Keating v The State of Western Australia
[2006] WASCA 65
•29 MARCH 2006
KEATING -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 65
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 65 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACR:192/2005 | 29 MARCH 2006 | |
| Coram: | PULLIN JA | 29/03/06 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PAUL STEPHEN KEATING THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Appeal Criminal law and procedure Application for leave to appeal Whether reasonable prospects of success Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA), s 27 |
Case References: | Chivers v The State of Western Australia [2005] WASCA 97 R v Brown (1982) 5 A Crim R 404 R v Ruane (1979) 1 A Crim R 284 R v White [2002] WASCA 112 Rigby v The State of Western Australia [2005] WASCA 134 Samuels v The State of Western Australia (2005) 30 WAR 473 Cameron v The Queen (2002) 209 CLR 339 Chua v The Queen [2001] WASCA 353 Dickens v The Queen (2004) 147 A Crim R 343 Duff v The State of Western Australia [2006] WASCA 37 Little v The Queen [2001] WASCA 87 Mitchell v The Queen (1998) 20 WAR 257 Webb v O'Sullivan [1952] SASR 65 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : KEATING -v- THE STATE OF WESTERN AUSTRALIA [2006] WASCA 65 CORAM : PULLIN JA HEARD : 29 MARCH 2006 DELIVERED : 29 MARCH 2006 FILE NO/S : CACR 192 of 2005 BETWEEN : PAUL STEPHEN KEATING
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : KENNEDY CJDC
File No : IND 889 of 2005
Catchwords:
Appeal - Criminal law and procedure - Application for leave to appeal - Whether reasonable prospects of success - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA), s 27
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr S B Watters
Respondent : No appearance
Solicitors:
Applicant : Thames Legal
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Chivers v The State of Western Australia [2005] WASCA 97
R v Brown (1982) 5 A Crim R 404
R v Ruane (1979) 1 A Crim R 284
R v White [2002] WASCA 112
Rigby v The State of Western Australia [2005] WASCA 134
Samuels v The State of Western Australia (2005) 30 WAR 473
Case(s) also cited:
Cameron v The Queen (2002) 209 CLR 339
Chua v The Queen [2001] WASCA 353
Dickens v The Queen (2004) 147 A Crim R 343
Duff v The State of Western Australia [2006] WASCA 37
Little v The Queen [2001] WASCA 87
Mitchell v The Queen (1998) 20 WAR 257
Webb v O'Sullivan [1952] SASR 65
(Page 3)
1 PULLIN JA: This is an application for leave to appeal under s 27 of the Criminal Appeal Act 2004 (WA). The section states that the Court must not give leave to appeal on a ground of appeal unless it has a reasonable prospect of succeeding, as to which see Samuels v The State of Western Australia (2005) 30 WAR 473. The appeal in this case is an appeal against sentence.
2 The applicant was convicted on his own plea of one count of detaining (count 1); one count of assault occasioning bodily harm (count 2); three counts of threatening to kill (counts 3, 5 and 7); two threats to compel (counts 4 and 6); 10 counts of aggravated sexual penetration without consent (counts 8 to 17) and two of indecent assault (counts 18 and 19). The applicant committed these offences against the complainant when the applicant was a prisoner in the Bunbury Regional Prison. The offences were carried out with deliberation and with planning. The complainant was a Senior Education Officer at the prison and the offences took place over a five or six-hour period while the complainant was being held against her will by the applicant in a stationery cupboard at the prison.
3 The facts were related in detail by the prosecution at the sentencing hearing. That account was accepted as correct by the applicant save for minor details and those facts were accepted by her Honour for the purpose of sentencing.
4 At the time of these offences the applicant was serving a life term of imprisonment and an indefinite term of imprisonment. In the early 1990s the applicant committed a similar but less serious set of offences whilst imprisoned in Casuarina Prison. In relation to that incident he was sentenced to 9 years' imprisonment.
5 The sentences imposed on this occasion were as follows: in relation to count 1 - 4 years' imprisonment; count 2 - 2 years' imprisonment; count 3 - 3 years' imprisonment; count 4 - 4 years' imprisonment; count 5 - 3 years' imprisonment; count 6 - 4 years' imprisonment; count 7 - 3 years' imprisonment; counts 8 to 17 - 9 years' imprisonment on each; count 18 - 3 years' imprisonment and count 19 - 3 years' imprisonment. The sentences on counts 1, 2, 9 and 14 were made cumulative.
6 In relation to the issue of totality, if one simply added up all of the sentences the total comes to 119 years. In fact, of course, by the process of making some sentences concurrent and some cumulative her Honour
(Page 4)
- arrived at 24 years as the total sentence imposed in the way that I have indicated.
7 In relation to the grounds of appeal, ground 1 reads as follows:
"The learned sentencing Judge erred when she imposed a finite term of imprisonment of 24 years that was manifestly excessive in all the circumstances such as to demonstrate error."
- There are some particulars given which concentrate on the total sentence imposed, and argue that to arrive at a sentence of 24 years her Honour must have commenced at a sentence of 45 years as a head sentence, reduced it by 9 years for the fast track plea of guilty (allowing a 20 per cent deduction) bringing it down to 36 years, and then reduced it by one-third as a result of the transitional provisions (by 12 years) to bring it to the 24 years.
8 That is not in fact what her Honour did. Her Honour sentenced in accordance with conventional methods of sentencing by setting an appropriate sentence for each offence after taking into account the transitional provisions and the plea of guilty which had been entered, and then applying totality principles and arrived at the final sentence.
9 The main argument put forward in the applicant's written and oral submissions seems to be that these offences, occurring over a five to six-hour period, were all part of one transaction. Reference is made to two cases, one a single Judge decision of another State in R v Brown (1982) 5 A Crim R 404 and another, a Court of Criminal Appeal decision in this State in 1979, the case of R v Ruane (1979) 1 A Crim R 284, which provide examples of the principle of the so-called single transaction rule. I note in fact that Ruane is an example of the non-application of the single transaction rule. The headnote in Ruane reads:
"Offences occurring close together in time are not necessarily part of one incident, and might call for the imposition of consecutive sentences."
10 In a more recent decision of this State's Court of Appeal in Rigby v The State of Western Australia [2005] WASCA 134, collects together the authorities in relation to the "one transaction rule", and, in [27] of that decision, R v White [2002] WASCA 112 was quoted to make the point that there is no hard and fast rule. In the end, a sentence must be made to balance the principle that one transaction generally attracts concurrent sentences, with the principle that the overall criminality of the conduct
(Page 5)
- must be appropriately recognised. Distinct acts may, in the circumstances, attract distinct penalties and proper weight must be given to the exercise of the sentencing Judge's discretion.
11 In my opinion it would have been quite inappropriate to apply the one transaction rule in this case. The applicant deliberately planned these offences against the female complainant. He carried them out systematically, one after another, over a period of some hours while the complainant was in fear of her life and while the applicant was armed throughout with a knife. In my opinion, this ground of appeal has no reasonable prospect of succeeding and I would refuse leave in relation to it.
12 Ground 2 reads:
"The learned sentencing Judge erred when she failed to place any or sufficient weight upon the reports of Mr Cicchini and Dr Patchett that were before the court such that the sentence imposed was manifestly excessive."
13 The written submissions on this subject read as follows:
"When Mr Keating initially entered pleas of guilty on 5 May 2005 a pre-sentence report, together with psychological and psychiatric reports was requested. …
The sentencing court also had before it a report from Mr Cicchini, a very competent psychologist. When Mr Keating was sentenced on 15 September 2005 the Court also had the benefit of the pre-sentence report that had already been done, the psychiatric assessment that had already been done and the new psychiatric assessment." (Emphasis in original).
- A little further on in the written submissions it is said:
"In sentencing Mr Keating the learned sentencing judge did not refer at all to the reports of Mr Cicchini or Dr Patchett. However, her Honour referred to the report of Prof Thomas Peters, who did not in fact see Mr Keating for the preparation of this report but had seen him many years earlier. …
In 1992 Prof Thomas Peters provided a report concerning Mr Keating. For some reason the state sought to place a further report from Prof Thomas Peters before the sentencing judge because Prof Peters' … renown and expertise in the field had
- grown and changed and his standing in the community of course wasn't as great as it now was …
Further, the State indicated that Prof Peters … only saw him on that one occasion, so he is in an ideal position to have at least some knowledge of this offender but the advantage of coming from the outside and being able to review all of the material … that's in the realm of some 20 volumes … and could provide the Court with a detailed and expert report in respect of him. …" (Emphasis in original).
14 None of this gives any clue at all as to whether Mr Cicchini, whose report, I am told, was an addendum to the pre-sentence report, and Dr Patchett, a psychiatrist, had anything of particular importance or relevance to say which would be particularly favourable to the applicant, and which might have been said to have been overlooked in a way that would create appellable error.
15 I note that Mr Sutherland, counsel appearing on the occasion of the sentencing, did not place any particular emphasis on these reports of Mr Cicchini and Dr Patchett. Only counsel for the prosecution referred to them specifically and in fact referred to them to indicate points against Mr Keating rather than points in his favour.
16 In oral submissions no further particulars were given other than that the reports of Mr Cicchini and Dr Patchett were said to be more favourable to the applicant which, as I say, is not a matter that is borne out by anything that was said to her Honour at the time of the sentencing. However, the ground is that no weight was placed on this material. In fact, reference was made to these two reports in general terms by Mr Sutherland and specifically by counsel for the prosecution, and her Honour said that she had more material than she thought she had ever had on anyone before.
17 Clearly, in those circumstances, and given the reference by one counsel that there were something like 20 volumes of material, it was not possible in sentencing remarks to refer to all of it. As I say, counsel for the accused did not refer to these reports other than by way of general description (t/s 34 and 38).
18 In my opinion, no error is demonstrated and therefore there are no reasonable prospects of success in relation to this ground.
19 Ground 3 has been abandoned.
(Page 7)
20 Ground 4 reads:
"The learned sentencing Judge erred when she failed to place sufficient weight upon the Appellant's remorse, as reflected in his pleas of guilty, such that the sentence imposed was manifestly excessive."
21 The first thing to observe about this ground is that these are a series of offences which were deliberately planned, which were carried out after that planning, and carried out in circumstances where there was no prospect that the applicant would not be apprehended and convicted following the commission of these offences. Nevertheless, the plea of guilty was taken into account and resulted in a reduction of the sentences.
22 Her Honour did not say, during the course of her sentencing remarks, that she was reducing the sentences that she would have otherwise imposed to take into account the guilty plea, and, if the matter had been left there, there is no doubt that it would have been an appellable error. It is necessary to say in open court that there is a reduction in sentence because of a plea of guilty and the relevant authorities have been referred to by counsel for the applicant. See in particular Chivers v The State of Western Australia [2005] WASCA 97.
23 Fortunately, counsel for the State raised the point, and she is to be commended for having done so. All prosecution counsel should raise the question if a Judge does not disclose whether or not there has been a reduction in sentence due to a guilty plea because, if there has been, in fact, a reduction because of the plea of guilty, it is a waste of resources, time, money and effort if it is necessary to come to this Court to have that point established.
24 Having had the question about whether her Honour had taken the plea of guilty into account raised by counsel for the prosecution, her Honour then disclosed in open court that she had indeed reduced the sentence because of the plea of guilty, and that she had also reduced it because of the transitional provisions.
25 In relation to the reduction of the sentence for a plea of guilty, once her Honour had disclosed that that had happened she had discharged her duty. Chivers' case indicates it is not necessary to say to what extent the reduction had taken place because it may well be mixed up with other relevant factors in the sentencing process.
(Page 8)
26 As a result, I am of the opinion that there is no reasonable prospect of success in relation to this ground.
27 Ground 5, which is a catch-all ground reads:
"If the Court concludes that each of the Grounds of Appeal fail individually, a combination or aggregation of the defects identified in the Grounds above means that there has been a substantial miscarriage of justice."
28 Because none of the other grounds of appeal have been shown to have any reasonable prospect of success, it follows that this ground also has no reasonable prospect of success. For those reasons I would dismiss the application.
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