R v Keane

[2019] NSWDC 941

District Court

New South Wales

Medium Neutral Citation:

R v Keane [2019] NSWDC 941

Hearing dates:

Trial: 3-12 June 2019;
Sentence: 20 September 2019

Decision date:

20 September 2019

Jurisdiction:

Criminal

Before:

King SC DCJ

Decision:

Convicted.

Special circumstances found –it being the offender’s first period in custody, he is in protective custody which is a little more onerous, & his father is in Scotland and in ill-health, suffering from Non-Hodgkin Lymphoma.

Sentenced to a term of imprisonment for 3 years and 6 months comprising of a NPP of 2 years commencing on 20 May 2019 and expiring on 19 May 2021, and a balance of term of 1 year and 6 months commencing on 20 May 2021 and expiring on 19 November 2022.

Catchwords:

CRIME - sexual intercourse without consent – sentence after guilty verdict in jury trial – offender continues to maintain innocence – abuse of duty of care towards workers and guests at hostel managed by offender – subjective matters

Legislation Cited:

Crimes Act 1900

Crimes Sentencing Procedure Act 1999

Category:

Sentence

Parties:

Regina
Sean Gary Keane

Representation:

Counsel:
Crown: Ms L McSpedden
Defence: Mr G Hoare
Solicitors:
Crown: Ms G Wasilewicz
Defence: Ms E Mason

File Number(s):

2017/00144179

Publication restriction:

Non-Publication order in respect of the name of the complainant and anything that might tend to identify her.

Judgment

1. Sean Gary Keane appears for sentence in respect of a single offence, being sexual intercourse without consent contrary to s 61I of the Crimes Act 1900. The maximum penalty provided is 14 years’ imprisonment, and there is a relevant standard non‑parole period of seven years’ imprisonment. I will take into account both the maximum provided and the standard non‑parole period - particularly in circumstances where this was a defended matter - as guidelines in relation to sentencing. The trial commenced on 3 June 2019 and the offender was found guilty by the jury on 12 June 2019.

2. The offence occurred on 14 May 2017, and he was arrested on that day and was in custody until 5 June 2017, when he was released. That is a period of 23 days, which I will take into account. At the conclusion of the trial on 12 June 2019, I refused bail and he has been in custody since that date solely in relation to this matter. I find beyond reasonable doubt the following matters as a result of the verdict by the jury on the evidence that was before them.

3. The offender was 29 years of age at the time, although he is now 31 years of age. The complainant, EB, was 19 years of age at the time of the offending. She was a French national on holiday in Australia who had arrived at the Port Macquarie Beachside Backpackers on 3 May 2017 and had been offered accommodation by the owner, referred to in the trial as “Nic”, in return for executing artwork on the interior of the hostel.

4. She had initially been accommodated in the tourist section of the hostel. There were separate staff quarters which led off from the common area. The offender was at the time managing the backpackers in the staffroom and there was also a bedroom occupied by an assistant manager, James Quinn. James Quinn was a friend of long standing of the offender, they having met in their childhood in Scotland.

5. Although, when present, the owner occupied a third bedroom in the staff quarters, in May 2019 he left to travel overseas and a female staff member, Lindsay Lyons, who was also a worker in the hostel, moved into his room. By the weekend of 13/14 May the complainant had commenced a sexual relationship with James Quinn and had moved into his room in the staff quarters which she shared with him.

6. Prior to that weekend, on Thursday or Friday, Quinn left to travel to Coffs Harbour for the weekend. During the day of 13 May 2017, the complainant spent time with a number of other persons, being variously either backpackers or persons working at the hostel in return for board.

7. After attending the beach, the group planned to go out that night for dinner. Before doing so, they drank alcohol at the hostel. The complainant had some alcohol while changing to go out in the staff area and the group continued their drinking in the common area of the hostel and then at an outside table. A number of them played a drinking game called, “beer pong”.

8. The complainant became very intoxicated to the point of falling asleep at the table. Her last memory was of being in the common room at about 8pm, and she did not recall sitting at the table outside or being put to bed at about 10 o’clock before the other young people went out to a nightclub as planned.

9. The complainant was so intoxicated that she was unable to walk to the staff quarters unassisted, and when being physically assisted to the staff quarters by others including the offender, she threw‑up on the floor of the common room and in the sink before being eventually put to bed in the room she occupied with Quinn. In view of her intoxication, a bucket was placed beside the bed and she was left with a bottle of water.

10. The group of young people having pre‑charged with alcohol left the complainant and the offender at the hostel. The complainant’s next recollection was waking up in the room occupied by her friend, Lindsay, in the south area. She was naked, as was the offender, who was on top of her. She stated that his penis was touching her vagina and he was trying to get inside. She had the feeling that they had had sex. She stated that at the time, she had a vaginal infection and that sex was uncomfortable, and that she felt that her vagina was a bit stretched, a feeling which she normally felt after having had penile vaginal intercourse.

11. She located her clothes on the floor and went out to the common room, looking for her friends and her phone. She obtained a computer from Quinn’s room and sent Facebook messages from about 1.30am to Quinn, to a female friend in France and also to Lindsay. These messages were tendered as relevant to complaint in the trial and were Exhibit 3. She finally located her mobile and left the premises and went to the police station to complain. Thereafter she was medically examined and gave an account to the doctor.

12. Expert evidence was adduced in the trial from a forensic pharmacologist, Tom Farrer, to the effect that prior to her vomiting at about 10pm, the complainant would have been “profoundly intoxicated”, with a blood alcohol level of about 3%, twice that of a high range PCA.

13. The offender was interviewed by police on 14 May 2017. He gave a very detailed account in which he outlined consensual sexual intercourse with the complainant, in which he described penile vaginal intercourse as well as cunnilingus or as referred to by him, “I went down on her briefly”. He gave evidence in the trial in which he in effect claimed that at the time that he was interviewed by the police, he was still affected by alcohol and somewhat confused, and that he had simply confessed to having consensual sexual intercourse because he felt that he may have done something rather than because he did.

14. His evidence in the interview, in the light of the details that he gave as to what had occurred between them by way of consensual intercourse, can be reasonably described as highly implausible and an insult to the general intelligence of the jury. I interpolate that the offender, having become aware of the lack of strong forensic evidence as to sexual intercourse, decided that he would totally change his story in order to try and obtain an acquittal.

15. James Quinn also gave evidence in the trial that the offender had told him later, as to his conduct with the complainant, that it was consensual and that she was, “flirty, flirty”.

16. The complainant in my view was an impressive witness, and I accept that the jury verdict is an acknowledgment that at the time of the offending, the complainant was in fact either unconscious or so affected that she was not able to remember the actual intercourse that preceded her becoming aware, and that she was in no fit state to consent and that the offender in the circumstances well knew that fact.

17. The offender took advantage of the complainant in circumstances where he well knew that she was not consenting. There is however no evidence of any physical violence. As for the duration of the offending, there is simply no evidence one way or the other as to how long it took place prior to her becoming aware of him naked on top of her. I accept that the offending falls below the midrange of objective seriousness but not at the lowest end of the range of objective seriousness.

18. I note that before the Court there is a Victim Impact Statement which indicates that the victim had arrived in Australia in February 2017 and had enjoyed her time in Australia up until the offending conduct. As a result of the offending conduct, she terminated her travels and returned to France.

19. She was then deeply sad, spending most of the time crying, and could not find a reason to live, but was seriously thinking of terminating her life. She considerably reduced her social interaction, and by July 2017, she commenced seeing a psychologist, eventually agreeing to weekly appointments with a nurse at the psychiatric wing and seeing a psychiatric doctor every two weeks. The offending conduct has affected her ability to relate to men, and she refers to having panic attacks and reacting adversely to males touching her.

20. Despite those sequelae she indicates in her Victim Impact Statement that although it had taken a lot of time to get better she was at the time of providing the Victim Impact Statement, “way happier”, and had fixed a lot of her issues. She stopped seeing the psychologist in December 2018 and returned to her university studies in September 2018. She indicates, however:

“Nevertheless what happened to me still follows me in my everyday life. My personal relationship with men has been very affected. It is complicated to trust a man. I’m often scared to be left with a man alone in the same room, to walk by myself when it’s dark or even to let a man touch any part of my body.”

21. As is well recognised, offending of this nature can have serious psychological consequences for a victim. That is the reason why a maximum penalty of 14 years’ imprisonment has been provided by the legislation. The matters raised by the complainant however, in her Victim Impact Statement, are entirely within in what might be regarded as the unfortunately expected ordinary consequences of offending of this nature and are already taken into account by the nature of the maximum penalty provided.

22. I am of the view that there are a number of aggravating factors which arise from s 21A(2) of the Crimes Sentencing Procedure Act. Firstly, the offence was committed in what was in effect the home of the victim, being her current residence as a boarder/employee. The offender was the acting manager in the absence of the owner who was overseas, and in my view had a responsibility to ensure that any boarder/employee was able to feel safe and protected within their ordinary accommodation, and indeed, I note that during the course of the offender’s evidence, he consistently referred to himself as owing a duty of care to the boarders and employees.

23. In my view, he abused that position. The victim was a 19 year old female tourist alone in a foreign country, and she was entitled to trust him as the manager of the hostel. She was also vulnerable at the time of the offending, because as was well‑known to the offender, she was significantly affected by alcohol.

24. As to mitigating factors, although the offender has had some difficulty in New South Wales and Victoria since arriving in Australia, I note that there is no offending recorded against him of a similar nature, and such difficulties as he has had, in my view are not relevant to the current sentencing for what is a serious offence.

25. As to subjective matters, before the Court is the offender’s criminal history as part of Exhibit 1 in New South Wales and Victoria. In the light of my previous comment, I do not intend to refer to the detail. In addition, there is a Sentencing Assessment Report under the hand of Wendy Dryden, Community Corrections officer, dated 12 September 2019, which has attached to it a New South Wales Department of Corrective Services Case Note Report under the hand of Aaron Mimmard, being a Psychological Report dated 11 September 2019.

26. Tendered on behalf of the offender is Exhibit K1, containing a Psychological Report from Patrick Sheehan, dated 10 September 2019, a letter to the Court from the offender, undated, a letter from a Dr Meiklejohn, dated 26 July 2019, being a consultant haematologist, the report relating to the offender’s father who is a resident in Scotland suffering from non‑Hodgkin’s lymphoma. It refers to the father’s condition as having been present for many years, and in being at the stage where they were running out of options and his clinical condition being precarious, requiring frequent admissions for treatment of infections. The report provides no information as to any prognosis in respect of further deterioration or life expectancy.

27. In addition, there is a letter from Erinn Keane, dated 9 September 2019, who married the offender on 3 July 2010 after a relationship which had been in existence for approximately five years. Having married, however, they separated in 2013, although they continued to have a friendship. Ms Keane continues to hold the offender in high regard and refers to his conduct in this matter as being a “completely uncharacteristic aberration”. I accept that that is her genuine opinion.

28. Further tendered on his behalf is a letter from A House with No Steps which indicates that between 1 July 2018 and 1 November 2018, he has donated a total of $175 to that organisation, being five separate instalments of the $35. In addition, there is an email from the offender’s father indicating that when he was first diagnosed with his condition, the offender had returned to Scotland and provided, “great comfort”, to his father. The offender returned to Australia when it appeared that the cancer was in remission.

29. I accept that since being charged in relation to this matter, the offender has been unable to return to Scotland, and his father was concerned that he may never see his son again, although, as I have indicated, there is no evidence before the Court as to Mr Keane Senior’s life expectancy.

30. In addition, there is a letter from Mark Chegwidden. Mr Chegwidden is the owner of the Crown and Anchor Hotel in Newcastle. The offender first commenced working for Mr Chegwidden after he had been charged in relation to this matter and disclosed the fact that he was charged with a sexual offence. He worked for him for most of the intervening period before trial and is regarded as a hardworking and reliable employee. Subjective matters are drawn from that material.

31. The offender is said to have had an unremarkable experience of education with normal literacy development, no behavioural problems and positive social adjustment as well as at least average academic performance. He completed the Year 11 equivalent, having been born in Dundee, Scotland.

32. After school, he entered an IT program at a local college which he completed before deciding to travel to Australia. He has not done any further study. He is said to have had a consistent history of employment almost exclusively in the hospitality industry, working as a barman, a barista and a bar manager in a number of short-lived roles, absent any lengthy periods of unemployment.

33. While in custody, since the conclusion of the trial he has been employed institutionally. He is said to have no identifiable problems with his early social development and to have always been gregarious and conversational and maintains friendship groups both in Scotland and Australia. As previously referred to, he married at the age of 22 and they separated at 25 but have not divorced, and there were no children of the relationship. His sexual development and attitudes appear to fall entirely within the normal range. He has used both alcohol and cannabis from the age of 15 or 16 years irregularly in the company of peers. He has experimented in the past with other illicit substances such as cocaine and MDMA in his late teens and early 20’s but it was never part of his regular behaviour.

34. At the time that he was working at the backpackers, his drinking escalated from drinking four or five nights per week after finishing his shift, consuming four drinks on average to a much more significant level, being two bottles of wine or more seven nights per week. It being as expressed to the psychologist and as he gave in evidence at trial that the object was to drink with the residents and as part of the culture of the backpackers to encourage drinking by way of drinking games.

35. He otherwise has an unremarkable health history, and there is no history of any symptoms in keeping with psychosis or psychiatric disorders. He was, having been admitted to prison, apparently threatened with stabbing and as a result, either as a result of his own request or because it was deemed appropriate by authorities, placed into protection. He is said to have been anxious and depressed but “this stress response could be seen as a reasonable reaction to his circumstances”. The psychologist noted:

“Mr Keane initially reported to police that he had engaged in consented sexual intercourse with the complainant but then later retracted this, saying that he had been confused at the time of the police interview...Mr Keane maintained that he did not have sexual relations with the complainant. He gave a detailed account of the events leading up to and during the night of the alleged offence...When asked why he had initially provided a detailed account of sexual intercourse to police he said, ‘I was freaking out. My mind was racing and I wanted to be co‑operative. I started questioning myself thinking maybe we did. I don’t know’.”

36. As noted by the psychologist, “his account is difficult to reconcile with the detailed responses provided in the police interview”. He has continued to deny committing the offence despite the finding by the jury that he did.

37. As to his risk of re‑offending, Mr Sheehan assessed him as being in the moderate to low or average risk category for sexual re‑offending. Ms Dryden in her report notes inter alia that he is an Australian resident but not an Australian citizen, and that he did not agree with what are referred to as the police facts. Further, that:

“He tended to minimise his offending behaviour by indicating that the victim had provided consent and he believes his behaviour was not illegal, merely morally wrong as the victim was his friend’s girlfriend...Mr Keane claimed that his level of intoxication caused him to have limited recollection of the circumstances leading up to the offence and his ability to be interviewed by police. However in contradiction, Mr Keane appeared to have a clear memory of his version of the circumstances of the offence and the victim providing consent.”

38. It appears that both Mr Sheehan and Ms Dryden have similar difficulties to that which the jury must have clearly had in the circumstances of his interview as contradicted by his evidence on oath.

39. As to any insight into the impact of his offending, he is said by Ms Dryden to have been “able to verbalise the effect his offending behaviour has had on his family and himself”. I note that in the circumstances of this matter, having been a defended trial and the content of the various reports, there is no evidence before the Court of remorse or contrition, even in the letter that the offender wrote to the Court between conviction and sentence. Although the offender purports to apologise to the Court for the time occupied and cost of the trial, he states:

“Whilst I do maintain my innocence in this matter I deeply regret my lack of perspective and level of intoxication that I displayed that evening. The consumption of the drugs and alcohol severely affected my judgment and consequently the recollection of events that I have of the evening.”

40. He does not express any understanding of the significance of his offending to the complainant or the effect that it may have had on her. His letter goes on to deal with the effect of his offending behaviour on his family, but in the circumstances of continuing to deny having committed any offence.

41. There can of course be no discount for the utility of a plea because there was no utility - or there is no utility in a defended matter, and I have already expressed my view that there is no acceptable evidence of remorse or contrition, the offender appearing to be only sorry for himself and his family, and not concerned with the effect of his conduct on the victim.

42. In the light of his continued denial of the offending the prospect of rehabilitation is indeed moot. His prospect of re‑offending was assessed as previously referred to by Mr Sheehan as moderate, low or average risk in respect of sexual re‑offending. Ms Dryden, in her report, stated that he had been assessed as a medium to low risk of re‑offending according to the Level of Service Inventory (revised). Her report goes on in relation to risk to state:

“Community Corrections has overridden the offender’s overall risk of re‑offending to medium because of Mr Keane’s assessment by the Community Corrections psychologist which has determined that he is well above average risk of re‑offence according to the Static‑99R and has recommended a medium level of supervision.”

43. The psychological report attached to the Sentence Assessment Report provides some further information in relation to the offender, that in the past there is some history of self‑harm by a cutting in the context of interpersonal difficulties some five years ago, and his apparently having attempted suicide by hanging in the context of relationship problems some ten years ago. Fortunately, apparently the branch snapped. That report refers to him in respect of the Static‑99R as, “placing him in the average risk range relative to other male sexual offenders”.

44. In the light of his age and the fact that he has no relevant past history of such offending it is my view that despite the assessments provided to the Court he can be reasonably regarded as having a medium to low risk of re‑offending of this nature.

45. I have taken all of the matters that I have referred to into account. There is in relation to offending of this nature a strong need for the sentence imposed to provide both specific deterrence and general deterrence. I have given consideration to the cases that have been tendered by Mr Hoare on behalf of the offender. They are of some general relevance but, as noted by Mr Hoare, individual cases turn on their own individual facts.

46. I have also accessed the statistics as available through JIRS noting of course as has frequently been said that they are a blunt, or a very blunt tool. They nonetheless have some relevance and utility, particularly now that it is possible to draw down through the individual statistics to actual reported cases whether at first instance or on appeal, and I have done that.

47. Taking all of those matters into account, I note that at the conclusion of the trial I convicted the offender, and I now will impose the sentence. Mr Keane, would you please stand? Thank you.

48. You are sentenced to a term of imprisonment with a non‑parole period of two years and a balance of term of one year and six months. The sentence will be backdated from the fact that I refused bail on 12 June 2019 by 23 days to take into account the period of custody from your initial arrest to release.

49. Accordingly, the sentence commences on 20 May 2019. You will be first eligible for parole on 19 May 2021. The total sentence, which is one of three years and six months, will expire on 19 November 2022.

50. I have varied the statutory relationship between the non‑parole period and the balance of term by reducing the non‑parole period by a period of seven and a half months, as this is your first time in custody, and noting your father’s ill health and that you have had to serve at least some time to date while in protection.

51. I note there is no specific evidence before me as to protection having been a particularly onerous way of serving a sentence whether on remand or not, but I accept that prisoners on remand or serving a sentence who are in protection have a more limited access than the general population and indeed usually more time in the cell than for a prisoner in the general population.

52. I note however there is no evidence before me as to whether you will continue in protection or whether it is a matter of you simply being able to elect to be removed from protection. The evidence is also entirely unclear as to whether you are actually still in protection, but I accept that you have been in protection for some time while in custody since you were bail refused.

Thank you, sit down.

Now is there any significant error or omission?

MCSPEDDEN: No, your Honour.

HOARE: No, your Honour.

HIS HONOUR: All right. Then I will adjourn.

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Decision last updated: 18 September 2020