R v Keen

Case [2004] NSWCCA 86 15 April 2004

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CITATION: R v Keen [2004] NSWCCA 86

HEARING DATE(S): 8 March 2004

JUDGMENT DATE:
15 April 2004

JUDGMENT 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), s44

CASES 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 383

PARTIES :
Crown - Respondent
Dane Keen - Applicant

FILE NUMBER(S): CCA 60406/03

COUNSEL: B Knox SC - Crown
FP Thraves - Applicant

SOLICITORS: 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

SULLY J
SIMPSON J
SPERLING J
Thursday 15 April 2004

REGINA v Dane KEEN

Judgment

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…

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 Keen

Details

AGLC: R v Keen [2004] NSWCCA 86
Case: [2004] NSWCCA 86
Decision Date: 15 April 2004

CaseChat Overview and Summary

In this case, the appellant, Keen, appealed against the severity of his sentences for various criminal offences. Keen, together with two co-offenders, pleaded guilty to a robbery committed in company while armed with an offensive weapon, as well as to driving a conveyance without the consent of the owner. The Crown accepted the plea of guilty to these offences and agreed to a plea bargain regarding the other charges. The court sentenced the appellant to six years imprisonment for the robbery and two years for the driving offence, to be served concurrently, and ordered him to pay compensation to the victims. The appellant was also ordered to pay costs.

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.

Orders