Regina v Keir

[2003] NSWSC 140

CITATION:	Regina v Keir [2003] NSWSC 140
HEARING DATE(S):	12/06/02 28/06/02 22-26/07/02 30-31/07/02 1/08/02 5-8/08/02 12/08/02 14-15/08/02 19-23/08/02 26-29/08/02 2-4/09/02 9-13/09/02 16-18/09/02 20/09/02 23-27/09/02 1-4/10/02 8-11/10/02 14-17/10/02 22/11/02 7/03/03
JUDGMENT DATE:	21 March 2003
JURISDICTION:	Common Law Divsion Criminal List
JUDGMENT OF:	Kirby J
DECISION:	Sentence; 22 years imprisonment with non parole period of 16 years

CATCHWORDS:	Criminal Practice & Procedure - domestic murder - whether worst class of case - effect of delay in prosecution
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Storey (1996) 89 A Crim R 519 The Queen v Olbrich (1999) 199 CLR 270 R v R W Nixon (CCA, unreported, 31.10.95) R v McDonald (CCA, unreported, 18.08.94) R v Rose [2002] NSWSC 26 Regina v V (unreported, CCA, 24.2.98) R v Todd (1982) 2 NSWLR 517 R v Holyoak (1995) 82 A Crim R 502 R v Previtera (1997) 94 A Crim R 76 R v Keir [2000] NSWSC 111 R v Twala (unreported, CCA, 4.11.94) R v Alexander (1999) 107 A Crim R 449 R v Adam [1999] NSWSC 144
PARTIES :	Regina Thomas Andrew Keir
FILE NUMBER(S):	SC 70005/02
COUNSEL:	G J Tabuteau (Crown) P F Hogan (Accused)
SOLICITORS:	K Kalda - DPP (Crown) G Goold (Accused)

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

DAVID KIRBY J

Friday 21 March 2003

70005/02 - REGINA v Thomas Andrew KEIR

JUDGMENT ON SENTENCE

1 KIRBY J: On 17 September 2002 a jury found Thomas Andrew Keir guilty of the murder of his wife, Jean Angela Keir. It remains for me to pass sentence. In order to do so, I must determine the facts relevant to the sentencing discretion in a manner consistent with the jury verdict. Where the facts are adverse, they must be established beyond reasonable doubt. Where they favour Mr Keir, it is enough that they should be proved on the balance of probabilities (R v Storey (1996) 89 A Crim R 519; The Queen v Olbrich (1999) 199 CLR 270).

The Relationship between Mr Keir and his Wife

2 Mr Keir was born on 1 January 1958. He is therefore 45 years old. Having left school, he qualified as an upholsterer. He established a business in which he employed Mrs Christine Strachan, the mother of Jean Keir. And so it was that Mr Keir met Jean in approximately 1980. She was then about 14 years old. Mr Keir was eight years older. They married on 11 August 1984, when Jean was 18. They had a son, Michael, the following year.

3 At first the marriage appeared to be reasonably happy. However, within a year, Jean made it clear to certain friends that she was not entirely happy. Some of her friends witnessed incidents which revealed the true nature of the relationship. First, Mr Keir objected to the way in which Jean dressed. He regarded her clothing as too revealing. She was required to cover up. He insisted that strips of cloth be sewn into swim suits, in the crutch area in one case, and near the bust (which was said to be translucent) in another.

4 Secondly, Mr Keir objected to any displays of physical affection by Jean towards another male, even a relative. For instance, he strongly disapproved of Jean hugging male cousins, even though they had grown up together. He was heard to mutter threats to kill one cousin who applied suntan oil to Jean's back. Dr Westmore, psychiatrist, thought that Mr Keir's behaviour towards his wife, as described, suggested an unhealthy obsessiveness, even a degree of morbid jealousy, although he was unable to confirm the latter as a diagnosis.

5 Mr Keir's behaviour went well beyond being simply unpleasant. In his efforts to control Jean's behaviour, he resorted to both threats and violence. The threats were made repeatedly to Jean in private. They were also made on a number of occasions in public, that is, in the company of friends. Two messages were conveyed. The first was that if ever Jean were to leave him he would pursue her and kill her. He said that if he could not have her, no-one else would. The second was that if ever Jean were to take up with another man he would kill her.

6 Mr Keir also resorted to violence. When giving evidence he acknowledged that on two occasions he had slapped Jean's face. He denied otherwise having physically abused her. Adams J, after the first trial, said that he had no doubt that Mr Keir had been violent towards his wife, and that such violence went well beyond that which he had acknowledged. I, likewise, have no doubt. Jean said to friends that she had been assaulted by her husband. A number of friends saw bruising to her skin. I accept that evidence. It should be said that there was no evidence of injury, apart from bruising.

Mr Carl Neiding

7 In approximately July 1987, Jean met Mr Carl Neiding. Mr Neiding was a somewhat older man. There was an issue about the date upon which they met. Mr Keir said that he was told by his wife that they met some time between October and November 1987. I think it more likely that it was July. However, nothing, to my mind, turns upon the date.

8 At the time of the meeting Jean was working. She was unhappy. She decided to take a day off work. She went to the city and sat near the Archibald Fountain. She fell into conversation with Mr Carl Neiding who was passing by. She told him of her unhappiness. He offered a sympathetic ear. They spent the day together, returning to his flat at Bondi Beach. Sexual intercourse took place. Mr Neiding then drove Jean back to Blacktown. In the course of that journey, Jean revealed that she was married, and that she had a child, whom she loved.

9 Mr Neiding, whose account I accept, said that within the weeks that followed, Jean rang him on a number of occasions. She spoke of having trouble with her husband, and of not wanting to stay with him. She said that she thought she was in love with Mr Neiding.

10 Mr Neiding did his best to make it plain that he was not interested in continuing the relationship. He said that Jean should endeavour to sort out her marriage. Jean asked for one further meeting. Mr Neiding agreed. Again they met at the Archibald Fountain. They then drove to Bondi. Mr Neiding again sought to make it clear that he was not interested in continuing their relationship. He said they did not go to the flat. Sexual intercourse did not take place. I accept Mr Neiding's evidence. Jean later told her aunt, in January 1988, that she only ever had sexual intercourse once with Mr Neiding, which would have been the occasion of their first meeting.

11 Jean was plainly troubled by her infidelity. Against the advice of her mother, she disclosed it to Mr Keir. There was no evidence that Mr Keir, on that occasion, harmed Jean. However, there is no doubt that he was very angry. He went in search of Mr Neiding, even though he had little information as to his identity or his whereabouts. He simply knew that his name was Carl and that he lived in Bondi. Some time later, with the assistance of Jean, Mr Keir discovered where Mr Neiding lived. He went to his flat. He met Mr Neiding and they talked for some hours. He did not threaten Mr Neiding, nor offer violence. Indeed, he asked him to telephone Jean and tell her that she should try to sort out her marriage with her husband. Mr Neiding did so.

12 Shortly thereafter Mr Neiding went overseas for an extended period, partly to discourage Jean from further contact.

13 Jean, in the meantime, remained unhappy. She appeared to her friends to be anxious. She told them that she wanted to leave her husband, taking her child. She said, however, that she was frightened to do so because she believed her husband would kill her.

14 Ultimately, in January 1988, Mr Keir agreed that Jean could accompany her sister and her sister's defacto husband to the family caravan at Culburra. She should have time alone "to sort out" what she wanted to do. She asked Mr Keir if she could take Michael, who was then three years old. Mr Keir refused. He feared that if she were to go with Michael, she may never return.

15 Jean Keir left for Culburra by train on 4 February 1988. She arrived on her birthday, 5 February, in the early hours of the morning. The agreement was that she was to remain until the weekend of 13 or 14 February. Mr Keir sent her roses for her birthday. Jean at first thought that the flowers were from Carl Neiding, and that made her happy.

16 Mr Keir, however, remained unhappy about his wife's absence. According to Mrs Strachan, whose evidence I accept, Mr Keir's father made the following remark:

"If it were my wife, I'd go up there and drag her back by the hair where she belongs."

17 Whatever the reason, Mr Keir determined that he would go to Culburra on Tuesday 9 February 1988, and bring Jean back. He arrived early that morning. Jean plainly did not want to return. She protested in front of her sister and her brother in law. In a brutal fashion, Mr Keir physically forced Jean into the car, and restrained her as he drove off.

18 On the outskirts of Sydney, however, Jean asked to go to the toilet. They pulled into a service station. Jean took advantage of the stop to slip away. She hitch-hiked back to Sydney. She made her way to Mr Neiding's flat at Bondi. Mr Keir telephoned Mr Neiding once he realised what had happened. Mr Neiding acknowledged Jean's presence. He said that he would endeavour to persuade her to return to him.

19 Mr Neiding ultimately drove Jean home. She exhibited great reluctance to return. However, she ultimately agreed to do so. Mr Neiding dropped her at her home in Tregear. The car was met by Mr Keir. Mr Neiding did not stay. Jean got out of the car and was last seen by Mr Neiding walking up the side of the house. She was never seen alive again.

The Cause of Death

20 Jean Keir was murdered by Mr Keir at some time during the night of 9 or the morning of 10 February 1988. The way in which she met her death is unknown. A witness who may be described as a gaol informer, a Mr Perkins, gave evidence of a conversation he had with Mr Keir in gaol in April 1991. According to Mr Perkins, Mr Keir said that he had bashed and choked his wife, and later buried her under the house. Mr Colin Page, whose evidence I accept, spoke to Jean in late January 1988, a matter of weeks before her death. Jean said that she was frightened of her husband. She described occasions when they were fooling around, wrestling, when he would suddenly become serious. He would put her in a stranglehold and say words to the effect:

"This is how easy it would be to kill you if ever I caught you mucking around with another man."

21 It seems likely that Mr Keir strangled Jean Keir. Such a finding cannot be made, however, beyond reasonable doubt. Having brought about her death, Mr Keir buried his wife in the backyard of their home. He later removed her body, leaving behind seven small bones which were discovered by the police in May 1991 when they excavated the rear yard of that home.

22 These bones were submitted to various laboratories in Australia before being sent to the United States of America. In the United States, a laboratory was successful in extracting DNA from a number of the bones. They yielded a profile which very strongly supported the hypothesis that the bones were those of Jean Keir. The jury obviously accepted, as I do, that they were the bones of Jean Keir, and that Mr Keir had buried them in the garden at Tregear.

Intent to Kill?

23 The Crown urged that I should infer that the act causing death was carried out with an intention to kill. Mr Keir had so often announced that intention that it would be reasonable, according to the Crown, to draw the inference that death occurred in those circumstances. Adams J, when sentencing Mr Keir on 29 February 2000, on substantially the same evidence, did not feel able to draw that inference beyond reasonable doubt. However, his Honour said this: (para 14)

"Although I am prepared to give the prisoner the benefit of the doubt as to the intention with which he attacked his wife and caused her death, nevertheless it would be unreal to ignore the fact that he had previously contemplated killing her if she ever left him for another man. This act of violence was not, therefore, the completely unpredictable and aberrant act of a person who is suddenly faced with circumstances that they had not anticipated and moved them to act in a way that was completely out of character with their normal moral standards. To the contrary, the prisoner's arrogant, controlling behaviour in respect of his wife, demonstrated from time to time by his manhandling of her, his concealment of her contraceptive pills and his threats of murder, showed that he considered her as his property to be dealt with as he thought it right. The tragic and extreme violence which caused his wife's death reflects the end point of a path upon which the prisoner had deliberately walked for some years."

24 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. I nonetheless share the views of Adams J in the passage that I have just cited.

25 Having buried his wife, Mr Keir then went to work. He said, falsely, that his wife had left him, suggesting that she had gone off with another man. He exhibited a quite remarkable calm, a chilling commentary upon his character. He told Jean's mother, Mrs Christine Strachan, and others, of telephone calls from Jean in the weeks and months that followed, as well as visits by Jean to the family home whilst he was absent. These accounts, of course, were false. They added to the puzzlement and torment of Jean's family and friends after her disappearance.

Domestic Murders

26 In determining the objective seriousness of Mr Keir's act which brought about the death of his wife, reference has been made to the fact that it was what might be termed "a domestic murder". Acknowledging that murder of any description is the most serious crime in the criminal calendar, and is deserving of a lengthy custodial sentence, except in the most exceptional circumstances, it is nonetheless suggested that domestic murders are less culpable than, for instance, contract killings, or murders that may occur in a non-domestic setting. Adams J, commenting upon that submission, when sentencing Mr Keir after the first trial, said this: (para 15)

"It has sometimes been suggested that 'domestic' murders comprise a less heinous class of crime than murders where such a relationship is absent. I do not accept this point of view. The deliberate infliction of lethal violence is as culpable whether the victim is a spouse or a stranger. I add that it is apparent that there are some men in the community who consider that marriage gives them the right to control the lives and welfare of their wives and to punish them when they do not comply with those demands. Those men should be warned that the law will not stand idly by and permit them to commit crimes of violence, however justified they think they might be."

27 I agree, with respect, with his Honour's comments concerning the deliberate infliction of lethal violence and the abhorrent attitude of some men. However, it is evident in some cases, where one party to a relationship murders another, that a volatile mixture of emotions can sometimes cause people to act in a way which is wholly unpredictable and out of character. Such cases, aptly described as "domestic murders", may be less heinous, as a class of crime, than murder without such passion. They are less heinous, recognising human frailty, where the passion provides an explanation, although not an excuse, for what took place.

28 Here, for the reasons stated, the murder of Jean Keir cannot be considered wholly unpredictable, nor out of character, given Mr Keir's conduct and threats of violence throughout their short married life. That is not to say that passion did not intrude. I believe it did. I have no doubt that, at times, Mr Keir loved his wife. The fact that he sent her flowers on her birthday, four days before her death, is some indication of his feelings towards her. However, he wanted her love on his own terms, which became increasingly unacceptable to Jean.

29 Counsel for Mr Keir drew attention to the following passage from the judgment of Badgery-Parker J (with which Gleeson CJ and Abadee J agreed) in R v Raymond William Nixon (CCA, unreported, 31.10.95) dealing with what were termed domestic murders. Badgery-Parker J said this, referring to the judgment of the Court of Criminal Appeal in Regina v McDonald (CCA, unreported, 18.08.94):

"While that case may be regarded as providing a benchmark in the sense that the facts in other cases may usefully be compared with the facts in that and may be said to be more or less serious, it seems to me that in the circumstances of the present case, where the killing arose out of the relationship between the parties, or more precisely, out of the ending of that relationship, there are other cases which may be looked at as providing a better guide. Of course it is never possible to make any close comparison of all the relevant factors that dictate the sentence in each particular case. There is no one sentence which is the correct sentence in a particular case. The most that can be said is that in respect of any case there is a range beyond which a sentence will be too severe or too light."

30 His Honour added:

"An examination of twelve cases determined under s19A, where the murder of a woman by a man occurred in circumstances of a continuing or recently terminated relationship between them, reveals total sentences ranging from 16 to 22 years, with minimum terms ranging from 11 years to 16 years and additional terms ranging from four years to seven years. The average length of sentence is just under 19 years. The average length of the minimum term is 13.94 years and the average length of the additional term is 5.33 years."

31 I accept that these remarks provide a useful guide, although I also accept that Mr Keir's conduct, even though carried out with an intent to inflict grievous bodily harm rather than an intent to kill, was within the top of the range.

The Subjective Case of Mr Keir

32 At the time of these events, Mr Keir had a number of convictions, in respect of which he received fines. Adams J approached the matter on the basis that he had prior good character, and was therefore entitled to a measure of leniency. Whilst that was unquestionably a generous approach, I will adopt the same approach when re-sentencing. There was also evidence that Mr Keir behaved well towards his mother and had been generous financially to her. Mr Keir enjoyed, and enjoys, a good relationship with his family and with his son.

33 Mr Keir maintains his innocence. He has shown no contrition whatever. Dr Westmore, who examined him in November 1999 after the first trial, said this, having referred to the evidence concerning Mr Keir's attempts to control his wife's dress and behaviour: (report 28.4.99)

"With that information it is probably reasonable to assume that he does not represent a risk to the general population when future dangerousness is being considered. His risks within intimate relationships must be considered to be reasonably high. The history indicates that he became quite obsessed in this particular relationship, he may have even developed a degree of morbid jealousy although I cannot confirm that. The history however does indicate that his concerns about certain aspects of his wife's behaviour were unhealthy and probably at an extreme."

34 It was suggested, on behalf of Mr Keir, that I should take account of the delay in prosecution. Delay in prosecution can be relevant to the sentence imposed (R v Rose [2002] NSWSC 26 at para 29). A measure of leniency may be appropriate where the offender is not responsible for delay and can point to a specific detriment arising from delay.

35 Detriment may arise in many ways. Evidence relevant on sentence, which may have been available had the prosecution been brought in a timely way, may cease to be available (Regina v V (unreported, CCA, 24.2.98)). The offender, on the other hand, may be left in a state of uncertain suspense (R v Todd (1982) 2 NSWLR 517, per Street CJ at 519), or may have spent years in an emotional hell (R v Holyoak (1995) 82 A Crim R 502, per Allen J at 508). On the other hand, delay may work to the offender's advantage. It may, as Wood J said in Regina v V (supra), provide "an opportunity ... for the offender to establish a new life and to positively demonstrate his rehabilitation".

36 Here the delay before May 1991 was caused by Mr Keir and his pretence that Jean had disappeared. The delay from 1991 until 1998 was caused by the time consuming process of DNA testing, both in Australia and overseas. Mr Keir was not responsible for that delay. However, there is no evidence that he lived in a state of uncertain suspense or in some private hell, or was otherwise disadvantaged. The delay has, in one respect, operated to his advantage. Mr Keir can now point to a conviction free period since 1988, which is relevant to his prospects for rehabilitation.

37 On the issue of rehabilitation, I accept that, given his age, 45 years, and the likely time at which he will be released to parole, his prospects of rehabilitation are better than reasonable.

38 Mrs Christine Strachan, the mother of Jean, has prepared two documents which describe the effect upon her of Jean's disappearance and death and the effect upon the family. Each is a moving account of the family's relationship with Jean. Each describes Jean's character. Jean was young, beautiful, and full of joy. She was a devoted mother. Each statement describes the anguish and the puzzlement upon her disappearance. They describe the torment of having to endure the trial and the appellate process. One can only have sympathy for Mrs Strachan and her family. However, I must, of course, deal with such material in a manner consistent with the principles identified in R v Previtera (1997) 94 A Crim R 76 at 85.

39 Mr Keir has been in custody since 20 February 1998. His sentence should commence from that date.

40 After the first trial, Adams J imposed a sentence of 24 years with a minimum term of 18 years. His Honour said this (R v Keir [2000] NSWSC 111): (para 16)

"The only substantial factor which takes this crime out of the worst class of case is that I am not satisfied that the prisoner intended to kill Jean Keir. Though causing the death of someone when intending to inflict serious bodily injury is a very grave crime, it is necessary (unless the circumstances are exceptional) to confine the most serious class of case to those, at least, where the killing results from an intention to cause death."

41 I, with respect, view the matter somewhat differently. Without in any way diminishing the awful and brutal nature of this crime, it could not, in my view, be included in the worst class of case (as that term has been interpreted), even had there been present an intent to kill (cf R v Twala (unreported, CCA, 4.11.94) per Badgery Parker J; R v Alexander (1999) 107 A Crim R 449 at 454; R v Adam [1999] NSWSC 144 per Wood CJ at CL, at para 39 to 52). I believe that the appropriate sentence, recognising the objective gravity of the crime, and the subjective features of Mr Keir's case, including the absence of serious criminal convictions, is 22 years with a non-parole period of 16 years (cf s21A Crimes (Sentencing Procedure) Act 1999). Such a sentence departs to a minor degree from the proportion suggested by s44(2) of the Crimes (Sentencing Procedure) Act, 1999. I make a finding of special circumstance to permit that departure, believing that Mr Keir will benefit from supervision for that period.

42 Thomas Andrew Keir, I sentence you to imprisonment for 22 years commencing on 20 February 1998 and expiring on 19 February 2020, with a non parole period of 16 years. You will therefore be eligible for release on parole on 20 February 2014.

**********

Last Modified: 03/24/2003