Regina v Keir

[2004] NSWSC 1194

CITATION:	Regina v Keir [2004] NSWSC 1194
HEARING DATE(S):	08/12/04
JUDGMENT DATE:	13 December 2004
JURISDICTION:	Common Law
JUDGMENT OF:	M W Campbell AJ
DECISION:	Thomas Andrew Keir you are sentenced to a term of imprisonment for twenty two years commencing on 20 February 1998 and ending on 19 February 2020 with a non-parole period of sixteen years. You will be eligible for release on parole on 20 February 2014.
CATCHWORDS:	Sentence - Murder - Husband kills wife.
LEGISLATION CITED:	Criminal Procedure Act 1986 Crimes Act 1900 s19A Crimes (Sentencing Procedure) Act 1999 s28(4)(b),44(2).
CASES CITED:	R v. Gilmore (1979) 1 ACrimR 416 R v Bedford (1985-1986) 5 NSWLR 711 R v Merritt [2000] NSW CCA 365 R v Previtera (1997) 94 ACrimR 76 R v Bollen (1998) 99 ACrimR 510 R v Nixon (CCA, unreported, 31 October 1995)
PARTIES :	Regina Thomas Andrew Keir
FILE NUMBER(S):	SC 70012/02
COUNSEL:	G J Tabuteau (Crown) S S Hanley (Accused)
SOLICITORS:	J Henderson - DPP (Crown) G Goold (Accused)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

Monday 13 December 2004

M W Campbell AJ

70012/02 REGINA v Thomas Andrew KEIR

JUDGMENT ON SENTENCE

1 HIS HONOUR: On 22 October 2004 Thomas Andrew Keir was convicted before me sitting without a jury of the murder of Jean Angela Keir at Tregear on or about 9 February 1988.

2 I heard evidence and submissions on sentence on 8 December 2004 and then indicated that I would impose sentence in the first weeks of February 2005.

3 Upon reflection I have concluded that in the unusual circumstances of this matter the issues raised by Counsel in their helpful addresses can and should be addressed quite shortly with the avoidance of much unnecessary repetition.

4 The trial before me was a second retrial.

5 Mr Keir was convicted on 17 September 1999 by a jury of the murder of Jean Angela Keir. Adams J sentenced him to a term of imprisonment of twenty four years comprising a minimum term of eighteen years and an additional term of six years.

6 For reasons which do not presently matter a retrial was ordered by the Court of Criminal Appeal.

7 Mr Keir was then convicted on 17 September 2002 by a jury of the murder of Jean Angela Keir. Kirby J sentenced him to a term of imprisonment of twenty two years with a non-parole period of sixteen years.

8 For reasons which do not presently matter a retrial was ordered by the Court of Criminal Appeal.

9 Thus, Mr Keir came to be sentenced by me having at the immediately preceding trial upon the same charge been sentenced to a term of imprisonment of twenty two years with a non-parole period of sixteen years.

10 The remarks on sentence of Adams and Kirby JJ were before me. Mr Hanley of Counsel, who appeared for Mr Keir, observed that there was little alteration in the materials relevant to sentence. There were some different findings on particular issues and differences of emphasis on some aspects, however, I think that observation substantially correct.

11 The approach ordinarily to be taken to sentencing after a retrial was stated in R v. Gilmore (1979) 1 ACrimR 416. Street CJ, with whom Lusher J agreed, said at 419, 420:

“It is a sound principle of sentencing that, on a new trial consequent upon the quashing of a conviction by the Court of Criminal Appeal, the accused should ordinarily not receive a longer sentence or non-parole period than those following upon the first trial. The application of this ordinary principle will, of course, necessarily yield in relation to the non-parole period if there is some significant subsequent circumstance to be taken into account. ….. But, so far as concerns the head sentence, that passed on the first trial should ordinarily not be exceeded if the new trial results in conviction again.

12 That the Court did not intend that R v Gilmore should be regarded as absolutely depriving a judge on a second trial of any discretion in relation to the sentence to be imposed is demonstrated by R v Bedford (1985-1986) 5 NSWLR 711 (and see, R v Merritt [2000] NSW CCA 365 per O’Keefe J at 6).

13 In R v Bedford Street CJ, with whom Slattery CJ at CL and Brownie J agreed, said at 713, 714:

“…..It is significant to emphasise that the enunciation of the principle includes “should ordinarily not receive”. The word “ordinarily” must be given full room to operate. It might perhaps have been preferable to have expressed this as a prima facie approach rather than elevating it to principle.
Where the judge at the new trial considers that the circumstances of the case do call for a longer sentence he will not be absolutely fettered by the approach prima facie to be adopted. He is both at liberty, and indeed obliged, to give effect to his own assessment. It could be expected, however, that, if he did take the view that a longer sentence were called for than that passed at the first trial, then there would be a specific indication of the reasons leading him to this view.”

14 In this matter Mr Crown identified one, and only one, reason why he submitted I should depart from the prima facie rule and impose a higher sentence than that imposed by Kirby J. He submitted that the sentence imposed by Adams J would be appropriate.

15 To understand the Crown’s submission it is necessary to refer very briefly and selectively to some of the facts I found. My view of the facts is set out extensively in my written judgment of 22 October 2004.

16 Jean Keir and Mr Keir were married on 11 August 1984. By the end of 1987 their relationship was in difficulties. Jean Keir had had an association with Carl Nieding which had involved intercourse of which Mr Keir was aware. Over a period of years Mr Keir had conveyed threats to Jean Keir that he would kill her if she left him or “messed around with somebody else”. He had on one occasion disciplined her with a slap to the face and admitted slapping her on another occasion.

17 On 9 February 1984 Jean Keir was away from home at Culburra considering her position. Mr Keir went to Culburra and brought her, against her will and with the use of moderate force, to Liverpool on the way to their home. During the journey she fled and went to Carl Nieding.

18 At 10.30 pm or later that night Carl Nieding dropped Jean Keir at their home at Tregear and she entered the home with Mr Keir. He murdered her that night.

19 The following day Mr Keir, apparently coolly and calmly, commenced an extensive course of deception designed to conceal the murder and lead others to believe that Jean Keir had left him and moved away.

20 Mr Crown submitted that the appropriate inference to be drawn beyond reasonable doubt from all the evidence was that Mr Keir intended to kill Jean Keir.

21 In the trial before Kirby J the jury’s verdict could have been on the basis that the jury were satisfied beyond reasonable doubt that Mr Keir intended to kill Jean Keir, however, it would have been sufficient to be satisfied beyond reasonable doubt of intention to inflict grievous bodily harm.

22 The issue thus fell for determination by the sentencing judge. Kirby J said:

“I likewise, being uncertain as to the precise way in which Jean Keir met her death at the hands of her husband, do not feel able to infer beyond reasonable doubt an intention to kill, as opposed to an intention to cause grievous bodily harm.”

23 The reference to “likewise” is to the fact that Adams J, faced with the same issue, had reach the same conclusion.

24 Mr Crown’s submission was that I should be satisfied beyond reasonable doubt of an intention to kill and that that would be a reason for the imposition of a sentence higher than that imposed by Kirby J. Indeed, although Mr Crown did not so submit, it would be a reason, looking at the factor of intention alone, to impose a sentence higher than that imposed by Adams J. It appears from his remarks on sentence that Adams J would have imposed a greater sentence had he been so satisfied.

25 In my judgment of 22 October 2004 I found that the Crown had proved beyond reasonable doubt that Mr Keir intended to kill Jean Keir or cause her grievous bodily harm.

26 That finding was sufficient for the matter then being considered, although it could be expected that had I been satisfied beyond reasonable doubt that Mr Keir intended to kill Jean Keir I would have made a finding to that effect.

27 I have considered the issue further in the light of Mr Crown’s submissions which relied particularly upon Mr Keir’s conduct both before and after 9 February 1989. I am not satisfied beyond reasonable doubt that Mr Keir intended to kill Jean Keir as opposed to intending to inflict grievous bodily harm.

28 Accordingly, I consider that the prima facie position laid down in R v Gilmore and R v Bedford applies and that I should not impose a head sentence greater than that imposed by Kirby J.

29 There has not been any subsequent significant circumstance to be taken into account and, subject to what follows, I adopt the same position in relation to the non-parole period.

30 As Kirby J pointed out that non-parole period departs to a minor degree from the proportion suggested by s 44(2) of the Crimes (Sentencing Procedure) Act 1999. He made a finding of special circumstances to permit that departure, believing that Mr Keir would benefit from supervision over the longer period. I make the same finding and add as factors relevant to that finding that this is the first custodial sentence served by Mr Keir and that he has and will serve at least some portion of it under protection.

31 Mr Hanley in his outline of submissions put that: “The sentence imposed by Kirby J is within the parameter of sentences imposed for offences of this type.”

32 I agree with that submission and further consider that on the evidence and the submissions made to me that sentence was the appropriate one and that I should impose the same sentence. I do not consider that a lesser sentence would be appropriate.

33 My reasons for that view are essentially the same as those of Kirby J set out in his remarks on sentence of 21 March 2003 which were, of course, published both generally and to the parties.

34 There is no utility in a reiteration of those remarks, however, I should make some additional observations.

35 Two impact victim statements prepared by Mrs Christine Strachan, the mother of Jean Keir, were before Kirby J albeit dealt with by him in accordance with the principles identified in R v Previtera (1997) 94 ACrimR 76.

36 Those statements were also before me together with an addition bringing the matter up to date. One can only have sympathy for Mrs Strachan and her family. However, I do not consider it appropriate to have regard to the statements in the determination of the sentence to be imposed. (See R v Previtera; R v Bollen (1998) 99 ACrimR 510 and s 28(4)(b) of the Crimes (Sentencing Procedure) Act 1999). It would be contrary to principle to use the material in a way which would affect the sentence to be imposed in this case.

37 Kirby J referred [30] to a passage in the judgment of Badgery-Parker J in R v Nixon (CCA, unreported, 31 October 1995) in which reference is made to an examination of some twelve cases determined under s 19A of the Crimes Act 1900 where the murder of a woman by a man occurred in circumstances of a continuing or recently terminated relationship between them. Total sentences ranged from sixteen to twenty two years with minimum terms ranging from eleven years to sixteen years.

38 Mr Hanley tendered a broadly similar schedule of cases from 1991 to date. He submitted that the sentence imposed by Kirby J fell towards the top of the range indicated by these cases.

39 I agree that that is so. However, I note that Kirby J considered that Mr Keir’s conduct “was within the top of the range” referring to the cases mentioned by Badgery-Parker J.

40 This material does not cause me to change the view that I have already indicated.

41 Mr Hanley informed me that Mr Keir has been held and is being held in limited protection. This matter is not referred to in Kirby J’s judgment. He may not have been informed. It may be that he considered, as I do, that this circumstance is not of sufficient weight in this case to alter the appropriateness of the sentence which he imposed.

42 It is agreed that Mr Keir’s sentence should commence from 20 February 1998.

43 Thomas Andrew Keir you are sentenced to a term of imprisonment for twenty two years commencing on 20 February 1998 and ending on 19 February 2020 with a non-parole period of sixteen years. You will be eligible for release on parole on 19 February 2014.

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Last Modified: 12/15/2004