Director of Public Prosecutions v Keating

[2024] VCC 1808

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 23-00864

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN KEATING

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2024
DATE OF SENTENCE:	12 November 2024
CASE MAY BE CITED AS:	DPP v Keating
MEDIUM NEUTRAL CITATION:	[2024] VCC 1808

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  False Imprisonment – Armed Robbery – Theft – Application of Bugmy Principles

Cases Cited:                   Bugmy v The Queen 249 CLR 571.

Sentence:Total effective sentence of sentence of two years and three months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Coombes	Office of Public Prosecutions
For the Accused	Mr M. Allen	Stary Norton Halphen

HIS HONOUR: 

1Sean Keating, you have pleaded guilty before me to a charge of false imprisonment, a charge of armed robbery and two charges of theft.  The maximum penalties are as follows:  false imprisonment, 10 years; armed robbery, 25 years, and theft 10 years.

2The offence of armed robbery is a Category 2 offence for the reason that it was committed in company.  What that means is that I must impose a gaol term other than a gaol term in combination with a community corrections order unless one of the exceptions set out in s5(2H) apply.

3Your counsel, quite appropriately, has not sought to advance an exception in your case.

4You have no prior convictions.  This is of great significance in your case, particularly given your profound disadvantage and exposure to trauma in childhood and a related exposure to illicit substances from childhood.

5You have battled addiction throughout your adult life, vulnerability to illicit substance use has its roots in your childhood trauma and early gravitation towards substance abuse.  Addiction was central to the criminal escapade before me.

6The circumstances of your offending are serious and they are set out in Exhibit A, which is the Summary of Prosecution Opening.  Exhibit A forms part of these Reasons for Sentence, it is a comprehensive summary of the series of events that took place whilst your helpless and unsuspecting victim was imprisoned by you and your co-offender.  I do not propose to recite the facts in detail herein.

7It is clear from the evidence and your own admissions that you were the driving force, the principal actor and main perpetrator of the offending.

8Your counsel has helpfully and accurately distilled the factual parameters of each offence before me in his excellent outline of submissions.  Mr Allen also reminded me of the actions committed by your co-offender, Mr Lear, without challenging the findings I made as expressed in my reasons for sentence in his case.  I have been mindful to sentence you on the discrete criminality charged, as set out in the opening and as set out by your counsel.

9Several aspects of the offending are worthy of specific reference and condemnation herein. 

10The application grinder was used as a pretext to meet up with your victim.  Your victim was effectively lured without his knowledge into an unsafe situation.  I am not satisfied that your plan all along was to rob your victim, but that is what transpired once payment for drugs was discussed.  The situation quickly escalated into violent demands using scissors as a weapon.  Your victim was completely vulnerable and under the control of you and your co-offender.  As I said when sentencing Mr Lear, your victim was exploited, he was robbed with a use of a weapon and had proceeds stolen from him which are set out in paragraph 28 of the opening.  Other goods were stolen from him subsequent to attendance at his premises.  It was a protracted event.

11Charge 4 involves the withdrawal of funds and cash and the transfer of your victim's funds to your account in a very significant sum.  Your role was a dominant one.  Objectively it is very serious offending, it is predatory in its nature, it was protracted, and it has subjected the victim to a terrifying ordeal.

12I have had regard to your victim’s victim impact statement.  His life has changed markedly.  He left Australia for seven months due to the impacts of your crimes.  He is trying to heal but carries significant trauma from the experience, understandably.  You violated his personal liberty in a most reprehensible way, his property and his sense of self.

13I will not go into your personal history in detail but I accept the matters that are set out in the report of Danny Sullivan and also in Mr Allen's helpful outline.

14I accept that you were exposed to various significant and traumatic adverse experiences in childhood. 

15You were born in 1988 in Auckland and you are now 36.  Your parents are of Maori and Pacifika background.  You are one of 12 children, four of whom are from the union of both your parents while the others were from your parents with other partners.

16Your environment growing up was one which exposed you to excessive alcohol abuse, intoxication in general, and exposed you to violence.  You were exposed to harsh discipline.  You experienced neglect, disadvantage and a lack of love and care within the house at times.  You were also subjected to physical and sexual abuse. I will not go into the details herein.

17It is to your credit that you ultimately completed secondary education in 2006, and then a hospitality course in TAFE.  You then worked in the hospitality industry and moved to Australia in 2011.  You lived in Melbourne for some four years or so working at a manufacturing company in Laverton and then in hospitality.  In 2015 you moved to Adelaide and worked in aged care, and you worked in Perth at a meatworks.  Your last job, I was told, was in traffic control in 2021.

18I have touched on your history of substance abuse.  These matters are set out at paragraphs 11 to 16 of Mr Allen's outline and I will not recite them herein, other than to re-state the findings I have made that your substance abuse has its origins in early exposure in childhood, childhood trauma and disadvantage.

19Your personality has also been shaped by adverse childhood experiences.  It was submitted to me, based on the evidence from Dr Sullivan which I accept, that you have personality vulnerabilities and prominent borderline and histrionic traits including emotional dysregulation - this is relevant to the matters before me - mood lability, superficial intimate and non-intimate relationships and propensity to self-harm.  You require ongoing psychological intervention.

20Dr Sullivan opines that at the time of the offending your intoxication with drugs would have impaired your capacity to think clearly and make calm and rational choices and would have disinhibited you and reduced your capacity to exercise sound judgment.

21This finding by Dr Sullivan, which I accept, is relevant to my sentencing analysis in this way:  I find your moral culpability for your vulnerability to substance use and your drug addiction to be greatly reduced due to the fact that you gravitated towards it at a young age in the context of profound disadvantage and trauma, to which I have alluded.  The pursuit of drugs clearly had a central role in the offending.

22I have had regard to your remorse which I find is genuine and significant.  You expressed regret and remorse to Dr Sullivan.  In your letter to this Court you also stated:

'First and foremost to my victim, I want to emphasise how sorry and remorseful I am that this was out of character for me and that I take full responsibility for my substance fuelled rampage that helped influence my behaviour, and now I comprehend what that looked like at the time.  Again, I do apologise and want to reiterate how sorry I am.'

23I accept that as genuine and I have concluded that your remorse is also reflected in your application in custody to complete the courses and programs that are evidenced by the bundle of certificates before me, which for a 12 month period is very significant.

24Whilst on bail, prior to being re-remanded, you participated in the CISP program, and I have taken that into account.  You have been engaged with Thorne Harbour Health, and I received material from Thorne Harbour Health which I have also taken into account.  You participated in case management with the Open Door. 

25All of these things, together with your plea of guilty, your contrition and acceptance of responsibility, and your genuine remorse. I find that you have remorse to a high level and also that you genuinely want to change and are taking active steps to address your behaviours, and particularly your vulnerability to substance use, to develop strategies in that regard.

26I was told about your goal setting and how you have goals of engaging in work, which you are very capable of doing, but you understand that central to all of that is addressing vulnerability to substance abuse.

27When I consider all of those features, and particularly your absence of prior convictions and your work history, but also your remorse and your progress on bail and in custody, I consider you have good prospects of rehabilitation.

28I know you have some pending matters, but they were addressed, quite appropriately, by Mr Allen.  They do not impact on that finding of sound prospects of rehabilitation, in my view.

29In relation to rehabilitation, Dr Sullivan identifies treatment requirements. 
At 72 and 73 of his report he states:

'Mr Keating requires ongoing psychological intervention such as that offered by Thorne Harbour Health.  This includes preventive health directed at high-risk behaviours including using drugs and engaging in sexual activity while intoxicated.  He also requires significant health intervention to address reported metabolic syndrome, and it is likely that these conditions will require medications.' 

'These conditions will be significantly exacerbated if he returns to methamphetamine or other substance use.  The primary treatment needed for Mr Keating is a significant and sustained drug and alcohol intervention to address a longstanding preposition to substance use beginning in his early teens, involving multiple substances and relapsing and strongly associated with deteriorated psychosocial functioning including homelessness and loss of employment. Specific responsivity issues including his sexuality should inform treatment.'

30Mr Allen on your behalf relied upon your plea of guilty and your sentence is discounted due to the plea of guilty which resolved a day after your co-offender pleaded guilty, as I understand it, so for all intents and purposes at the same early stage - at the contested committal stage.

31Mr Allen also relied upon the application of the Bugmy principle, and I find that in your case the mitigation that flows from the application of the Bugmy principle has full effect in your case given the matters before me which I accept.

32Very significantly in your case, you are a citizen of New Zealand and not Australia.  I was referred to the recent case of Tufue v The King [2024] VSCA 22 which is a recent re-statement of the established approach in relation to the issue that is present in your case, and that is visa cancellation.

33Reading from paragraph 29 of the judgment:

'When sentencing an offender who is not an Australian citizen but the holder of a visa issued under the Migration Act, the court may take into account the prospect of deportation following the sentence as a relevant sentencing factor in two ways:  first, that the expectation of being deported following release may mean the burden of imprisonment will be greater for that person than for someone who faces no such risk, and secondly, in an appropriate case it would be proper to take into account the fact that a sentence of imprisonment will result in the offender losing the opportunity of settling permanently in Australia.  A sentencing court should not speculate as to the risk of deportation or its impact.  Evidence is required to permit sensible qualification of the risk.

34Mr Allen made submissions, which I accept, that there is a real risk, a very real risk you will be subject to deportation due to the sentence I have concluded that I should impose. Your visa will be cancelled.  That is mandatory under the Act, that is not a matter that this court determines.  That would then, as I understand it, leave you in a situation where you have to apply for revocation of that cancellation and again, that is an administrative matter that is beyond the reach of this court.

35So that very real and imminent risk of deportation has a significant impact on you and weighs heavily upon you.  I also have regard that there is a very real risk in your case which flows from that, that will result in you losing the opportunity to settle in Australia.  I cannot conclude that either of these are settled facts because there is the prospect of revocation, but that serious and imminent risk is certainly one which will cause hardship to you and no doubt has to this point in time.

36Particularly in your case, given you would have to uproot yourself and return to a country where you have no family support, as I am informed and as I accept, and where you have not resided for 13 years.  All of your family is now here, your parents are now deceased I was told.  In your letter to this court you said:

I left New Zealand almost 15 years ago, it was once my home and but now New Zealand is only where I come from.  I left New Zealand because it wasn't the place for me and at the time of departure, yes I was leaving behind my siblings there for us, and my parents had passed on so everything, everyone that is important and that can help me after I am released from prison now resides here, between three States across Australia.

37You then went on to refer to your sisters who are both due to give birth.  I accept all of what is stated there. 

38I have had regard to totality of course, and parity in particular has been an important consideration in your case.  Starting with before arriving at sentence, I have to approach the sentence on the basis that armed robbery is a category 2 offence for which I must impose a gaol term other than a gaol term in combination with a community corrections order, no exception applies.

39So accepting that from the outset and in arriving at sentence from that starting point, I must then apply the principle of parity or appropriate disparity, as the case may be in this case.  It is common ground that the overall sentence I impose upon you will be disparate from the sentence imposed on Mr Lear.  I must be careful that the disparity does not give rise to a justifiable sense of grievance. 

40Having regard to the circumstances of offending and the personal circumstances of each of you and the mitigation available to each, the starkest difference between you and Mr Lear from a sentencing perspective, is the role played by each of you in the offending.  The respective roles are not merely reduced to individual actions and utterances.  I have found that based upon the objective evidence and the cognitive profile of Mr Lear, and an admission of yours that your co-offender 'just goes with it because he's in love with me' that you played the leading role.

41The second point of difference was the substantial offer of assistance made on the part of Mr Lear, which was real and genuine.  Mr Lear's cognitive profile is also another significant matter, quite apart from its relationship to role that affords him mitigation not available to you and mitigation of some weight. 

42I have found that the mitigation available to you that flows from the application of the Bugmy principle to be greater in your case than it applied in Mr Lears.  You have no criminal record, which as I have said at the outset is to your great credit, given your disadvantaged and trauma-filled childhood which has a causal relationship with your vulnerability to substance abuse.  Your sentences are mitigated due to the role of illicit substance use in the offending and the reduction in your moral culpability for addiction given early exposure.  As I have stated your remorse is genuine. 

43A very significant factor of distinction between the two of you is the impact upon you of visa cancellation.  I have put considerable thought into this aspect of the sentencing exercise particularly with regard to parity and whether the sentence I will now impose is too disparate from Lear's sentence given the impact of visa cancellation.  I gave careful consideration to whether a sentence approaching but less than 12 months would be appropriate in respect of armed robbery, given the sentencing considerations that I must apply.

44The sentences I impose have to reflect the gravity of the offending and your role.  The sentences have to appropriately deter others, deter you, although I am satisfied given your history and what I have said about your prospects that that does not have primacy in this case.  The sentences must denounce the offending and protect the community.  I must have regard to the maximum penalties of course.  I must also arrive at the sentence having regard to your previous good character and your prospects of rehabilitation, your remorse and the substantial matters in mitigation available to you. 

45Drawing together all of these considerations I find I am unable to conclude that a sentence of less than 12 months on the charge of armed robbery is within the range given the objective gravity and the considerations I have referred to.

46If I considered a sentence under 12 months to fall within sound sentencing exercise, I would have done so without hesitation.  I have substantially moderated the individual sentences, the head sentence and the non-parole period to reflect the mitigation available to you due to the impacts of statutory visa cancellation, and also with regards to parity.

47I sentence you as follows, Mr Keating.

48On Charge 1, false imprisonment, you are sentenced to nine months' imprisonment.

49On Charge 2, armed robbery, you are sentenced to 22 months' imprisonment.

50Charge 3, theft, you are sentenced to two months' imprisonment.

51Charge 4, theft, you are sentenced to three months' imprisonment.

52I direct that four months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, Charge 2 being the base sentence.  I direct that one month of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 2.  That makes a total effective sentence of 27 months or two years and three months.

53I set a non-parole period of 15 months.

54Were it not for your pleas of guilty I would have sentenced you to a total effective sentence of three years nine months' imprisonment with a non-parole period of two years and three months.  I make that declaration pursuant to s6AAA.

55I declare that pursuant to s18 of the Sentencing Act 1991 you have served 374 days of pre-sentence detention in relation to this matter.

56Now were there any other orders, Mr Combes, where there any disposal orders in this?

57MR COMBES:  Yes, there is a draft compensation order has been forwarded to your chambers.  If you don't have that to hand, Your Honour, I will ‑ ‑ ‑

58HIS HONOUR:  Yes.

59MR COMBES:  ‑ ‑ ‑ arrange for a further copy to be forwarded.

60HIS HONOUR:  Yes, maybe arrange for a further copy.  Have you seen this,
Mr Allen?

61MR ALLEN:  I have, Your Honour.  I must admit I haven't raised it with
Mr Keating, so perhaps when it's forwarded to Your Honour's chambers I can reply with the position on the behalf of the defence and the matter could be dealt with administratively.

62HIS HONOUR:  Yes.  That is satisfactory.  Yes, we'll do that.  So I have mentioned, Mr Keating, your prospects of rehabilitation and your desire to remain in Australia to be with family and seek revocation of cancellation of your visa, and I encourage you to do so.  Actual deportation as opposed to the imminent risk would be very harsh in your case.

63Nothing else, no other orders?

64COUNSEL:  Nothing further, Your Honour.

65HIS HONOUR:  Well I will adjourn the court and I will make a decision on the compensation application separately, the orders for sentence will be done.

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