surprise those who heard and watched him give evidence but his bravado and grandiosity may be his way of coping with his self-perceived inadequacies. His psychological vulnerability has also led to "self-medication" and drug abuse. There is no evidence or diagnosis of a major mental disorder such as psychosis or mood disturbance. 5. I have taken Mr Jenkin's psychological vulnerability into account but this body of evidence does not do very much to mitigate the sentence in the circumstances in present case. It does not reduce the role that deterrence or denunciation must play or reduce the objective criminality or moral culpability. There is no evidence that it will make his time in custody particularly onerous. 6. Further, the reports stress that his risk of future violent offending is significant. So much is clear from his criminal history but, again, I note that he will be a much older man by the time he is eligible for release. 7. The offender's lawyers noted the limited periods that the offender has not been in gaol over the last 26 years. In total, Mr Jenkin has spent approximately 6 of the last 26 years not in jail. It was submitted on behalf of the offender, and I accept, that Mr Jenkin has become institutionalised. I have taken that into account in structuring the sentence. Sentencing principles 1. I have taken into account the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentence I impose must provide adequate punishment for these serious crimes; it must deter the offender, as well as other people, from committing such offences. The sentence must recognise the harm done to the victims of these two offences, and to the community as a whole. It must also balance and facilitate the protection of the community and the rehabilitation of this particular offender. I have borne in mind the maximum penalty for each offence and the standard non-parole period of 10 years that attaches to the conspiracy to murder offence. 2. The need for general and specific deterrence in the circumstances of conspiring to murder a person who could implicate the offender in a serious crime is significant. 3. The only appropriate sentencing option is a custodial sentence of some significance. Commencement date, accumulation and special circumstances 1. Mr Jenkin was charged with the present offences on 24 November 2015. At that stage he was serving another sentence. The other sentence related to a break and enter that was committed at around the same time as the manslaughter offence and the homeowner was one of the witnesses in the present case (and the ex-partner of Lisa Mara, a witness in the trial). The offences were very peripherally related to each other, at least temporally. The non-parole period for that offence expired on 24 May 2016 and the offender has been in custody solely referrable to the present offences from that date. 2. The Prosecutor accepted that it would be open to commence (backdate) the sentence to 24 November 2015 or any date thereafter, but submitted that the more appropriate date was 24 May 2016 (when the non-parole period for the break, enter and steal offence expired). 3. Taking into account the principle of totality, and noting that the criminality involved in the present offences essentially swamps or overwhelms the criminality for the earlier offence, I propose to commence the sentence on 1 February 2016. There is an element of arbitrariness in this, but I have selected the date to ensure that there is some period of separate custody for the break and enter offence, while giving effect to the principle of totality and taking into account the fact that the offences occurred at around the same time in the offender's life. 4. The criminality involved in the two offences for which the offender now stands to be sentenced is quite separate. Further, the conspiracy offence was committed in an attempt to avoid detection in relation to the manslaughter offence. Accordingly, there must be a substantial degree of accumulation between the sentences. On the other hand, the accumulation ought not to result in a crushing sentence. 5. I will make an adjustment to the non-parole period of the sentence for the conspiracy charge. This is upon my finding of special circumstances, [11] which is based solely on the accumulation of sentences and the need for a substantial parole period given the offender's institutionalisation. The proportion of the non-parole period to the total sentence will be about 73% and that is my intention. Comparable cases and statistics 1. The offence of manslaughter can occur in such a variety of circumstances that reference to other cases and statistics are of limited use. The sentences imposed for manslaughter vary wildly from non-custodial sentence to sentences of twenty years or more. 2. Similarly, there are a wide range of circumstances in which an offence of conspiracy to murder may be committed. I have considered the observations of the Court of Criminal Appeal in R v Baker and R v Lindstrom, which were cases with a similar motivation to the present. [12] In each case, based on the particular facts, the Court held that the starting point "should not be less than 12 years". I have also considered the statistics for such offences since the introduction of the standard non-parole period. Sentence 1. Mark Jenkin, for the offence of manslaughter of Mark Dower, you are sentenced to imprisonment for a period of 12 years with a non-parole period of 9 years. The sentence will commence on 1 February 2016. The non-parole period will expire on 31 January 2025. The total sentence will expire on 31 January 2028. 2. For the offence of conspiracy to murder, you are sentenced to imprisonment for 13 years with a non-parole period of 8 years. That sentence will commence on 1 February 2022. The non-parole period will expire on 31 January 2030 and that is the first date upon which you will be eligible for release on parole. There will be a balance of term of 5 years commencing on 1 February 2030 and expiring on 31 January 2035. 3. The effect of this is that you are sentenced to a total sentence of 19 years with a total non-parole period of 14 years. You will be eligible for release on 31 January 2030 and, if you are released at that time, there will be a balance of term of 5 years. 4. I am required to advise you that the provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) apply to this sentence and I direct your lawyers to explain the possible implications of that. ********** Endnotes 1. R v Jenkin (No 18)(Verdict) [2018] NSWSC 978. 2. Crimes Act 1900 (NSW), ss 24 and 26. 3. R v Jenkin (No 18)(Verdict) [2018] NSWSC 978 at [260]-[281]. 4. Mr Turner was sentenced on his plea of guilty to aggravated kidnapping: R v Paul William Turner [2018] NSWSC 1929. 5. The stepbrother's case is still before the District Court and I will not refer to him by name. 6. Crown's written submission at [15]; Transcript (6 December 2018), p 33. 7. Crimes (Sentencing Procedure) Act 1999 (NSW), s 28. 8. R v Hines (No 3) [2014] NSWSC 1273. 9. R v Baker [2017] NSWCCA 233. 10. Transcript (6 December 2013), p 13. 11. Crimes (Sentencing Procedure) Act 1999 (NSW), s 44. 12. R v Lindstrom [2008] NSWSC 198; R v Baker [2017] NSWCCA 233. 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. Decision last updated: 23 May 2019