R v Keenan - [2005] VSCA 64

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.…

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 Keenan

Details

AGLC: R v Keenan [2005] VSCA 64
Case: [2005] VSCA 64
Decision Date: 10 March 2005

CaseChat Overview and Summary

Keenan, the appellant, was convicted of intentionally causing injury to his sister's de facto with a hammer at his home. The dispute arose when the appellant appealed his sentence, arguing that the sentencing judge erred in aggravating his offending beyond the extent open on the evidence and verdict, and in finding that an immediate term of imprisonment was required. The High Court of Australia was tasked with reviewing the legal issues presented in the appeal.

The legal issues before the court included whether the sentencing judge had erred in determining the appropriate level of sentence for the appellant's offence. The court had to consider whether the head sentence of 18 months' imprisonment, with a minimum term of 9 months' imprisonment, was manifestly excessive in the circumstances. Additionally, the court examined whether the sentencing judge had correctly assessed the necessity for an immediate term of imprisonment.

The court held that the sentencing judge did not err in imposing the sentence. The court found that the head sentence of 18 months' imprisonment, with a minimum term of 9 months' imprisonment, was not manifestly excessive. The court reasoned that the appellant's actions were premeditated and violent, and that the sentence reflected the seriousness of the offence. Furthermore, the court determined that the sentencing judge correctly found that an immediate term of imprisonment was necessary in the circumstances. The appeal was dismissed, and the original sentence was upheld.

In conclusion, the High Court of Australia dismissed the appellant's appeal, affirming the original sentence of 18 months' imprisonment, with a minimum term of 9 months' imprisonment. The court found that the sentence was not manifestly excessive and that the sentencing judge had correctly determined the need for an immediate term of imprisonment.

Orders