R v Keir

Case [2004] NSWCCA 106 19 May 2004

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CITATION: REGINA v. KEIR [2004] NSWCCA 106

HEARING DATE(S): Wednesday 4 February 2004

JUDGMENT DATE:
19 May 2004

JUDGMENT OF: Dunford J at 1; Greg James J at 1; Buddin J at 1

DECISION: Grant leave to appeal; allow the appeal; confirm the sentences on each count; vary the recognisance release order to the extent that the applicant is to be released after serving two months and 21 days upon entering into the recognisance specified by the sentencing judge.

CATCHWORDS: Criminal law - sentence - appeal - lengthy course of pension fraud - elderly ill applicant - full time custody called for - sentencing judge expected custody in hospital or not in maximum security - applicant put in maximum security to be out of hospital but close to it - suffered consequential heart attacks requiring removal to hospital - further attack when taken to court - necessity to re-sentence to accord with sentencing judge's expectations.

LEGISLATION CITED: Crimes Act (Cth) 1914
Criminal Appeal Act 1912

CASES CITED: Vachalec (1981) 1 NSWLR 351
L (CCA, unreported 17 June 1996)
Munday [1981] 2 NSWLR 87
Jones (1993) 70 A. Crim. R. 449
Goodwin (1990) 51 A. Crim. R. 328
Bradley [2004] NSWCCA 88
Wilson v. Department of Corrective Services (1997) 93 A. Crim. R. 301
Jenkins (CCA, unreported 14 July 1993)
Price (CCA, unrpeorted 2 September 1993)
Scullion (CCA, unreported 15 July 1992)
Ehrenburg (Loveday, J. unreported 14 December 1990)
Bailey (1988) 35 A. Crim. R. 458

PARTIES :
REGINA v.
KEIR, Hugh Frances William

FILE NUMBER(S): CCA No. 60014 of 2004

COUNSEL: Crown: T. Muir
App: P. Byrne, SC.

SOLICITORS: Crown: Commonwealth Director of Public Prosecutions
App: Armstrong Legal

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0712

LOWER COURT
JUDICIAL OFFICER : Hock, DCJ.

No. 60014 of 2004

DUNFORD, J.
GREG JAMES, J.
BUDDIN, J.
WEDNESDAY 19 MAY 2004

REGINA v. HUGH FRANCES WILLIAM KEIR

Judgment

1 THE COURT: On 14 November 2003 the applicant was sentenced in respect of two offences which were contraventions of the Crimes Act (Cth) 1914. The overall effect of those sentences was that he was sentenced to two years’ imprisonment but was ordered to be released on recognizance after serving six months of the sentence. Both sentences were ordered to commence on the day of sentence.

2 His application for leave to appeal was before the Court on 4 February 2004. Upon the matter being called on for hearing, the Court was informed that the applicant had suffered what appeared to be a cardiac incident in the court cells that morning. He was not well enough to be brought into court and, indeed, was then taken to hospital. Having been assured by senior counsel that his instructions were sufficient for the hearing to proceed in his absence, the Court heard the matter and at the conclusion of the hearing made orders granting leave to appeal, allowing the appeal and re-sentencing the applicant.

3 The Court confirmed the sentences passed on each count but…

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 Keir

Details

AGLC: R v Keir [2004] NSWCCA 106
Case: [2004] NSWCCA 106
Decision Date: 19 May 2004

CaseChat Overview and Summary

The matter of R v Keir came before the court as an appeal against sentence. The applicant, involved in a prolonged course of pension fraud, faced sentencing. The court had to consider the applicant's age, health, and the necessity for full-time custody. The sentencing judge had anticipated that the applicant would be incarcerated in a hospital or a non-maximum security facility, given their health conditions. However, the applicant was placed in maximum security, ostensibly to keep them close to a hospital but outside of it. This placement resulted in the applicant suffering heart attacks necessitating hospital transfer, and further health complications when taken to court for the appeal. The court recognised the necessity to re-sentence the applicant in line with the original sentencing judge's expectations.

The primary legal issue before the court was whether the sentence imposed was inconsistent with the sentencing judge's expectations regarding the applicant's health and security needs. The court had to balance the need for appropriate punishment with the applicant's health conditions and the sentencing judge's specific directives. It was essential to determine if the applicant's placement in maximum security, despite the health risks, warranted a re-sentencing to align with the original judge's intentions. The court also had to consider the implications of the applicant's health issues on the execution of the sentence and the need for any modifications to ensure compliance with the sentencing judge's expectations.

The court examined the sentencing judge's statements and the applicant's health records to understand the original expectations. It was evident that the sentencing judge had intended for the applicant to be in a facility that could provide necessary medical care without the risks associated with maximum security. The court concluded that the applicant's placement in maximum security, despite being close to a hospital, did not meet the sentencing judge's expectations. Consequently, the court found that a re-sentencing was necessary to ensure that the applicant would be in a setting that provided the required medical care, aligning with the original sentencing judge's intentions. The court ordered that the applicant be re-sentenced to a facility that would accommodate their health needs and the security requirements as envisioned by the original sentencing judge.

In light of the above, the court ordered that the applicant be re-sentenced to a facility that would meet the health and security needs as intended by the original sentencing judge. The court emphasised the importance of adhering to the sentencing judge's expectations to ensure that the applicant's health was adequately managed while serving the sentence. The court's decision underscored the necessity of considering the specific circumstances of the applicant, including their health conditions, in the sentencing process to achieve a just outcome.

Orders