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Keeley v R

Keeley v R

Case [2014] NSWCCA 139 25 July 2014

Criminal Liability

Sentencing

Aggravated Sexual Assault

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Keeley v R [2014] NSWCCA 139
Hearing dates: 14 February 2014
Decision date: 25 July 2014
Before: Ward JA at [1];
Johnson J at [9];
RS Hulme AJ at [145]
Decision:
Leave to appeal against sentence granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - Applicant pleaded guilty to three counts of aggravated sexual intercourse without consent contrary to s.61J Crimes Act 1900 and one count of aggravated robbery involving the deprivation of personal liberty contrary to s.95 Crimes Act 1900 - indecent assault offence also taken into account on Form 1 - Applicant accosted victim (a stranger) in public street and forced her down alleyway at knifepoint - Applicant then engaged in one digital penetration offence and two penile/vaginal penetration offences before robbing victim of her wallet and running away - 29-year old offender - Applicant with polysubstance dependence and Cluster B Personality Disorder (Anti-Social and Borderline Personality Disorder) - concerns about risk of reoffending - whether findings of fact in relation to degree of premeditation and Applicant's level of intoxication lacked evidentiary basis - findings open on evidence - whether partially accumulated sentences imposed for penile/vaginal penetration offences effected double punishment of Applicant contrary to law - no error demonstrated - whether sentences manifestly excessive - objective gravity of offences - sexual attack by armed offender upon woman in public street - repeated sexual assault offences - importance of general deterrence on sentence for offences of sexual violence committed against stranger in a public street - sentences not unreasonable or plainly unjust - appeal dismissed
Legislation Cited: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912
Cases Cited: Beldon v R [2012] NSWCCA 194
Boney v R [2008] NSWCCA 165
Bourke v R [2010] NSWCCA 22; 199 A Crim R 38
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Currie v R [2013] NSWCCA 267
Doe v R [2013] NSWCCA 248
Duffy v R [2009] NSWCCA 304
Hili v The Queen [2010] HCA 45; 242 CLR 520
Markarian v The Queen [2005] HCA 25; 228 CLR 357
MH v R [2011] NSWCCA 230
Mulato v R [2006] NSWCCA 282
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Da Silva (NSWCCA, 30 November 1995, unreported)
R v Fernando (1992) 76 A Crim R 58
R v Gill [2010] VSCA 67
R v GWM [2012] NSWCCA 240
R v Hibberd [2009] NSWCCA 20; 194 A Crim R 1
R v Hilton [2005] NSWCCA 317; 157 A Crim R 504
R v Hinchliffe [2013] NSWCCA 327
R v KB; R v JL; R v RJB [2011] NSWCCA 190
R v King [2009] NSWCCA 117
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v O [2005] NSWCCA 327
R v Palu [2002] NSWCCA 381; 134 A Crim R 174
R v Qutami [2001] NSWCCA 353

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.

Continue reading Keeley v R

Details

AGLC: Keeley v The Queen [2014] NSWCCA 139
Case: [2014] NSWCCA 139
Decision Date: 25 July 2014

CaseChat Overview and Summary

The applicant in this case pleaded guilty to three counts of aggravated sexual intercourse without consent and one count of aggravated robbery. The applicant accosted the victim, a stranger, in a public street, forced her down an alleyway at knifepoint, engaged in the sexual offences, robbed the victim of her wallet, and fled. The applicant, aged 29, has polysubstance dependence and a Cluster B Personality Disorder. The court was required to decide whether the findings of fact regarding the degree of premeditation and the applicant's level of intoxication lacked evidentiary basis, whether the partially accumulated sentences for the penile/vaginal penetration offences constituted double punishment, and whether the sentences imposed were manifestly excessive.

The court found that the findings of fact were supported by the evidence. The applicant's level of intoxication and premeditation were considered, but the court determined that the sentences were not unreasonably or plainly unjust. The court emphasised the importance of general deterrence for offences of sexual violence against a stranger in a public street. The objective gravity of the offences was considered, and the court held that the sentences imposed were appropriate given the nature of the crimes. The appeal was dismissed, and the sentences were upheld.

No further orders were made beyond the dismissal of the appeal and the affirmation of the original sentences.

Orders