Queen v Keen, P.J.

[1993] FCA 857

857 93 I

JUDGMENT No. .,........ ,......, I ........ ,... i

C A T C H W O R D S

CRIMINAL LAW - Appeals and New Trials - Crown appeal against sentence - offences against the person by person with long criminal record but no history of violence - whether sentence manifestly inadequate - proper role of prosecution appeals.

-

R v. P (1992) 39 FCR 276 at 283

R v. [l9771 V. R. 225

Griffith v. R (1977) 137 CLR 393

- R v. Osenkowski 5 A Crim R 394

- R v. Tait & Bartley 24 ALR 473

THE OUEEN V. PHILLIP JOHN KEEN
No. AG 84 of 1993

SPENDER, BURCHETT and HIGGINS JJ

CANBERRA

27 October 1993

IN THE FEDERAL COURT OF AUSTRALIA	1
AUSTRALIAN CAPITAL TERRITORY	) No. AGO4 of 1993
DISTRICT REGISTRY	)
GENERAL DIVISION	j

BETWEEN:  THE OUEEN Appellant

AND :  PHILLIP JOHN KEEN
Respondent

MINUTES OF ORDER

JUDGES MAKING ORDER:	Spender, Burchett and Higgins JJ
DATE OF ORDER:	27 October 1993
WHERE MADE:	Canberra
THE COURT ORDERS THAT:

The appeals be dismissed.

I	NOTE:	Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
I

I

IN THE FEDERAL COURT OF AUSTRALIA	)
AUSTRALIAN CAPITAL TERRITORY	) No. AG84 of 1993
DISTRICT REGISTRY	1
GENERAL DIVISION	1

BETWEEN :  THE QUEEN Appellant

AND :  PHILLIP JOHN KEEN

L.'

Respondent	I
I ,

CORAM:	Spender, Burchett and Higgins JJ
PLACE :	Canberra

m: 27 October 1993

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J (delivering the first judgment by invitation of

Spender J) :

This is a Crown appeal against sentence. That means that the considerations which are referred to in R v. P (1992) 39 FCR 276 at 283 are applicable to restrain the Court's intervention unless the learned sentencing judge "was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing

allow for the right of a sentencing judge to exercise mercy, and	some salient feature of the evidence". The appellate court must
should not interfere unless the sentence is significantly disproportionate to the seriousness of the crime. As Brennan, Deane and Gallop JJ put it in R v. Tait and Bartlev (1979) 24 ALR 473 at 476:

"Although an error affecting the sentence must appear before the appellate court will intervene in an appeal either by the Crown or by a defendant, a Crown appeal raises considerations which are not present in an appeal by a defendant seeking a reduction in his sentence. Crown appeals have been described as cutting across 'time-honoured concepts of criminal administration' (per Barwick CJ, Peel v. R (1971) 125 CLR 447 at 452; [l9721 ALR 231 at 233). A Crown appeal puts in jeopardy 'the vested interest that a man has to the freedom which is his, subject to the sentence of the primary tribunal' (per Isaacs J, Whittaker v. R, (1928) 41 CLR 230 at 248). The freedom beyond the sentence imposed is, for the second time, in jeopardy on a Crown appeal against sentence. It was first in jeopardy before the sentencing court."

The respondent's father was "a violent alcoholic who took little interest in Phillip or his elder brother", according to Bega District Probation Service reports. He does, according to the same source, attempt to maintain contact with his mother and brothers.

The respondent's criminal record seems to bear out his claim, as reported in the antecedents report, that "this had been the first time he had committed offences against the person, as all his prior offences had been theft related." He has been a drug user most of his life - pot, heroin, alcohol and Rohypnol tablets. On arrest on this occasion, he was examined by a

medical practitioner and deemed unfit for interview. (Rohypnol	is one of the benzodiazepine group of drugs - a potent hypnotic
which is addictive, overdoses of which cause drowsiness and respiratory depression.)
It seems plain that either the respondent is a very ineffective person or he was in a state of reduced effectiveness, because everything he did on the night of the offences seems to have been quitemisdirected. Those offences, to which he pleaded guilty, included two offences of armed robbery and one of attempted armed robbery, involving separate actions on the one day. There was also an offence of recklessly inflicting grievous bodily harm on another; there were two of fences of attempting to enter premises as a trespasser with intent to steal; and there was one offence of taking and using a motor vehicle. These also were committed on the same day.

M r Keen has had little education, his secondary schooling

having been completely disrupted by his being in and out of institutions and by lack of interest. He is of average intelligence, but his literacy is not above sixth class primary school standard. His Honour said: "I do not think I have ever seen before me a person who is as institutionalised as this young

man." In this sense, it is an extraordinarily bad record.

The statement of facts indicates that, at 5.15 am on 27
February 1993, the respondent went to Mount Ainslie lookout with

a girl. During the night, he had had some alcohol and some

cigarettes, he opened the front passenger's door, brandishing a	Rohypnol tablets. At the lookout, he saw a car with three persons asleep in it. With a view to obtaining money for some
carving knife, and screamed: "Give me your money. I'm a junkie, and I need a shot." Some sort of a melee ensued in which a Mr Sirivej, who was in the back seat, suffered a cut to his hand while attempting to grab the arm of the respondent that was holding the knife. Then the woman in the driver's seat of the car managed to start it and drive off, dragging the respondent some 10 to 15 metres along the road before he fell and she drove off at speed. Nothing was taken except a make-up bag.
The respondent then drove to the Civic area, where he stole a car by forcing the ignition. Still seeking cigarettes, he drove to the Watson shops, where he tried to force entry to two different shops, being disturbed at one and unsuccessful at the other. He was arrested in the early evening of the same day when, upon examination by a doctor, he was deemed unfit for interview, as I have already said.
The injury done to M r Sirivej was a cut on the back of the right hand, involving tendons. The tendons were repaired, and the plastic and reconstructive surgeon's report states: "I would expect a full recovery of function in the long term."
Psychiatric and psychological evidence placed before the judge presents a dismal picture. Twenty-five years of age, the respondent has been from one institution to another since the age
and no satisfactory substitute father figure appears to have community. His drunkard father had no proper influence over him, of twelve, and seems to have no role models outside the criminal
emerged during his formative years. He expects to spend much of his life in prison, where his friends are. He uses habitually a substantial range of illegal drugs, including heroin.
The offences were committed while the respondent was on probation. The effect of this is stated succinctly in R v. Gray [l9771 V.R. 225 at 229. They were plainly associated with drug addiction, a factor which is not generally to be regarded as mitigating serious crime, but simply cannot be left out of account in evaluating the circumstances: Talbot (1992) 59 A Crim
R 383 at 388.
In his favour, it may be said that the respondent's prior record does not include crimes of violence. The description of the incidents which have led to the present convictions is not necessarily inconsistent with that record. Although he brandished a knife and uttered threats, it is not at all clear that he intended to use the knife, and the cut inflicted by it may have been, in a sense, accidental, although of course it was entirely predictable that such an event might occur. The respondent was quite possibly not in a fit condition to evaluate risks, and his whole course of behaviour was not only criminal but also quite inept. At least, there is nothing to show a disposition to inflict deliberate injury. That may be some starting point, if only he can find the motivation to set about his own rehabilitation. The learned trial judge thought it was a case for mercy, in the hope that he might come to appreciate
his personal plight and respond to the opportunity.
The learned sentencing judge imposed concurrent sentences of three years of imprisonment in respect of the offences of attempted robbery and robbery, and six months in respect of each of the other offences. A non parole period of 18 months was fixed. An appreciation of the effect of what his Honour ordered requires it to be remembered that the respondent had been in custody for exactly six months at the time he was sentenced. Two years of custody are, therefore, involved.
In my opinion, his Honour did not err in the exercise of his sentencing discretion, and I would dismiss the Crown's appeal.
SPENDER J:

I agree with the reasons of Burchett J. I wish to add only

a little, As the trial judge recognised, these were serious offences committed by a person with a very lengthy criminal history for dishonesty and property offences. The sentencing remarks show that the primary judge was fully aware of the factors on which Mr Crispin QC, senior counsel for the Crown, relies in these appeals. No wrong principle is specifically identified by the Crown's submission as affecting the sentencing, nor is it suggested that his Honour misunderstood or wrongly assessed some salient feature'of the evidence. The Crown says, however, that the sentences fail to reflect proper standards and were so lenient as to "shock the public conscience", citing the

phrase of King CJ in R v. Osenkowski (1982) 5 A Crim R 394 at that page. The passage in the judgment of King CJ in which that phrase

appears is apposite to this appeal. His Honour said at 394:

"It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge's sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender's life might lead to reform. The proper role for prosecution appeals in my view, is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crime to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience."

The Crown also submitted on the appeal that the sentences were so inadequate as to "be indicative of error or departure from principle" referring to the observations of Barwick CJ in Griffiths v. R (1937) CLR 393 at 310.

A schedule of sentences in the Supreme Court of the ACT for offences of armed robbery from September 1992 to September 1993, which was put before this Court, reflect the sentencing judge's very extensive experience in the sentencing of offenders for

armed robbery. The fact of the matter is that the sentencing judge faced a very difficult task. His Honour described the difficulty of sentencing Mr Keen in these circumstances in the

following terms:
"His record with courts is disgusting.	He has shown no

respect for court leniency which has been extended to him. Efforts to rehabilitate him by getting him to go to rehabilitation facilities, such as Karralika and Odyssey House [failed]. He has been assessed as not

suitable for drugs of dependence treatment. I just do

not know what is going to become of him. I think I am going to have to structure a sentence which will really cast the rehabilitation onto adult corrective services, put him under their supervision on probation for a substantial period in the hope that he will come to his senses, serve the sentence that I am about to impose, come to his senses and realise that if he does not learn some social skills and take advantage of all the frantic efforts that are being made to keep him out of trouble and out of gaol, then gaol is just going to be the place where he is always going to be

for the rest of his life. It is up to him."

The sentences imposed by Gallop J were, in my respectful view, a sensitive attempt to break the circuit of institutionalisation and criminality which have thus far dogged the respondent's life. In my opinion the sentencing discretion did not miscarry and I also would dismiss the appeals.

HIGGINS J:

I agree with the reasons expressed and the conclusion

reached by Burchett J and Spender J and I have nothing further

to add. I would also dismiss the appeal.

SPENDER J:

The order of the court is that the appeals are dismissed.

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of the members of the Court.

Associate: 

Date: 27 October 1993

Counsel for the appellant:	Mr K. J. Crispin Q.C. with
Mr K. Archer
instructed by:	Director of Public Prosecutions
Counsel for the respondent:	Mr R. Livingston
instructed by:	Legal Aid Office (A.C.T.)
Date of Hearing:	27 October 1993