SUPREME COURT OF QUEENSLAND
CITATION: R v Keenan [2009] QCA 236 PARTIES: R v KEENAN, Francis Robert (applicant) FILE NO/S: CA No 78 of 2007 SC No 120 of 2007 DIVISION: Court of Appeal PROCEEDING: Sentence Application ORIGINATING
COURT:Supreme Court at Brisbane DELIVERED ON: 21 August 2009 DELIVERED AT: Brisbane HEARING DATE: 27 May 2009 JUDGES: McMurdo P, Keane JA and Fraser JA
Separate reasons for judgment of each member of the Court,
Keane and Fraser JJA concurring as to the order made,
McMurdo P dissentingORDER: Application for leave to appeal against sentence refused CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where applicant convicted upon jury verdict of doing grievous bodily harm with intent to do grievous bodily harm and acquitted of murder – where applicant sentenced to life imprisonment – where complainant rendered paraplegic – where offence committed in circumstances of gang violence – whether sentencing judge erred in imposing life imprisonment Corrective Services Act 2006 (Qld), s 181, s 182
Criminal Code 1899 (Qld), s 8, s 317, s 320
Penalties and Sentences Act 1992 (Qld), s 9, s 161Buckley v R (2006) 224 ALR 416; [2006] HCA 7, cited Director of Public Prosecutions (UK) v Ottewell [1970] AC 642, cited R v Anderson, unreported, Supreme Court, Qld, Moynihan J,
20 April 2001, cited
R v Aston (No 1) [1991] 1 Qd R 363, cited
R v Aston (No 2) [1991] 1 Qd R 375, cited
R v Chambers, Harrison & Fisher; ex parte A-G (Qld) (2002)
136 A Crim R 89; [2002] QCA 534, cited
R v Cole [2004] QCA 109, cited
R v Griffith [2004] QCA 110, cited
R v Ho, Le, Le & Le, unreported, Supreme Court, Qld,
PD McMurdo J, Indictment No 406 of 2003, cited
R v Keenan (2009) 236 CLR 397; [2009] HCA 1, considered
R v Keenan [2007] QCA 440, considered
R v Le; Ho & Le [2005] QCA 144, cited
R v OL [2004] QCA 439, cited
R v Petroff, unreported, Supreme Court, NSW, Hunt J,
12 November 1999, cited
R v Reeves [2001] QCA 91, cited
R v Robinson [2007] QCA 99, cited
R v Wilkie [1997] QCA 337, cited
R v Witchard & Ors; ex parte A-G (Qld) [2005] 1 Qd R 428;
[2004] QCA 429, cited
Veen v The Queen (1979) 143 CLR 458; [1979] HCA 7, cited
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA
14, citedCOUNSEL: A J Kimmins, with Y Chekirova, for the applicant
R G Martin SC for the respondentSOLICITORS: Potts Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the
respondent
McMURDO P: Unlike my colleagues, I would grant this application for leave to appeal against sentence, allow the appeal, set aside the sentence imposed…
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Details
- AGLC
- R v Keenan [2009] QCA 236
- Case
- [2009] QCA 236
- Decision Date
CaseChat Overview and Summary
The applicant, Keenan, appealed against the sentence of life imprisonment imposed upon him following his conviction for grievous bodily harm with intent, in circumstances of gang violence. The complainant in the case was rendered paraplegic. The appeal was heard by the court of criminal appeal in Australia. The central legal issue before the court was whether the sentence of life imprisonment was manifestly excessive or inadequate in the circumstances of the case. The court had to consider whether the sentencing judge had erred in imposing such a severe penalty.
The court examined the nature and circumstances of the offence, the character and culpability of the offender, and the principles governing the imposition of life imprisonment. It noted that Keenan had deliberately planned the offence for his own vengeful motivation, involving three others, and had inflicted grievous bodily harm through shots from a gun. The court also considered Keenan's prior conviction for manslaughter, which was "referable to vengeful motivation in the context of betrayal". The court concluded that this was a serious example of a planned, vengeful, violent attack, which resulted in grave and permanent injury to the victim. Given these factors, the court found that the sentencing judge was justified in imposing the maximum penalty of life imprisonment. The court further explained that where a sentence of life imprisonment is not mandatory, it should be imposed only where the court is plainly satisfied that imprisonment for a long, finite term will not suffice. The court rejected Keenan's appeal against sentence.
No orders were made in relation to the sentence. The application for leave to appeal against sentence was refused.
The court examined the nature and circumstances of the offence, the character and culpability of the offender, and the principles governing the imposition of life imprisonment. It noted that Keenan had deliberately planned the offence for his own vengeful motivation, involving three others, and had inflicted grievous bodily harm through shots from a gun. The court also considered Keenan's prior conviction for manslaughter, which was "referable to vengeful motivation in the context of betrayal". The court concluded that this was a serious example of a planned, vengeful, violent attack, which resulted in grave and permanent injury to the victim. Given these factors, the court found that the sentencing judge was justified in imposing the maximum penalty of life imprisonment. The court further explained that where a sentence of life imprisonment is not mandatory, it should be imposed only where the court is plainly satisfied that imprisonment for a long, finite term will not suffice. The court rejected Keenan's appeal against sentence.
No orders were made in relation to the sentence. The application for leave to appeal against sentence was refused.
Orders
Orders of the court
Application for leave to appeal against sentence refused
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Coffey's insight into his injuries puts him in a position as victim at or close to the worst end of the range of these types of offence. Life imprisonment is reserved for the worst category of case. Keenan deliberately planned the offence for his own vengeful motivation and involved three others. The grievous bodily harm was inflicted by shots from a gun. Consistent with the jury's verdict, this was within the probable contemplation of the plan. Keenan's prior conviction for manslaughter was also "referable to vengeful motivation in the context of betrayal". His commission of the present offence only a year after release from a long prison sentence did not suggest sanguine or any sound prospects of rehabilitation. R v Aston[12] and Veen v The Queen [No 2][13] were authority for the principle that where life imprisonment was not mandatory it should be imposed only where the court was "plainly not satisfied imprisonment for a long, finite term will suffice". This case warranted the imposition of the maximum penalty of life imprisonment. [12] [1991] 1 Qd R 363. [13] (1988) 164 CLR 465. Conclusion The maximum penalty for this offence against s 317(e) Criminal Code is life imprisonment. The central question in this application is whether this serious example of a planned, vengeful, violent attack, which resulted in grave and permanent injury to the victim, by an offender with prior convictions involving serious personal violence, warranted the maximum term of life imprisonment. If Keenan's life sentence remains, he will be eligible to apply for parole after he has served 15 years,[14] but parole may never be granted. He may be in custody for the rest of his life. He was 34 years old at sentence and 32 when he committed this offence. [14] Corrective Services Act 2006 (Qld), s 181(3). As the sentencing judge recognised, where a sentence of life imprisonment is not mandatory, it should be imposed only where the court is plainly satisfied that imprisonment for a long, finite term will not suffice: see Veen v The Queen [No 2].[15] Courts do not lightly impose life imprisonment when exercising the sentencing discretion. It has the effect of handing the judicial sentencing discretion to the executive. [15] (1988) 164 CLR 465; Mason CJ, Brennan, Dawson and Toohey JJ at 474-478. Hunt J explained the impact of a life sentence on an offender in R v Petroff:[16] "The indeterminate nature of a life sentence has long been the subject of criticism by penologists and others concerned with the prison system and the punishment of offenders generally. Such a sentence deprives a prisoner of any fixed goal to aim for, it robs him of any incentive and it is personally destructive of his morale. The life sentence imposes intolerable burdens upon most prisoners because of their incarceration for an indeterminate period, and the result of that imposition has been an increased difficulty in their management by the prison authorities."[17] [16] Unreported, Supreme Court of NSW Criminal Division, Hunt J, 12 November 1999 at 1-2. [17] See also Nicholas Cowdery QC 'Mandatory Life Sentences in New South Wales' (1999) 22(1) New South Wales Law Journal 290; Dr John L Anderson 'Indefinite, inhumane, inequitable – the principle of equal application of the law and the nature of life sentence for murder: a reform agenda' (2008) 29(3) New South Wales Law Journal 139.
Ratio Decidendi
Legal Principle Established
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