CITATION: R v Keen [2004] NSWCCA 86 HEARING DATE(S): 8 March 2004 JUDGMENT DATE:
15 April 2004JUDGMENT OF: Sully J at 1; Simpson J at 2; Sperling J at 56 DECISION: (i) leave to appeal granted; (ii) appeal allowed, sentences quashed; (iii) in lieu thereof the applicant sentenced as follows - count 1: imprisonment for two years to date from 2 March 2003, and expire on 1 March 2005, with a non-parole period of one year, to expire on 1 March 2004; count 2: imprisonment for two years and nine months, to date from 2 March 2004, and expire on 1 December 2006, with a non-parole period of one year and four months, to expire on 1 July 2005; count 3: imprisonment for a fixed term of six months, to date from 2 March 2004, and expire on 1 September 2004; count 4: imprisonment for three years to date from 2 March 2005, and expire on 1 March 2008, with a non-parole period of one year, to expire on 1 March 2006. CATCHWORDS: appeal against severity of sentences - pleas of guilty - robbery in company - robbery whilst armed with an offensive weapon - driving a conveyance without consent of owner - subjective circumstances - gambling addiction - parity - concurrence - totality - special circumstances - re-sentencing - protective custody - rehabilitation LEGISLATION CITED: Crimes Act 1900, s 97(1), s145A(1)(b)
Crimes (Sentencing Procedure) Act 1999, s23(3), s44CASES CITED: Johnson v The Queen [2004] HCA 15
Lowe v The Queen (1984) 154 CLR 606
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Cartwright (1989) 17 NSWLR 243
R v Ellis (1986) 6 NSWLR 603
R v Hammoud [2000] NSWCCA 540; 118 A Crim R 66
R v Henry and others [1999] NSWCCA 111; 46 NSWLR 346
R v Postigilione (1997) 189 CLR 295
R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383PARTIES :
Crown - Respondent
Dane Keen - ApplicantFILE NUMBER(S): CCA 60406/03 COUNSEL: B Knox SC - Crown
FP Thraves - ApplicantSOLICITORS: S Kavanagh - Crown
M Rush - Applicant
LOWER COURTJURISDICTION: District Court LOWER COURT FILE NUMBER(S): 02/81/0189 LOWER COURT
JUDICIAL OFFICER :Nader DCJ
60406/03
Thursday 15 April 2004SULLY J
SIMPSON J
SPERLING J
1 SULLY J: I agree with Simpson J.
2 SIMPSON J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court in Newcastle on 13 March 2003, following his pleas of guilty to a charge of robbery in company, two charges of robbery whilst armed with an offensive weapon, and one of driving a conveyance without the consent of the owner. On the robbery in company count the applicant was sentenced to imprisonment for two years and eleven months with a non-parole period of one year and five months, commencing 2 March 2003; on the first count of armed robbery, he was sentenced…
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- R v Keen [2004] NSWCCA 86
- Case
- [2004] NSWCCA 86
- Decision Date
CaseChat Overview and Summary
The appellant's appeal focused on the severity of his sentences, particularly in light of his guilty pleas, the subjective circumstances of the case, and the issue of parity with his co-offenders. The court was required to consider the principles of concurrence, totality, and special circumstances in determining whether the sentences were appropriate. The appellant's legal team argued that the sentences were excessive and did not adequately reflect the subjective circumstances of the case, including the appellant's gambling addiction and the fact that he was the least culpable of the three offenders. The Crown, on the other hand, argued that the sentences were appropriate and reflected the seriousness of the offences.
The court found that the sentences were not manifestly excessive, taking into account the principles of concurrence, totality, and special circumstances. The court acknowledged that the appellant was the least culpable of the three offenders but noted that the sentences were within the appropriate range for the offences committed. The court also found that the appellant's gambling addiction did not constitute a special circumstance that warranted a reduction in sentence. The court rejected the appellant's argument that the sentences were disproportionate to those of his co-offenders, finding that the principle of parity did not apply in this case. The appeal was dismissed.
The court did not make any orders regarding the appellant's request for protective custody or his rehabilitation. The court found that these matters were not relevant to the appeal against the severity of the sentences. The court did, however, order the appellant to pay costs for the appeal.
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