Keene v The King - [2023] VSCA 143

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0056

CHRISTOPHER DOUGLAS KEENE	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	5 June 2023
DATE OF JUDGMENT:	13 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 143
JUDGMENT APPEALED FROM:	DPP v Keene (County Court, Judge Mullaly, 14 March 2023)

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CRIMINAL LAW – Leave to appeal – Sentence – Applicant sentenced to imprisonment on multiple charges including breaching community corrections order (‘CCO’) – Whether sentence for breaching CCO manifestly excessive – Degree of compression means mathematical proportions have less if any significance – Contravention offences deserving of term of imprisonment – 1 month’s cumulation amply justified – Leave to appeal refused.

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Counsel
Applicant:		Mr DN McGlone
Respondent:		Mr DA Glynn
Solicitors
Applicant:	Angus Cameron Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
NIALL JA
TAYLOR JA:

On 10 December 2020, the applicant was sentenced by a judge of the County Court following his plea of guilty to a number of charges across two indictments.
The first indictment contained four charges relating to serious violent offending against the applicant’s then domestic partner.[1] The applicant had grabbed the complainant around the throat, threw her to the ground and threatened to kill her. He then drove the complainant by car along the Bellarine Highway at reckless speed, and assaulted and threatened her. The charges were: recklessly causing injury,[2] making a threat to kill,[3] false imprisonment[4] and reckless conduct endangering life.[5]
[1]The applicant also faced a summary charge of driving whilst disqualified.
[2]Crimes Act1958, s 18.
[3]Ibid s 20.
[4]A common law offence.
[5]Crimes Act 1958, s 22.
The second indictment alleged an attempt to pervert the course of justice by having the complainant withdraw her allegations. In addition the applicant persistently breached an intervention order that was put in place to protect the complainant.
Following his arrest on the charges contained on the first indictment the applicant was remanded in custody. It took the prosecution a long time, and a number of attempts, to bring forward the charges on the second indictment. As things transpired the applicant pleaded guilty to all charges and by the time he was sentenced, the applicant had served 700 days of pre-sentence detention.
In what the judge described as a merciful sentence, the applicant was sentenced to 22 months’ imprisonment (in effect time served) and a community corrections order (‘CCO’).[6]
[6]DPP v Keene (County Court, Judge Mullaly, 10 December 2020).
Notwithstanding the judge’s strong warning that non-compliance with the CCO would be a very serious matter, the applicant breached the CCO in two ways. First, he breached a treatment condition by failing to undergo treatment on two occasions together with 13 instances of failing to be supervised, monitored and managed as directed. Second, he committed an assault and theft-related offences for which he was sentenced to 7 months’ imprisonment in the Magistrates’ Court. As a result of…

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 Keene v The King

Details

AGLC: Keene v The King [2023] VSCA 143
Case: [2023] VSCA 143
Decision Date: 13 June 2023

CaseChat Overview and Summary

Keene appealed against his sentence, which included imprisonment for breaching a community corrections order. The court was tasked with determining whether the sentence was manifestly excessive and whether the degree of compression meant that the mathematical proportions of the sentence had less or no significance. The court also needed to consider whether the contravention offences deserved a term of imprisonment and whether the one-month cumulation was justified.

The court found that the degree of compression meant that the mathematical proportions of the sentence had less if any significance. The court held that the contravention offences deserved a term of imprisonment and that the one-month cumulation was amply justified. The court concluded that the sentence was not manifestly excessive and refused the applicant leave to appeal.

The court did not find the sentence to be manifestly excessive and therefore refused the applicant leave to appeal. The court's reasoning was that the degree of compression meant that the mathematical proportions of the sentence had less if any significance. The court held that the contravention offences deserved a term of imprisonment and that the one-month cumulation was amply justified.

Orders