R v Keenan
[2005] VSCA 64
•10 March 2005
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 318 of 2004
| THE QUEEN |
| v. |
| JAMES WILLIAM KEENAN |
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JUDGES: | WINNEKE, P., CHARLES and CHERNOV, JJ.A. | |
WHERE HELD: | GEELONG | |
DATE OF HEARING: | 10 March 2005 | |
DATE OF JUDGMENT: | 10 March 2005 | |
MEDIUM NEUTRAL CITATION: | [2005] VSCA 64 | |
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Criminal Law - Sentencing - Intentionally causing injury - Appellant beat sister's de facto in his home with a hammer - Whether sentencing judge erred by aggravating the appellant's offending beyond extent open on evidence and verdict - Whether sentencing judge erred by finding immediate term of imprisonment required in circumstances - Head sentence of 18 months' imprisonment with minimum term of 9 months' imprisonment not manifestly excessive - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. with Ms R. Orr | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr L.R.C. Gwynn | Stary & Associates |
WINNEKE, P.:
I will invite Chernov, J.A. to give the first judgment in this appeal.
CHERNOV, J.A.:
On 27 October 2004, after his earlier trial had miscarried, the appellant, James William Keenan, who is now aged 30, pleaded not guilty in the County Court at Geelong to a presentment containing the following five counts: one count of aggravated burglary, two counts of making a threat to kill, one count of causing serious injury intentionally and one count of causing serious injury recklessly. At the time of his arraignment, the appellant had indicated that he was prepared to plead guilty to a charge of recklessly causing injury, but the Crown rejected this plea and the trial proceeded. It occupied four sitting days, during which eight Crown witnesses were called and cross-examined by the appellant's counsel. On 3 November 2004 the jury found the appellant guilty of the alternative to the fourth count, namely, intentionally causing injury, and not guilty of all of the remaining counts. The maximum penalty for intentionally causing injury is ten years' imprisonment. The appellant admitted 24 prior convictions from six court appearances between March 1992 and August 1998, including one in 1992 for recklessly causing serious injury and one in 1996 for recklessly causing injury. After hearing a plea in mitigation on 4 November 2004 made on his behalf, on 10 November 2004, her Honour sentenced the appellant to 18 months' imprisonment and directed that he serve a minimum term of nine months' imprisonment before becoming eligible for parole. It is clear enough from her Honour's sentencing remarks that the sentence reflects a degree of leniency which recognises, amongst other mitigating factors, the appellant's expression of remorse and his apparently genuine efforts to achieve rehabilitation. The latter factor, it seems to me, is reflected in the relatively short non-parole period.
By notice filed on 19 November 2004 the appellant sought leave to appeal against the sentence on the sole ground that it is manifestly excessive. On 4 February 2005 a judge of this Court granted the appellant leave to appeal pursuant to s.582 of the Crimes Act 1958. It seems from the appellant's full statement of grounds, filed on 15 February 2005, that the appellant relies on two further grounds, both of which were raised before his Honour. I will come back to all the grounds.
I turn now to describe briefly the circumstances of the offending. At the appellant's trial, inconsistent versions of the events surrounding his offending conduct were given in evidence. More particularly, the appellant's version of them, as recounted by him during the record of interview on which he relied at the trial, differed in a number of significant respects from the evidence given by the victim. For present purposes, however, it is sufficient that I set out only the critical facts that were not in dispute.
The offence occurred on 11 June 2003 at premises in St Albans, where the victim lived with the appellant's sister and their two children. On the previous day, the couple had argued and, as a result, the appellant's sister took the two children to stay with her at her mother's house that night. She returned with her mother on the following day, being the date of the offence, expecting that the victim would not be there. When she arrived, however, she encountered him and an argument broke out, during which each of them was violent and abusive towards the other. The victim admitted later to pushing the appellant's sister in the face and throwing an open can of soft-drink at her mother's head. The two women left the house shortly thereafter and drove to the local police station to report the incident and so that the sister could take out an intervention order against the victim. Whilst there, the appellant's mother telephoned him, telling him what had happened at the house and requesting him to go there to collect his sister's car keys, which she had left behind accidentally.
Not long thereafter, the appellant went to the victim's home with a friend and the two of them entered the house through the rear door. It is common ground that at the time the appellant was angry with the victim because of the way he behaved towards his sister. Shortly after the appellant arrived at the victim's premises, a fight broke out between them, in the course of which the appellant violently and viciously assaulted the victim, hitting him with a hammer and forcing him to the ground and punching him to the head a number of times, while his co-offender hit the victim's legs with the back of an axe. When the victim feigned death, the appellant then started to walk away, but came back and continued to punch and kick the victim while he offered no resistance.
As a result of the beating he received at the hands of the appellant, the victim sustained a considerable number of injuries, which required him to be hospitalised for a number of days. As her Honour noted in her sentencing remarks, he suffered a number of lacerations and extensive bruising and swelling to his head, but no fractured bones. His right calf was particularly sore and tender and treating doctors feared that it was compartment syndrome, that is, a permanent injury. Fortunately, however, the injury healed with bed rest. The victim also suffered from psychological scarring, more particularly depression, severe stress and anxiety, and consequently required psychological counselling which was ongoing at the time of sentencing.
It was the Crown case at the trial that the appellant went to the victim's house armed with a hammer, with the intention of assaulting him with it by way of punishment for what he did to his sister, and that, as a measure of self-defence, the victim used a chair in order to fend off the attack. In his record of interview, which, as I have said, was tendered in evidence, the appellant denied that he had brought the hammer with him and claimed that it was located at the victim's home when he got there, and that he picked it up only after the victim attacked him with a chair, although he admitted he "went a bit more than he should have". He also said that his kicking of the victim was a "low act" and expressed remorse for his conduct.
In her sentencing remarks, her Honour set out briefly the essential facts and circumstances surrounding the appellant's offending conduct, without attributing blame to either protagonist for starting the fight and, importantly, without assuming that the appellant went to the home armed with a hammer. Relevantly, the learned sentencing judge said that the offence occurred "in the context of your anger erupting over the victim's treatment of your sister". After outlining the injuries suffered by the victim and considering the appellant's personal circumstances, including factors going to mitigation, her Honour accepted that the appellant "did not intend to injure the victim to the extent that he needed to be hospitalised" and noted that he had expressed remorse both to his examining forensic psychologist, and by being prepared to plead guilty, albeit to the lesser offence of recklessly causing injury. Her Honour concluded that "because of your prior convictions for violence, and because of the violence of this offence, combined with the circumstances of it having occurred in the victim's own home, there is no alternative but to impose a sentence of imprisonment which you will serve immediately".
As to the appellant's personal circumstances, he is, as I have noted, aged 30. He grew up in the Sunshine area and has two siblings, and he described his childhood as being "happy but chaotic". The appellant's relationship with his alcoholic father, who died in 1995, was strained, but it was much closer with his mother, who attended both the trial and the sentencing. The appellant left school half way through year 12 and has been employed only irregularly since then. At the date of sentence he was employed as a carpenter's labourer and his employer, in a written reference to the court, stated that he was a "good worker".
The appellant has been a chronic user of cannabis and has been addicted to heroin for a number of years, although at the date of sentencing he was participating in a programme in an attempt to stop using the drug. It is not surprising, therefore, that a number of his prior offences were drug related, as was confirmed by the report of Ms Carla Lechner, a forensic psychologist, dated 25 October 2004, which was tendered in evidence during the hearing of the plea in mitigation. I note, however, that the appellant was assessed by Ms Lechner as being of above average intelligence.
I now turn to the third of the appellant's three grounds on which he relies in support of his appeal. This ground constituted the main argument so adequately and forcefully argued by Mr Gwynn for the appellant. Under cover of this ground it was claimed that her Honour "erred by aggravating the appellant's offending beyond the extent to which the verdicts of the jury and the evidence at the trial permitted". Mr Gwynn contended that, given the jury's verdict, they must have accepted the appellant's account of events and rejected that of the victim. In the circumstances, said counsel, her Honour gave inadequate weight to the provocation caused to the appellant by the victim and gave too much weight to the anger of the appellant in attending the premises. Counsel submitted that the jury must have accepted that the appellant had permission to attend the premises to collect his sister's keys, she being the lessee of the premises, and thus he was not a trespasser. Moreover, it was said, the jury's verdicts made it plain that, for sentencing purposes, the appellant could not be treated as having gone to the victim's house armed with a hammer. In the circumstances, it was said for the appellant, her Honour's treatment of the offence as being aggravated by the fact that it occurred in the victim's home and as having occurred in the context of "his erupting over the treatment of his sister" vitiated her Honour's sentencing discretion.
It may be accepted for present purposes that the jury's verdicts meant that her Honour could not have been properly satisfied beyond reasonable doubt that the appellant went to the victim's home armed with a hammer, but I should say that, as I read her Honour's sentencing remarks, no such assumption was made by her for sentencing purposes. On the other hand, as Ms Orr for the respondent pointed out in the written outline of her submissions, the jury's verdicts do not necessarily mean that they accepted that the appellant was provoked by the victim. Importantly, I think, it was open to the learned sentencing judge to be satisfied to the requisite standard that the appellant was, as I have said, angry with the victim when he arrived at his place (the appellant admitted as much, as I have said) and, in light of the violent, vicious and prolonged beating that the appellant inflicted on the victim, to draw the inference that the offending was the product of the "eruption" of his anger over the victim's treatment of his sister, irrespective of who provoked the fight between them. The appellant's attack on the victim went well beyond a mere response to any provocation on the part of the victim. It was not contended that it was occasioned by way of self-defence, and it appears that, at least in large part, it was explicable by his anger at the victim for the latter's abuse of his sister. That it occurred in the victim's home was, I consider, in the circumstances, also a matter of aggravation that her Honour was entitled to put on the scales, notwithstanding that the appellant could not have been treated, as I have said, as a trespasser. As the learned President pointed out in argument, in treating the fact that the offending conduct occurred at the victim's home as an aggravating factor, her Honour did no more than permissibly recognise that, in the circumstances, the appellant abused the licence he had to enter the victim's home. Thus, I consider that, in the circumstances, there is nothing in ground 3.
It was contended for the appellant under cover of ground 2 that her Honour erred in considering that there was no alternative but to impose an immediate sentence of imprisonment on the appellant. In coming to that conclusion, the learned sentencing judge took account, permissibly I think, of the appellant's prior convictions for violence and the extent of the brutality of his attack on the victim in his own home. I find no relevant error in her Honour's conclusion that an immediate sentence of imprisonment of the appellant was required. Thus, I think ground 2 must fail.
I am of the like view in relation to ground 1, which alleges that the sentence is manifestly excessive. Given the level and extent of the violence that was involved in the appellant's assault on the victim and the intentional infliction of injuries on him, the seriousness of the offence and the importance of the principles of special and general deterrence and denunciation by the court of the kind of conduct in which the appellant engaged in this case, and having regard to his criminal history, I consider that the sentence is well within the relevant range. In coming to that conclusion, I have borne in mind the appellant's personal circumstances, his expression of remorse and her Honour's view that he has taken positive steps towards his rehabilitation.
But, even if I am wrong in my above conclusions and her Honour's sentencing discretion was vitiated by the errors contended for by the appellant, given the seriousness of the offence, the essential elements of which the appellant admitted by his plea of guilty, the severe injuries that the appellant intentionally inflicted on the victim and the operation of the applicable sentencing principles, I would not have re-sentenced him to a lesser term of imprisonment than that imposed by her Honour.
In the circumstances, I would dismiss the appeal.
WINNEKE, P.:
I agree.
CHARLES, J.A.:
I also agree.
WINNEKE, P.:
The formal order of the Court is that the appeal is dismissed.
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