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:

1. 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.

2. 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.

3. 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.

4. 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.

5. 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).

6. 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 these breaches he was charged with two charges of contravening a CCO.

7. Consequently, the applicant fell to be resentenced on the two indictments and also sentenced for the two offences of breaching the CCO. In summary:

   (a)on the first indictment he was resentenced to an aggregate term of 27 months’ imprisonment;

   (b)on the second indictment he was resentenced to an aggregate term of 18 months’ imprisonment; and

   (c)he was sentenced to 2 months’ imprisonment on each charge of breaching the CCO.

8. Of the sentences imposed for the breach of CCO, 1 month was made cumulative (on what was identified as ‘charge 8’) and the other was made fully concurrent.

9. After providing for cumulation, the total effective sentence imposed was 2 years and 9 months’ imprisonment with a non-parole period of 2 years and 3 months. It follows that of the total effective sentence, 1 month was attributable to charge 8, being a contravention of the CCO.

Ground of Appeal

1. The applicant seeks leave to appeal on a single ground that the sentence imposed in relation to charge 8 is manifestly excessive. To be clear, the grounds of appeal are confined to the sentence of 2 months’ imprisonment on the charge of breaching the CCO of which 1 month was ordered to be cumulative on the base sentence. We note that the maximum prescribed penalty for breach of a CCO is 3 months’ imprisonment.

2. The applicant submits that the sentence of 2 months is manifestly excessive in that:

   (a)the applicant pleaded guilty at the earliest opportunity;

   (b)‘The breach itself is the cause of the primary imprisonment sentences in relation to the other charges’;

   (c)there were no aggravating features;

   (d)‘The sentence does not reflect the actual engagement and progress the applicant completed on the CCO prior to the breach’; and

   (e)the applicant has one prior conviction for breaching a CCO, although the applicant acknowledges that he had three prior maters for breach of an intensive corrections order and one past breach of a suspended sentence.

3. The applicant notes that the sentence imposed was 66 per cent of the maximum and the judge failed to take into account the full weight of the plea, existing compliance and the effect of the pandemic.[7]

   [7]Citing Worboyes v The Queen [2021] VSCA 169.

Decision

1. Leave to appeal must be refused.

2. The applicant has an appalling criminal record. It must be acknowledged that he had a shocking childhood and was the victim of significant physical abuse and neglect. The original sentence was rightly described by the judge as merciful. In our view, having reviewed the facts in relation to that earlier offending, the sentence was remarkably lenient.

3. Given the applicant’s sorry history, there was always a real chance that he would breach the CCO imposed. His own shortcomings, many of which are attributable to matters outside his control, make it difficult for him to remain free of criminal behaviour. Nevertheless, the judge afforded the applicant an opportunity which he failed to grasp. In brief reasons, the judge said that the applicant did not cooperate with the Corrections officers in any realistic way and that the CCO was ‘a waste of time’.[8]

   [8]DPP v Keene (County Court, Judge Mullaly, 14 March 2023), [2].

4. It is plain from the reasons and the result that the judge regarded the breach as relatively serious. The breach called for a degree of specific deterrence and general deterrence remained important.

5. Mathematically, the sentence represented 66 per cent of the maximum, which, on a plea of guilty, may at first blush seem high, but mathematics does not make good the applicant’s proposed ground. The maximum is 3 months’ imprisonment and it is to be expected that there will be a degree of compression that means that mathematical proportions have less if any significance.

6. It cannot be doubted, in our view, that the contravention offences were deserving of a term of imprisonment and the 1 month’s cumulation was amply justified. It follows that we are left unpersuaded that the sentence of 2 months’ imprisonment, with 1 month to be cumulated is outside the permissible range and therefore the application for leave to appeal must be refused.

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