CRIMINAL LAW – Sentence appeal – Employee theft – Effect of almost 2-year delay between confession of guilt and sentence – Delay not taken into account – Not raised on plea but obvious mitigating factor – Factual basis of aggravating factor not established – Long-standing psychological problems not adequately considered – Appeal allowed – Appellant re-sentenced.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mr T Kassimatis
Gray, Friend & Long
For the Crown
Mr S Cooper
Mr C Hyland, Solicitor for Public Prosecutions
THE COURT:
Between 1997 and 2008, Patrick James Keane, 58, was the administration manager of the Pakenham and District Golf Club. As such, he was responsible for managing the club’s finances. He had previously had a 28-year career with the Commonwealth Bank of Australia. He was single and he lived alone.
Upon his retirement from the Bank, Keane received a large superannuation payment but, as a result of at least mismanagement and possibly fraud on the part of a financial adviser, he lost a large portion of that fund. Subsequent to this event he began to gamble heavily on poker machines. It was in this context and following inevitable losses that he began to steal money from his employer. He also drank heavily.
Between 2004 and 2008, Keane stole over $433,000 from the club. Of this amount, approximately $349,000 was cash which he ought to have deposited in the club’s bank account and did not, $31,000 was salary he paid to himself to which he was not entitled and $51,000 was money he took from the club’s bank accounts by writing cheques to himself or effecting electronic transfers to his own accounts.
On 19 April 2010, Keane pleaded guilty in the County Court before her Honour Judge Jenkins to nine counts of theft, each representing an amount stolen in a particular way during a particular period and totalling the full amount involved.
On 29 April 2010, he was sentenced as follows:
Count
Sentence
Cumulation
1
3 years’ imprisonment
2
3 years’ imprisonment
3
6 months’ imprisonment
4
3 years and 6 months’ imprisonment
Base sentence
5
6 months’ imprisonment
3 months
6
15 months’ imprisonment
6 months
7
3 years’ imprisonment
8
6 months’ imprisonment
9
15 months’ imprisonment
Total effective sentence
4 years and 3 months’ imprisonment
Non-parole period
2 years and 6 months’ imprisonment
On 22 October 2010, Keane was granted leave to appeal by Redlich JA. His appeal to this Court proceeded on five grounds, four of which relied upon alleged specific errors and the fifth of which alleged that the individual sentences imposed, the total effective sentence and the non-parole period were…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Keane v R [2011] VSCA 156
Case
[2011] VSCA 156
Decision Date
CaseChat Overview and Summary
The matter of Keane v R involved the appellant, who was convicted of employee theft and sentenced to imprisonment. The appellant appealed the sentence, arguing that it was excessive due to a significant delay between the confession of guilt and the sentencing, as well as the lack of consideration for the appellant's long-standing psychological issues. The central issue for the court was whether the sentence imposed was appropriate given the delay in sentencing and the appellant's mental health history.
The court examined the legal principles relevant to sentencing, including the need to consider all mitigating and aggravating factors. It noted that the delay in sentencing, although not raised at the plea stage, was an obvious mitigating factor that could have influenced the severity of the sentence. However, the court found that the delay had not been adequately taken into account. Furthermore, the court found that the factual basis for the aggravating factor cited by the prosecution was not sufficiently established. Additionally, the court observed that the appellant's psychological problems were not adequately considered in the sentencing process.
Consequently, the appeal was allowed. The sentence was deemed to be excessive and not appropriate given the circumstances. The appellant was re-sentenced by the court, taking into account the mitigating factors that had not been properly considered in the original sentencing. The court's decision emphasised the importance of thoroughly considering all relevant factors in the sentencing process, particularly those related to delays in sentencing and mental health issues.