R v Keogh - [2019] QCA 173

SUPREME COURT OF QUEENSLAND

CITATION:

R v Keogh [2019] QCA 173

PARTIES:

R
v
KEOGH, Mark Thomas
(applicant)

FILE NO/S:

CA No 137 of 2019
DC No 1027 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 May 2019 (Loury QC DCJ)

DELIVERED ON:

Date of Orders: 23 August 2019
Date of Publication of Reasons: 6 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

23 August 2019

JUDGES:

Holmes CJ and Gotterson and McMurdo JJA

ORDERS:

Date of Orders: 23 August 2019

1.   Grant leave to appeal.

2.   Allow the appeal.

3.   Vary the sentence to a period of 18 months imprisonment.

4.   Fix a parole release date at 23 August 2019.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of extortion – where the applicant was sentenced to two years imprisonment, suspended after eight months for an operational period of two years – where the applicant and another person made threats to the complainant to the effect that if the complainant did not pay back bond money owed to another person, the complainant would suffer personal violence – where the applicant stood to gain nothing personally from the threat – where the applicant did not actually extract money from the complainant nor did he threaten to cause harm to other innocent people – where the learned sentencing judge had acted upon a principle that for an offence of extortion, a sentence of imprisonment requiring actual custody must be imposed and that term must be significant if one of a number of defined circumstances of aggravation applied – whether the learned sentencing judge acted on an incorrect principle in sentencing the applicant

R v Amery[1999] QCA 236, considered
R v Cifuentes [2006] QCA 566, discussed
R v Shambrook[1997] QCA 356, considered

COUNSEL:

A M Hoare for the applicant
M T Whitbread for the respondent

SOLICITORS:

Gilmore Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

HOLMES CJ: I agree with the reasons of Gotterson JA.
GOTTERSON JA: On 15 May 2019, the applicant, Mark Thomas Keogh, pleaded guilty in the District Court at Brisbane to a charge of offending against s 415(1) of the Criminal Code (Qld) in that between 19 and 22 November 2017 at Indooroopilly, he demanded a sum of money, without reasonable cause, with intent to gain a benefit for Vasanth Elumalai, and with a threat to cause a detriment to Matthew Keith Edwards. He was convicted and a sentence hearing ensued.
On the same day, the applicant was sentenced to two years imprisonment. The sentence was suspended after eight months for an operational period of two years.
The applicant filed an application for leave to appeal to this Court against the sentence on 17 May 2019.[1] The application was heard on 23 August 2019. At…

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 Keogh

Details

AGLC: R v Keogh [2019] QCA 173
Case: [2019] QCA 173
Decision Date: 6 September 2019

CaseChat Overview and Summary

The applicant in this case pleaded guilty to one count of extortion and was sentenced to two years imprisonment, suspended after eight months for an operational period of two years. The applicant and another person had made threats to the complainant to the effect that if the complainant did not pay back bond money owed to another person, the complainant would suffer personal violence. The applicant stood to gain nothing personally from the threat and did not actually extract money from the complainant nor did he threaten to cause harm to other innocent people. The applicant appealed against the sentence, arguing that the sentencing judge had acted on an incorrect principle in sentencing him.

The legal issues before the court were whether the learned sentencing judge had acted on an incorrect principle in sentencing the applicant and, if so, whether the court should interfere with the sentence. The applicant submitted that the learned sentencing judge had acted on an incorrect principle in sentencing him, as the judge had imposed a sentence of imprisonment requiring actual custody and had based this on the principle that the term must be significant if one of a number of defined circumstances of aggravation applied. The applicant submitted that the learned sentencing judge had failed to take into account that the applicant did not stand to gain personally from the threat, did not extract money from the complainant, and did not threaten to cause harm to other innocent people.

The court found that the learned sentencing judge had indeed acted on an incorrect principle in sentencing the applicant. The court held that the principle that a sentence of imprisonment requiring actual custody must be imposed for an offence of extortion was not applicable in this case, as the applicant did not stand to gain personally from the threat, did not extract money from the complainant, and did not threaten to cause harm to other innocent people. The court further held that the learned sentencing judge had failed to take into account the mitigating factors in the case, which included the applicant's guilty plea, his lack of a criminal record, and his remorse for his actions.

The court allowed the appeal and varied the sentence to a period of 18 months imprisonment. The court fixed a parole release date at 23 August 2019. The court held that the sentence was just and appropriate in the circumstances of the case, taking into account the mitigating factors and the nature and circumstances of the offence. The court held that the sentence was not manifestly inadequate or excessive and that there was no need for the court to interfere with the sentence.

Orders

Orders of the court

1. Grant leave to appeal.

2. Allow the appeal.

3. Vary the sentence to a period of 18 months imprisonment.

4. Fix a parole release date at 23 August 2019.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	R v Keogh [2019] QCA 173
PARTIES:	R v KEOGH, Mark Thomas (applicant)
FILE NO/S:	CA No 137 of 2019 DC No 1027 of 2019
DIVISION:	Court of Appeal
PROCEEDING:	Sentence Application
ORIGINATING COURT:	District Court at Brisbane – Date of Sentence: 15 May 2019 (Loury QC DCJ)
DELIVERED ON:	Date of Orders: 23 August 2019 Date of Publication of Reasons: 6 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	23 August 2019
JUDGES:	Holmes CJ and Gotterson and McMurdo JJA
ORDERS:	Date of Orders: 23 August 2019 1. Grant leave to appeal. 2. Allow the appeal. 3. Vary the sentence to a period of 18 months imprisonment. 4. Fix a parole release date at 23 August 2019.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant pleaded guilty to one count of extortion – where the applicant was sentenced to two years imprisonment, suspended after eight months for an operational period of two years – where the applicant and another person made threats to the complainant to the effect that if the complainant did not pay back bond money owed to another person, the complainant would suffer personal violence – where the applicant stood to gain nothing personally from the threat – where the applicant did not actually extract money from the complainant nor did he threaten to cause harm to other innocent people – where the learned sentencing judge had acted upon a principle that for an offence of extortion, a sentence of imprisonment requiring actual custody must be imposed and that term must be significant if one of a number of defined circumstances of aggravation applied – whether the learned sentencing judge acted on an incorrect principle in sentencing the applicant R v Amery[1999] QCA 236, considered R v Cifuentes [2006] QCA 566, discussed R v Shambrook[1997] QCA 356, considered
COUNSEL:	A M Hoare for the applicant M T Whitbread for the respondent
SOLICITORS:	Gilmore Lawyers for the applicant Director of Public Prosecutions (Queensland) for the respondent