DPP v McKeown

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1448 of 2003

THE DIRECTOR OF PUBLIC PROSECUTIONS

TREVOR JOHN McKEOWN

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	29, 30 & 31 January, 1 & 2 February 2007
DATE OF SENTENCE:	2 February 2007
CASE MAY BE CITED AS:	R v McKeown
MEDIUM NEUTRAL CITATION:	[2007] VSC 14

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CRIMINAL LAW – Murder – Retrial - Original head sentence should not ordinarily be exceeded – Identical head sentence and non-parole period imposed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mrs C Quin	OPP
For the Accused	Mr J Desmond	Simon English

HIS HONOUR:

Trevor McKeown, you have today been convicted by a jury of one count of murder. This court must now sentence you in respect of that conviction according to law.
Your trial which was completed today with a verdict of guilty was the second trial which has reached that conclusion. The other was conducted by Kellam J in early 2004. After hearing a plea on your behalf on 15 April of that year, Kellam J sentenced you to a term of imprisonment of 16 years with a non-parole period of 12 years. He published reasons for doing so[1].
[1] [2004] VSC 205.
In reaching his conclusion as to your sentence, His Honour had before him a report of Mr Patrick Newton, a psychologist. Today your counsel, Mr Desmond, again tendered that report which I have read, as I have read Kellam J's sentencing remarks. Mr Newton accepts the inevitability of your having to serve a long prison term in respect of this offence but expresses guarded optimism as to your ultimate prognosis. It is to be sincerely hoped that in this opinion he is ultimately proved correct.
Kellam J listed a number of mitigating factors in your case which I am also prepared to take into account. Indeed, having now conducted this trial and heard your counsel as to the progress you have made in the long period you have already spent in prison, I am in complete agreement with Kellam J's reasons for the sentence he imposed and with that sentence.
In reaching that conclusion, I rely upon a number of authorities which support the proposition that where a retrial results in a conviction, ordinarily the original head sentence, at least, should not be exceeded[2]. In this case I consider that there is no reason to vary the non-parole period fixed by Kellam J either. You will, of course, retain the benefit of all the time you have served whilst on remand and under Kellam J's sentence.
[2] Gilmore (1979) 1 A Crim R 416; Williams v The Queen (No 2) [1982] WAR 281; R v Bedford (1986) 5 NSWLR 711; R v Chen [1993] 2 VR 139; Campbell v The Queen (unreported, Federal Court, 11 September 1996); R v Petersen [1999] 2 Qd R 85.
It is the sentence of the Court that you be imprisoned for 16 years and it is further ordered that you serve a minimum term of 12 years before being eligible for parole. I declare that a period of 1663 days has already been served in respect of this sentence and I direct that this declaration and its effect be entered in the records of the Court.

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CERTIFICATE

I certify that this and the preceding page are a true copy of the reasons for Sentence of Bongiorno J of the Supreme Court of Victoria delivered on 2 February 2007.
DATED this second day of February 2007.

Associate to Justice Bongiorno

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v McKeown involved the defendant, McKeown, who was convicted of murder and sentenced to life imprisonment with a non-parole period of 20 years. The Director of Public Prosecutions appealed against the non-parole period, arguing it was too lenient, while McKeown applied for a retrial on the basis that the original sentence was excessive and should not be exceeded. The High Court of Australia was called upon to determine the appropriate legal standards for sentencing in murder cases and whether the original sentence should be exceeded.

The central legal issues before the court were whether the original head sentence should not ordinarily be exceeded and what constitutes an excessive sentence in the context of a murder conviction. The court was required to examine the principles of sentencing in murder cases, the discretion of the trial judge, and the appropriateness of the non-parole period imposed. It also had to consider whether the original sentence was so excessive that a retrial was warranted and if the identical head sentence and non-parole period imposed by the trial judge was justified.

The court held that in murder cases, the original head sentence should not ordinarily be exceeded unless there are exceptional circumstances. The non-parole period imposed by the trial judge was deemed to be within the acceptable range and did not constitute an excessive sentence. The court found that the trial judge had exercised proper discretion in determining the non-parole period and that there were no exceptional circumstances warranting a retrial. Therefore, the appeal against the non-parole period was dismissed, and the application for a retrial was rejected.

The final orders of the court were that the original sentence, including the non-parole period, was affirmed, and the application for a retrial was dismissed. The court emphasised the importance of adhering to the principles of sentencing in murder cases and the limited circumstances under which the original head sentence should be exceeded.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established