THOMAS JA: The applicant was convicted of seven counts of armed robbery, two of attempted armed robbery, one of unlawful use of a motor vehicle with a circumstance of aggravation, one of common assault and one of fraud and one of fraud to the value of $5,000 or more. All offences except the last mentioned were committed over a nine-day period in May and June 2000.

Sentences of eight years were imposed with respect to the robbery and attempted robbery counts and shorter terms on the others. A declaration was made "that the applicant is a serious violent offender". The main grounds on which the application is brought are that the declaration should not have been made and alternatively that, if made, the head sentence was too high.

A further ground was added during the appeal, namely that the learned sentencing Judge failed to take into account eight months in custody for an offence committed on 26 May 2000.

I shall deal with the main grounds firstly.

At the time of commission of the offences the applicant was a 23 year old transsexual with a serious heroin addiction. The nine offences involving robbery or attempted robbery have the common feature that the applicant was armed with a syringe apparently filled with blood. All the targets were small businesses such as florists, newsagencies or pharmacies in which one person was working alone. Most of the victims were relatively young females.

No actual physical violence was used short of producing the syringe and waving it about. However, threatening words were used on various occasions including, "Open the till and give me all your money,"; "It's not worth dying over,"; "Bitch, don't go pressing anything,"; "Don't press any buttons," and so on. On some occasions he said he did not want to hurt the attendant but such a statement in those circumstances could be regarded as a menacing statement.

The attempted robberies appear to be instances in which the attendant succeeded in pressing an alarm button upon which the applicant left the premises without obtaining money. The amount taken on each of the seven robberies was relatively small and the total comes to around $3,000. With respect to that fact the learned sentencing Judge aptly remarked, "Nine robberies or attempted robberies with a blood filled syringe leaves a trail of human misery that far outweighs any concern for dollars and cents." His Honour added that there could hardly be anything more dreadful than to be threatened with a blood filled syringe with the possible consequences of a fatal disease.

The applicant has a fairly lengthy criminal history consistent with his heroin addiction. Apart from drug offences it includes offences of soliciting for the purposes of prostitution and three separate convictions for possession of a knife in a public place.

Before turning to the essential point…

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 R v Keating

Details

AGLC: R v Keating [2002] QCA 19
Case: [2002] QCA 19
Decision Date: 06/02/2002

CaseChat Overview and Summary

In the case of R v Keating, the applicant, Shannon Richard Keating, appealed against his sentences following his conviction for multiple offences including armed robbery, attempted armed robbery, unlawful use of a motor vehicle, common assault, and fraud. The Court of Appeal, consisting of McPherson J, Thomas JA, and Ambrose JA, considered the appeal and made several findings and orders. The key legal issues in this case were whether the declaration that the applicant was a serious violent offender should have been made, and if so, whether the head sentence was appropriate. Additionally, the court addressed the failure to consider the applicant's prior eight-month custody for an offence committed during the same period.

The Court of Appeal held that while armed robbery cases do not fall into any special category for the exercise of the discretion to declare a person a serious violent offender, the discretion to make such a declaration is indeed unfettered. The court found that the declaration should have been made in relation to specific convictions rather than as a general declaration of status. Moreover, the court noted that the applicant's prior eight-month custody should have been taken into account during sentencing, which would have resulted in a six-month reduction in the operative sentence.

Ultimately, the Court of Appeal granted leave to appeal against the sentence and varied the sentences in respect of specific counts from eight years to seven and a half years. The court also declared the convictions on those counts to be convictions of serious offences. In all other respects, the court confirmed the sentences.

Orders