R v Keenan
[2014] ACTSC 342
•3 December 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Keenan |
Citation: | [2014] ACTSC 342 |
Hearing Dates: | 23 – 25 September, 10 November 2014 |
DecisionDate: | 3 December 2014 |
Before: | Burns J |
Decision: | The offender is convicted for the offence of aggravated robbery. The offender is sentenced to 9 years’ imprisonment commencing 29 August 2013 and expiring 28 August 2022. A non-parole period of 6 years is imposed, commencing 29 August 2013 and expiring 28 August 2019. |
Category: | Sentence |
Catchwords: | CRIMINAL LAW – Sentence – Property Offences – Offences Against the Person – aggravated burglary – in possession of offensive weapon |
Cases Cited: | R v Auld (ACTSC, 12 October 2012, Penfold J, unreported) R v Austen (ACTSC, 7 February 2013, Penfold J, unreported) |
Parties: | R (Crown) Dylan Elias Keenan (Offender) |
Representation: | Counsel Mr Sahu-Khan (Crown) Mr Livngston (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 202 of 2013 |
Burns J:
The offence
Dylan Keenan, on 25 September this year, you were convicted by a jury after trial of one offence of aggravated robbery committed on the 19 August 2013. This offence carries a maximum penalty of 25 years’ imprisonment.
Just before 6.00 am on the 19 August 2013, you drove your red Nissan Pulsar hatchback on Perry Drive, Chapman with its headlights off and parked in the car park of the Chapman Primary School, which is about 200 metres from the Chapman shops.
You had with you a sawn-off .22 rifle with ammunition. The evidence does not allow me to be satisfied beyond reasonable doubt that the rifle was loaded at the time of this offence, but I am satisfied that you had live ammunition with you which was capable of being discharged by the rifle. You also had a balaclava which you used to cover your head and face during the robbery.
At that time of the morning the Chapman IGA Supermarket was not open to customers but there were two staff members in the store preparing for the day’s trading.
You entered the store through an open sliding door in the loading dock at the rear. You immediately confronted one of the staff members, Geoffrey Sharpe, who had unsuccessfully tried to deny you entry to the store by closing the loading dock sliding door. You were wearing the balaclava and carrying the sawn-off rifle. You pointed the rifle at Mr Sharpe’s face and then approached him and punched him once to the face with a closed fist, causing him to lose consciousness momentarily and fall to the ground.
You then walked out of the loading dock and found the other employee, Mr Triandafillou and threatened him with the rifle. You then stole a sum of money, which I understand to be approximately $1,500.00, from two cash register drawers before fleeing the store in the direction of the Chapman Primary School. I am satisfied that you then left the area in your car.
At some point you dropped a bullet outside the sliding doors to the loading dock of the supermarket. This was subsequently located by police. You also dropped or discarded your balaclava in the area of the car park of the Chapman Primary School. This was also located by police and subjected to DNA analysis which provided extremely strong support for the proposition that it was your DNA on the balaclava. At the time of these events you were living in Cooma in New South Wales.
On 28 August 2013, a search warrant was executed on your residence and the shortened .22 calibre rifle was located in those premises, together with ammunition identical to the bullet located by police adjacent to the loading dock sliding door after the robbery. Clothing was also located which linked you to the robbery.
In my opinion, this offence is a very serious example of this type of offending. You used a genuine firearm in the commission of the offence which was capable of being discharged and you had with you live ammunition for that firearm when you committed the offence.
Your assault upon Mr Sharpe was gratuitous and brutal, and undoubtedly for the purpose of disabling him so as to allow you to deal with the other staff member unhindered by Mr Sharpe. I have no doubt that, in assaulting Mr Sharpe as you did, you also intended to cause fear in other members of staff present in the store so as to ensure that they did your bidding.
Offender characteristics
You have a very significant criminal history which I will not set out in full, however I will briefly summarise the relevant convictions:
(a)in November 2004 you were convicted in this Court of two counts of armed robbery and sentenced to six years’ imprisonment with a non-parole period of four years;
(b)on 11 March 2011, you were convicted in the Goulburn District Court of one offence of robbery and sentenced to three years and four months’ imprisonment with a non-parole period of one year and 10 months;
(c)on 11 January 1996 when you were 14 years old you were convicted in the Children’s Court of an offence of robbery and placed on probation for a period of 12 months; and
(d)you have numerous convictions for offences of dishonesty and, to a lesser extent, violence.
Your criminal history not only disentitles you to any leniency in the current proceedings. It also reveals that the present offence manifests a continuing attitude of disobedience to the law on your part.
After the jury convicted you of this offence I ordered a Pre-Sentence Report to be prepared to assist in sentencing. Unfortunately, you were unwilling to participate in the preparation of this Report and as such no useful Report was placed before me.
I was told by your counsel that you have become institutionalised by the long periods that you have spent in custody, and you struggle when released into the community. He said that your father died when you were 18, possibly as a result of suicide. You have no continuing contact with your mother and very little family support.
Relevant case law
During the sentence hearing I was provided with a number of decisions of judges of this Court when sentencing for similar offences. I reviewed a number of those decisions in my sentencing remarks in R v Zocchi (ACTSC, 24 February 2012, Burns J, unreported)but I will briefly refer to them again and to some further decisions that were drawn to my attention.
In the matter of R v Zocchi (ACTSC, 24 February 2012, Burns J, unreported), the offender approached his victim in a public place and punched him in the face, produced a replica handgun and demanded money. The victim gave the offender $480.00. The offender pleaded guilty to robbery but not to being armed and was found guilty of the more serious offence after trial. He was 54 years old with a lengthy criminal history involving previous robberies and a history of drug and alcohol dependence. He was sentenced to six years and six months’ imprisonment with a non-parole period of four years.
In the matter of the R v Van Hala (ACTSC, 18 August 2010, Nield AJ, unreported), the offender was sentenced to four years’ imprisonment for an offence of aggravated robbery. He was 31 years old at the time of the sentencing and had a long history of alcohol abuse and abuse of other drugs. He was armed with a knife when he demanded money from an employee of a restaurant. He pleaded guilty in the Magistrates Court and received a discount of 20 percent on account of his guilty plea. At the time he committed the offence he was on a bond for another offence. He received $535.00 from the robbery.
In the matter of the R v Robertson [2010] ACTCA 19, the Court of Appeal dismissed an appeal by the Director of Public Prosecutions against a sentence imposed on the offender for an offence of aggravated robbery. Robertson had been sentenced to two years’ and six months’ imprisonment suspended after serving six months’ full time imprisonment. The offence involved robbery of a service station attendant using a replica pistol. He received $600.00 from the robbery. Robertson made full admissions to the police and pleaded guilty to the offence. He had no prior convictions.
In the matter of the R v Burridge (ACTSC, 3 March 2010, Gray J, unreported), the offender pleaded guilty to a charge of aggravated robbery of a club. He was an employee of the club and used his knowledge of the premises to enter through a secure doorway not covered by closed circuit television. He was disguised by wearing a black balaclava and after entering was also able to partially disable the club’s closed circuit television. He was armed with an unloaded sawn-off shotgun. He threatened two employees, a male and a female, with the shotgun and forced them to open a safe and subsequently tie them up with tape. He took the contents of the safe amounting to over $44,000.00. He was sentenced to a term of imprisonment of six years with a non-parole period of two years and six months. He was aged 20 at the time of sentencing and had no prior convictions.
In the matter of R v Smedley (ACTSC, 23 June 2010, Gray J, unreported), the offender pleaded guilty to four charges including one charge of robbery, one charge of attempted robbery, one charge of aggravated robbery and one charge of assault occasioning actual bodily harm. The exact age of the offender is not revealed in the sentencing comments, although it appears that he was young. On the charge of aggravated robbery he was sentenced to two years and three months’ imprisonment.
In the matter of R v Twerd (ACTSC, 20 June 2013, Higgins CJ, unreported), the offender was sentenced in relation to three aggravated robberies and one offence of dishonest use of a motor vehicle. The sentencing remarks do not reveal the details of the offences, except that the robbery offences involved being armed with a large knife and the offender acting in an intimidating fashion. The offender gained very little from the offences. The offender had previous convictions for dishonesty and violence but no previous convictions for robbery. He was afforded a 10 percent discount for his pleas of guilty and was sentenced to three years’ imprisonment on each of the aggravated robbery charges and six months’ imprisonment on the charge of dishonest use of a motor vehicle. This was accumulated so as to give a head sentence of five years and six months’ imprisonment and a non-parole period of three years was set.
In the matter of R v Auld (ACTSC, 12 October 2012, Penfold J, unreported), the offender was sentenced for one offence of aggravated robbery. The offence was committed with a knife against a female victim and yielded only $5.00 to the offender. It appears that the offence was spontaneous and committed whilst the offender was heavily intoxicated. The offender was in his late 20’s, had had a difficult childhood and had drug and alcohol abuse issues. He had a criminal history comprised of minor driving offences, several offences of violence and an offence of burglary. He was subject to a Good Behaviour Order for the offence of burglary at the time he committed the aggravated robbery. The offender also had three offences of common assault taken into account on sentencing. Those were committed shortly after the aggravated robbery and involved displaying the knife to other victims. The offender entered early pleas of guilty and was given an aggregate head sentence of 2 years and 8 months’ imprisonment, with a non-parole period of 18 months. The sentence for the aggravated robbery itself was two years and seven months’ imprisonment.
In the matter of R v Austin (ACTSC, 7 February 2013, Penfold J, unreported), the offender was sentenced for an offence of arson and an offence of aggravated robbery and a burglary. He was 30 at the time of sentencing. That offence involved the use of force while in possession of a knife against a taxi driver. The offender obtained approximately $80.00, a coin holder and a mobile phone from the robbery. There was no premeditation and the offence arose after he was unable to pay the taxi fare. He entered early pleas of guilty and received a 25 percent discount on that basis. The offender had had a turbulent childhood, becoming involved in the use of drugs at 12 years of age. He had made two previous substantial attempts at rehabilitation. He had a significant criminal history of over 50 offences, mostly of dishonesty, but including at least one offence related to carrying a knife in public. In relation to the aggravated robbery he was sentenced to three years’ imprisonment.
In the matter of R v WJ (ACTSC, 5 October 2012, Burns J, unreported), the offender was sentenced to a head sentence of five years’ imprisonment with a non-parole period of two years and six months in relation to two aggravated robberies and two attempted aggravated robberies. He was 18 at the time of the offences and pleaded guilty, suffered from some mental health problems including bipolar disorder and only had a single drink driving offence on his adult criminal history.
In the matter of R v Monaghan (ACTSC, 11 December 2012, Refshauge J, unreported), the offender was sentenced in relation to an aggravated robbery, three thefts and the unlawful taking of a motor vehicle. He was in his early 20’s, entered pleas of guilty, suffered from developmental delay and had issues with alcohol and drugs. The aggravated robbery was committed with scissors and yielded $334.75 in cash, alcohol worth $101.98 and cigarettes worth $30.00. He was sentenced to three years’ imprisonment on the aggravated robbery. The offender had a previous criminal history, including having recently been sentenced for other aggravated robbery offences.
In the matter of R v Hutchison (ACTSC, 4 April 2013, Higgins CJ, unreported), the offender was sentenced for two counts of aggravated robbery, each committed at a takeaway restaurant with a knife. He entered pleas of guilty and was sentenced to three years’ imprisonment on each offence, accumulated to an aggregate head sentence of four years. A non-parole period of two years’ imprisonment was set.
In the matter of R v Strano (ACTSC, 4 February 2013, Penfold J, unreported), the offender was sentenced in relation to a single count of aggravated robbery. He robbed his victim by placing an arm around his neck while seated in a vehicle driven by the co-offender. The offender knew the victim and was aware that he was carrying $3,800.00. The offender was in his mid-40’s and entered late pleas of guilty after a trial had been aborted due to mental health concerns. He was sentenced to three years and four months’ imprisonment with a non-parole period of 22 months. He was noted to have a long criminal record, although it appears that this did not include any offences of robbery or aggravated robbery.
In the matter of R v Hart (ACTSC, 7 December 2012, Refshauge J, unreported), the offender was sentenced in relation to the aggravated robbery of a liquor store, which yielded $1,514.70 and 25 packets of cigarettes. The offender committed the offence with a stocking over his head and whilst in possession of a replica firearm while a co-offender was seated in a car outside. It was noted that the circumstances showed a degree of premeditation or planning. The offender was 32 years old at the time of the offence and entered a very late plea of guilty. He had a minor criminal history which did not deny him some leniency. His offending appeared alcohol related and it was noted that there had been a very substantial rehabilitation. He received a sentence of 3 years and 7 months’ imprisonment to be served by way of 11 days of full time custody, followed by two and a half years of periodic detention with the remainder of the sentence suspended for two years. This sentence was later amended to reduce the periodic detention component to 2 years and to include 350 hours of community service.
In the matter of R v Tresize (ACTSC, 7 September 2012, Nield AJ, unreported), the offender was sentenced in relation to two attempted robbery offences, an offence of recklessly inflicting grievous bodily harm and a further offence of armed robbery. These offences included an attempted armed robbery at an Australia Post outlet with a knife and a replica pistol which was fitted with a silencer, which resulted in an altercation whereby grievous bodily harm was inflicted upon the victim. The further attempted armed robbery related to a Commonwealth Bank outlet where the offender threatened that he had a bomb. The successful armed robbery was on a credit union where the offender threatened that he had a bomb and a gun. This offence yielded $1,055.00. The offender was 42 years old at sentence. He had had an unstable and dysfunctional upbringing marked by physical and sexual abuse. He had a significant methylamphetamine addiction and suffered from post-traumatic stress disorder, anxiety and attention deficit hyperactivity disorder. It was also noted that he suffered from bipolar disorder. He had a previous criminal history comprising some 52 offences, including 6 armed robberies, 8 burglaries and 11 thefts. After early pleas of guilty which resulted in a 20 percent discount, the offender was sentenced to a head sentence of 10 years’ imprisonment with a non-parole period of 7 years and 6 months. This comprised sentences of four years’ imprisonment for each of the robbery matters and two years and four months’ imprisonment for recklessly inflicting grievous bodily harm.
In the matter of R v Christie (ACTSC, 20 August 2013, Higgins CJ, unreported), the offender pleaded guilty to the aggravated robbery of a console operator at a service station while armed with a knife. He had a previous history of offences of dishonesty, including burglary. This was his first offence involving violence. He was aged 53 and was a long-term heroin addict. He was sentenced to three years and six months’ imprisonment, reduced from five years to reflect his plea of guilty, with a non-parole period of two years.
In the matter of R v O’Brien (ACTSC, 17 December 2010, Mathews AJ, unreported), the offender pleaded guilty to two charges of aggravated robbery. The first offence was committed at a Video-Ezy store where he approached two female employees, brandishing a knife and demanding money. Whilst on bail for this offence he robbed a service station at Watson, wielding a large machete-style knife. He was in his mid-20’s and had a long history of drug abuse. He had a prior criminal history of a relatively minor nature. He was sentenced to four years’ imprisonment in relation to the first aggravated robbery and four years and three months’ imprisonment for the second aggravated robbery. The total head sentence was five years’ imprisonment with a non-parole period of two years and six months.
In the matter of R v Miles (ACTSC, 19 March 2013, Burns J, unreported), the offender was sentenced by myself after a trial to six years and nine months’ imprisonment with a non-parole period of four years and six months for an offence of conspiracy to commit aggravated robbery. He was subsequently convicted of two further offences of aggravated robbery on 17 October 2013. On the first offence was sentenced to six years and three months’ imprisonment and on the second offence was sentenced to eight years and one month’s imprisonment. I note that these sentences are currently subject to appeal.
Consideration
Whilst the above decisions are useful as demonstrating the types of sentences previously imposed for offences of aggravated robbery, it cannot be said that any of these previous decisions are directly equivalent to your case.
The offence which you committed was clearly premeditated and planned. You were living in Cooma, New South Wales at the time of this offence. You drove to the Australian Capital Territory, I am satisfied, for the purpose of committing this robbery. You have shown no remorse for your actions. You did not enter a plea of guilty to the charge and maintained your plea of not guilty throughout, which of course you were entitled to. However, the fact that you maintained a plea of not guilty, requiring the matter to go to trial, means that you are not entitled to any discount which would have been afforded to you for a plea of guilty. Nothing by way of significant mitigation has been put before this Court.
Whilst there is evidence which was given by you at your trial that you suffer from panic attacks, no evidence of the nature of any psychological condition from which you may suffer has been put before me. There is nothing to suggest that you have any psychiatric condition which reduces your moral culpability for committing this offence or which is likely to make a sentence of imprisonment more difficult for you.
You are currently 32 years old and as such you cannot be said to be a young man. You are mature male and unfortunately you appear to have settled into a life of serious criminal offending. At the present time your prospects for rehabilitation appear bleak, although it is always possible that this may change with greater maturity in the years to come.
The dominant considerations for sentencing for this offence are punishment and deterrence. It is clear that any sentence which I impose must not only be designed to deter others from committing offences of aggravated robbery, but must also be such as to deter you from committing these types of offences. Nothing less than a significant term of imprisonment will be sufficient to appropriately punish you for your offending and to act as a deterrent to you and to others.
I must also give weight to the maximum penalty which has been prescribed by parliament which is one of 25 years’ imprisonment.
Sentence
For the offence of aggravated robbery, I record a conviction and you are sentenced to nine years’ imprisonment, commencing on 23 August 2013, the date that you were arrested in New South Wales, and expiring on 28 August 2022.
I set a non-parole period of six years commencing on 29 August 2013 and expiring on 28 August 2019.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns. Associate: Date: 5 June 2025 |
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Amendments
| 5 June 2025 | Replace “R v Robertson [2009] ACTCA 19” with “R v Robertson [2010] ACTCA 19” | Page 1: “Cases Cited:” |
| 5 June 2025 | Replace “R v Robertson [2009] ACTCA 19” with “R v Robertson [2010] ACTCA 19” | Paragraph [18] |
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