By Paul Gregoire and Ugur Nedim
Mark Kenneth Jenkin was sentenced to almost two decades behind bars last week over the manslaughter of a 56-year-old pensioner. Known as the “monster of Mangerton”, Jenkin subjected Mark Dower to such brutal beatings over the course of a week in March 2015 that the victim died.
Something of a standover man, Jenkin was bashing Dower, who was homeless, inside his public housing apartment in Mangerton in order to gain access to the pensioner’s money. Video footage from Jenkin’s phone and eyewitness reports gave a heinous account of Dower’s last week.
After leaving Dower’s lifeless body in his bathtub for two days, Jenkin put it in a surfboard bag, dropped it out his second floor window and hid it in the shared laundry of the apartment block. Police found the body in mid-April after receiving an anonymous tip off.
Jenkin was charged with murder on 24 November 2015. He was already in custody at the time over an unrelated break and enter conviction. The offender subsequently pleaded not guilty to the charge of murder.
In June 2018, 47-year-old Jenkin was found guilty of the lesser offence of manslaughter. NSW Supreme Court Justice Peter Hamill told the court that he was satisfied the accused didn’t have any intention of killing Mr Dower, and nor did he have intent to cause grievous bodily harm.
A long stint behind bars
The crime of manslaughter falls under section 18 of the Crimes Act 1900 (NSW). Whilst similar to murder in that the offender’s actions lead to the unlawful death of another, manslaughter differs in that the killing doesn’t involve premeditation or malice aforethought.
Section 24 of the Crimes Act provides that the maximum penalty for manslaughter is 25 years imprisonment.
On 23 May, Justice Hamill sentenced Jenkin to 19 years in prison, with a non-parole period of 14 years. This sentence was not only for the manslaughter conviction, but it took into account a second count of conspiracy to commit murder.
In late 2015, Jenkin was heard over a tapped phone speaking from inside prison suggesting that his brother give a “hotshot” of heroin – a lethal dose – to the woman they’d found out had told the police about the body. Although, the plot was never carried out.
The unintentional killing of another
At common law, there are two types of involuntary manslaughter: manslaughter by unlawful and dangerous act, and manslaughter by criminal negligence. The first type – by unlawful and dangerous act – does not involve an intention to kill the other person.
Although, the unlawful and dangerous act that results in the death of another must be a wilful action carried out by the perpetrator voluntarily. And it must be established that a reasonable person would have realised that the act was exposing the victim to risk of injury.
Manslaughter by criminal negligence also involves no intent to kill. It comprises of a conscious act on the behalf of the offender, which entails such reckless disregard of the standard of care and high risk of injury that it merits criminal punishment.
The NSW Court of Criminal Appeal 2004 case R versus George involved criminal negligence, where a man was convicted of manslaughter for failing to provide adequate care to his elderly mother, which resulted in her death.
There are three categories of statutory manslaughter in NSW: provocation, substantial impairment and excessive self-defence. These are referred to as partial defences as they don’t result in the accused being absolved of criminal culpability. It rather lessens how culpable they are.
There first two examples – provocation and substantial impairment – are referred to as voluntary manslaughter, while excessive self-defence can be described in this manner if intent is established.
The partial defences
Section 23 of the Crimes Act provides that a charge of murder can be downgraded to manslaughter in the case of provocation, which involves the actions of a victim causing an accused to lose control prior to committing the killing and therefore, they’re not as culpable as a rational person.
If it’s established that an accused killed whilst they were substantially impaired, this can reduce a charge of murder to manslaughter. As set out in section 23A of the Crimes Act this occurs when an underlying condition causes the person to lose rational and moral judgement.
The underlying condition must be a long-term physiological or mental condition. It cannot be transitory. And being under the influence of alcohol or other drugs is not a form of impairment that warrants this type of defence.
The partial defence to murder of excessive self-defence is contained in section 421 of the Crimes Act. It can be invoked in cases where a person purposefully and unreasonably uses lethal force to defend themselves or to prevent their loss of liberty as they believe this to be necessary.
In the 2017 Victorian Supreme Court case The Queen versus Brown, the offender pleaded guilty to manslaughter as he conceded to using excessive self-defence, when he stabbed his brother once in the chest, after the victim had yet again threatened violence against the offender’s family.
The provocation defence in NSW was altered in 2014, when an amendment bill was passed that means the defence can now only be used in cases of “extreme provocation”. This abolished the ability to argue that an unwanted sexual advance or a jealous rage caused an offender to kill.
In November 2016, Monash University senior criminology lecturer Dr Kate Fitz-Gibbon told Sydney Criminal Lawyers that she doesn’t believe the change went far enough, as while it means men who kill their partners can’t employ it over jealousy, it leaves family violence victims in the cold.
Dr Fitz-Gibbon explained that the amendments made the partial defence basically redundant, so family violence victims can’t utilise it. Therefore, the authorities should have completely abolished it, and at the same time, strengthened evidence laws and the complete defence of self-defence.
In the case of convicted manslaughterer Jenkin, Justice Hamill said last Thursday that the offender had spent most of his adult life inside for committing violent crimes. And in regard to his behaviour in court, the justice set out that it showed a “remarkable lack of empathy or remorse”.
Justice Hamill also expressed sympathy for Mr Dower’s daughter who lives in Finland, stating that no sentence imposed would ease her pain. “All human life is sacred. Almost every homicide has devastating impact on those affected by it,” the justice remarked.