Regina v Thomas Andrew Keir

[2000] NSWSC 111

CITATION:	REGINA v THOMAS ANDREW KEIR [2000] NSWSC 111
CURRENT JURISDICTION:	Criminal
FILE NUMBER(S):	SC 70049/98
HEARING DATE(S):	2/8/99, 3/8/99, 4/8/99, 5/8/99, 9/8/99, 10/8/99, 11/8/99, 12/8/99, 16/8/99, 17/8/99, 18/8/99, 19/8/99, 20/8/99, 24/8/99, 25/8/99,27/8/99, 30/8/99, 31/8/99, 1/9/99, 2/9/99, 6/9/99, 8/9/99, 9/9/99, 10/9/99, 13/9/99, 14/9/99, 15/9/99, 16/9/99, 17/9/99, 10/12/99, 29/2/00
JUDGMENT DATE:	29 February 2000
PARTIES :	THE QUEEN v THOMAS ANDREW KEIR
JUDGMENT OF:	Adams J at 1

COUNSEL :	Mr S Cogswell SC (Crown) Mr P Zahra (Accused)
SOLICITORS:	Anna Ilardo (Office of the DPP) (Crown) Simon Buchen (Accused)
CATCHWORDS:	Sentence - murder - intent to cause grievous bodily harm - gravity of "domestic" murder - use of Victim's Impact Statement
CASES CITED:	The Queen v Main (1999) NSWSC 1174 at [16] Veen (No 1) 1979 143 CLR 458 Regina v Vusumuzi Twala (unreported NSWCCA 4 November 1994) Veen (No 2) 1987/88 164 CLR 465 Garforth (unreported NSWCCA 23 May 9994)
DECISION:	Imprisonment for twenty-four years comprising a minimum term of eighteen years commecing 20 February 1998 (the date upon which custody for this offence commenced) and ending on 19 February 2016 and an additional term of six years commencing 20 February 2016 and ending on 19 February 2022.

THE SUPREME COURT
OF NEW SOUTH WALES
CRIMINAL DIVISION

ADAMS J

TUESDAY 29 FEBRUARY 2000

70049/98

REGINA v THOMAS ANDREW KEIR

JUDGMENT ON SENTENCE

1    HIS HONOUR: On 17 September 1999 Thomas Andrew Keir was convicted by a jury of murdering his then wife, Jean Angela Keir, on or about 9 February 1988 at Tregear in the State of New South Wales. 2    Mrs Keir and the prisoner were married in August 1984 when she was eighteen and he was twenty-six years of age. Their son, Michael, was born at the end of the year. There is no doubt that Mrs Keir was a loving and devoted mother. Regrettably, however, her marriage was at times a most unhappy one, increasingly so as the years passed. I need not for the purposes of these reasons to dilate upon these circumstances. It is, however, fair to say that the prisoner became extremely possessive of his wife and jealous of her relationships, not only with other male friends or acquaintances but also with male members of her own family. I have no doubt that he was also violent towards her from time to time although there is no evidence that, aside from the possibility of some bruising, she suffered any actual physical injury. However, there was a deal of evidence which established that from time to time throughout their marriage the prisoner threatened to kill her if she should ever leave him for another man. He made these threats not only to his wife, but to others. Mrs Keir from time to time, had expressed to her friends and family her unhappiness in the marriage arising out of the prisoner’s obsessive jealousy but feared that if she left him he would find her and kill her. 3    In late 1987, as it happened, Mrs Keir met and, it may be, fell in love with Carl Nieding. She was obviously very unhappy in her marriage at the time and Mr Nieding seems to have lent her a sympathetic ear. They slept together only once, on the first occasion that they met, but she called him from time to time suggesting, at first, that she wanted to leave her husband and live with him. Mr Nieding, who was somewhat older than Mrs Keir, and only found out about her being married after they had slept together pointed out, in effect, that this was not at all a good idea. Certainly, he was not interested in a committed relationship and he felt, rightly, that their acquaintance had been too short for her suggestion to be a sensible one. Even so, Mrs Keir called him on the telephone from time to time to talk about her unhappy situation and repeat her suggestion that she might come to live with him. They met again, perhaps two or three weeks later. The two talked, mostly about her life and Mr Nieding then drove her back to the railway station from which she took a train home. He said, and I accept, that aside from attempting to listen sympathetically to her, he did not encourage her to think that they might form a relationship and, indeed, attempted in a gentle way to dissuade her from continuing her contact with him. These events occurred some time in July 1987. 4    Some time later, after confessing her affair with Mr Nieding to her mother and grandmother, Mrs Keir told her husband about it. The prisoner sought Mr Nieding out. The prisoner said that he did not know whether he felt like punching him in the mouth or just talking to him. In the result, when the prisoner found Mr Nieding’s address and they met, it appears their conversation was relatively amicable and Mr Nieding did not apprehend any threat. I do not accept the prisoner’s assertion that he did not know exactly how he was feeling at that stage. I accept that, in the result, he neither threatened nor offered violence to Mr Nieding, for which there may be a number of reasons. I have no doubt, however, that whether he expressed it or not, the prisoner was extremely angry with his wife. He claimed that his immediate response was that as his wife had confessed her affair to him, he should also confess that he had an affair with her mother and, indeed, it was his reflection that he was not himself without blame that enabled him to keep what he described as “a level head about things”. I do not propose to discuss the evidence concerning the alleged affair between the prisoner and his mother-in-law. I have no doubt that the allegation was fabricated. 5    It is difficult to obtain a clear picture of the relationship between the prisoner and his wife during the ensuing months since, of course, aside from the prisoner, there were only occasional glimpses from outsiders. Be that as it may, it seems that towards the end of the year the relationship had degenerated to the stage where Mrs Keir was seriously considering leaving her husband, despite her expressed fears about doing so. Assisted to some degree by the intervention of her parents, the prisoner agreed to allow his wife to visit Culburra on the south coast of New South Wales with her sister and her partner. Despite Mrs Keir’s tearful pleas, he refused to allow her to take her son who was, of course, at this stage just over three years of age. The reason for this brief trip was that Mrs Keir had said she needed time alone to consider what she should do about her marriage. The prisoner asserted that he did not permit her to take their son because he thought he would prove a distraction for her. I am of the view that the prisoner’s real motive was that he suspected that his wife might not wish to return to him and retained Michael to render this possibility unlikely. It was also an exercise by him of his power so far as Michael was concerned and designed, I am convinced, to show his wife who was really in charge. It was a cruel act of cold-hearted manipulation. Although the prisoner agreed that his wife might remain at Culburra for a week, at the end of five days he went to collect her and, I have no doubt, to bring her home whether she wished to come or not. It is unnecessary for me to repeat the evidence given by Mrs Keir’s sister and her partner as to what happened. Suffice it to say that she was brutally forced by the prisoner into his car against her will and taken back to Sydney. What happened between them en route is unknown except for the prisoner’s evidence that they had a relatively amiable conversation. The prisoner denied any manhandling of his wife at any time and said that she got into the car voluntarily. This evidence was a lie. Nor do I accept the prisoner’s account of what occurred on the trip back. The fact is that when they stopped for petrol at Casula on the outskirts of Sydney the prisoner’s wife went to the lavatory and, when the prisoner himself left the vehicle for the same purpose, she got to the highway and hitchhiked to Bondi where Mr Nieding lived. This action by Mrs Keir, together with the accounts of what happened at Culburra from her sister and de facto husband provides a compelling basis for disbelieving the accused’s account of these events. 6    After he had been waiting for some little time, the prisoner discovered that his wife had gone and was seen hitchhiking on the highway. He went to find her but was unsuccessful and returned home. He surmised that she may have gone to Mr Nieding’s house and managed to get a message to Mr Nieding from a neighbour asking him to telephone. By that time, about 7pm, Jean Keir had already arrived. Mr Nieding agreed with the prisoner that he would attempt to persuade Jean to return home and that he would bring her. It is unnecessary to go into the evidence about what happened in any detail except to say that Mr Nieding managed to overcome Jean’s considerable reluctance and eventually drove her home. They arrived I am satisfied, at about 9pm. The prisoner came out to the car. He appeared to be calm. He was smiling. This was a mere pretence. Mr Nieding saw Jean Keir go into the house. It was the last occasion on which she was seen alive. 7    Jean Keir was murdered by the prisoner some time during the night of the 9/10 February 1988. Whether, however, he killed intentionally or death ensued by an act of violence inflicted with intention to cause grievous bodily harm is uncertain. In this respect, I consider that I should sentence the prisoner upon the basis that he intended to do no more than seriously harm her. When his wife was dead, the prisoner buried her, perhaps under or, more probably, at the side of the house where a few small bones were later discovered by police during an investigation in 1991. The prisoner has maintained throughout that he did not kill his wife; rather that she left him, leaving her son behind also, some time on 10 February 1988, indeed, that she had contacted him several times since then although he had not heard from her since about October 1988. He attempted also to suggest that she had run off with Mr Nieding and created an elaborate facade for this purpose. He continues to deny his guilt. The significance of these matters is that the prisoner has thereby demonstrated a complete lack of contrition or remorse in respect of his crime and, whilst this will add nothing to his sentence, it follows that I cannot give him any benefit which is conventionally available upon these considerations. His behaviour throughout has been cruel and pitiless. Of course, the prisoner’s standards do not measure out the standards of the criminal law. However, there is nothing in this case which excites sympathy for him and which would lead me to reduce what would otherwise be a sentence which reflects the objective seriousness of the crime. 8    At the sentence hearing the prisoner called his mother to give evidence about his upbringing and character as she found it to be. It is clear that Mrs Keir believed, for good reason, that her son was diligent, hard-working and, so far as she was concerned, generous. She had never known her son to be violent. Also called on the prisoner’s behalf, was Dr Westmore, a consultant forensic psychiatrist. In taking a history from the prisoner following his conviction, Dr Westmore noted that he maintained his position that he was not guilty of causing his wife’s death, saying that he could not understand how the jury came to the decision of guilty and felt that the outcome was “ridiculous”. In reaching his conclusions, Dr Westmore considered not only what the prisoner told him but also what was said by witnesses in the statements to which he had access and which, as I understand it, was elicited during the trial. I think it is desirable that I should set out the Doctor’s conclusions in his own words -

“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 indicated that his concerns about certain aspects of his wife’s behaviour were unhealthy and probably at an extreme.

It is correct when he indicates that jealousy occurs in relationships but it is when those emotions interfere in a significant and sustained way in the relationship itself that concerns arise about the pathology of the jealousy. This man on the history of others and to some extent supported by his own account had unhealthy levels of jealousy and hypersensitivity regarding his wife’s behaviour.
. . .
With his current position of denying the offending behaviour these issues cannot sensibly be addressed with him and this obviously has implications for resolving problems of the type I have described and this in turn impacts on the issue of his future dangerousness. I would not, as noted above, consider him to represent a risk to the general community but one would need to say that in the context of an intense emotional relationship of an intimate type he potentially does represent risk to the other person, particularly if that person chooses to leave him at some stage during the course of that relationship.”

9    In his evidence Dr Westmore said that he did not consider the prisoner to be suffering from pathological jealousy, which is thought to be a psychotic condition, but nevertheless there is evidence in his behaviour and attitudes placing him at the extreme end of jealousy. He does not suffer from delusions. Dr Westmore thought he was responding perhaps to real experiences but in a pathological unhealthy way. Dr Westmore thought that this personality characteristic was so intertwined with the prisoner’s whole character it was very difficult to treat and the utility of even long term psychotherapy was doubtful. In considering the question of future dangerousness the absence of a history of habitual violence was, according to the Doctor, significant. Dr Westmore was asked by the prisoner’s counsel, Mr Zahra, whether he could say anything about the probability that the prisoner would be a danger in the future. Dr Westmore said -

“On his current presentation of denial and his inability to acknowledge issues of jealousy within the relationship, there is a significant level of clinical concern about him and you would have to say that . . . his future relationships are potentially dangerous . . . more probably than not”.

10    The Doctor considered that the prisoner killed his wife in an impulsive, aggressive act. Dr Westmore concluded in his report that it seemed reasonable to conclude that this occurred in the context of his extreme emotions of jealousy and hypersensitivity regarding his wife’s behaviour combined with her forming a relationship with Mr Nieding, that the homicide occurred. 11    Before I pass to the legal considerations affecting sentence I should refer to the Victim’s Impact Statement which has been tendered by the Crown from Mrs Strachan, Jean Keir’s mother. It commences with the observation that the loss of a family member is always very painful but to lose a twenty-two year old daughter who had so much to live for is devastating. I have no doubt that Jean’s family and her friends have suffered a dreadful loss because of her death, a loss made all the more poignant because until recently they did not know its cause nor, with certainty, that she had died. The web of lies spun by the prisoner has caused them all additional grief. 12    I repeat here what I said in the Queen v Main (1999) NSWSC 1174 at [16] -

“In permitting these statements to be received, however, the law does not thereby place them to be weighed in the scales of judgment. I respectfully agree with and adopt he careful reasoning of Hunt CJ at CL in R v Previtera (1997) 94 A Crim R 76 and 85 ff as to why this must be so. The heinousness of murder is so great in the eyes of the law that it matters not whether the victim’s death is the cause of pain or grief to many or to none. Few notions could be more obnoxious to the moral standards essential to the rule of law than the suggestion that justice could regard the life of one person as more or less valuable than the life of another or, to put it in another way, the killing of one person as more grievous than the killing of another because of their personal or social circumstances. All right thinking people would accept that it would be completely wrong to take one day from an otherwise appropriate sentence for murder because the deceased was obnoxious, stupid, friendless and alone. By exact parity of reasoning, it cannot be right to add a day to an otherwise appropriate sentence because the deceased was loving, intelligent and surrounded by friends and family. If this were not so, counsel for a murderer might rationally submit that, as the deceased was of the former character, the sentence should be more lenient and the Crown Prosecutor, by pointing to a grieving widow, submit the contrary. The virtues and vices of the deceased, the extent of his or her social connections and whether the death caused grief or relief or was simply unnoticed by the indifference of the uninvolved, would then become the subject of evidence and argument.”

13    I wish to acknowledge and express my sympathy with the grief and loss which Jean’s family have suffered but for the reasons I have stated it would be wrong of me to allow those feelings to increase the sentence that is otherwise appropriate in point of law. 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. The very calmness of his communications with others immediately before and following the killing, his concealment of his wife’s body by burying it in his own yard and the removal of her personal effects reflect a chilling degree of remorseless callousness. I have no doubt that he believed he had the right to violently punish his wife for not only defying but also for trying to leave him and that he intended to cause her very serious injury. Her death may have been unintended but his violence was calculated. The evidence of the prisoner’s mother that he was a loving and supportive son does not qualify the objective gravity of the offence. Furthermore, I have formed the view beyond reasonable doubt that, unless there is a considerable change in the prisoner’s psyche (concerning which at present one can only be sceptical) there is a real and substantial danger that, faced with similar circumstances in the future, he will react in the same ruthlessly violent fashion. 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. Nor should they think that such attempts at justification will be met with sympathy. To the contrary, the assertion of such a right should be treated as rendering culpability all the greater. It was not otherwise submitted to me, but I think that I should nevertheless expressly state, the fact that Jean Keir had an affair (though I accept that sexual intercourse occurred on only one occasion) is completely irrelevant in assessing the prisoner’s culpability for her murder. To my mind, it does not add even a featherweight of mitigation. 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. I add that I do not accept that at the prisoner’s excessive jealousy was an emotional disturbance the effects of which he had no real control over. Whilst this may be a factor explaining to some degree why he killed his wife, I do not think that it is in any sense a mitigating factor. Amongst other matters, this significantly distinguishes the prisoner’s case from that considered by the Court of Criminal Appeal in Regina v Vusumuzi Twala (unreported NSWCCA 4 November 1994). 17    In light of what I have said about the danger that may be presented by the release of the prisoner into the community if there is no substantial change in his attitudes, I should state that it is fundamental to our notions of criminal justice that the imposition of a sentence of preventive detention and concern about the potential for future danger of a prisoner on his release cannot justify the imposition of a sentence which is disproportionate to the objective gravity of the crime: Veen (No 1) 1979 143 CLR 458. To do otherwise would be to punish a person for crimes he or she has not yet committed and may never commit. Even so, the risk to the community, where established, is appropriately taken into account to determine what weight, if any, should be given to subjective factors which otherwise call for leniency: Veen (No 2) 1987/88 164 CLR 465; Garforth (unreported) NSWCCA 23 May 1994; Twala (supra) at 11-12. 18    It is important to appreciate that the prisoner, by serving his minimum term, will not be entitled automatically to release at the conclusion of that period. The Offenders’ Review Board will need to determine whether he is fit to be released and on what conditions and for that purpose will be in a position to consider up-to-date psychiatric assessments of the prisoner. 19    In the circumstances of this case, I consider that the objective gravity of the prisoner’s crime to be so great that the fact of his prior good character and his supportive, indeed, generous conduct towards his mother should not affect in any significant degree the appropriate sentence. What little effect it might otherwise have, moreover, is reduced by the potential risk for the community that the prisoner presently demonstrates. However, if it happens that the prisoner begins to acknowledge his culpability in relation to this offence, that prior good character could give some reasonable basis for inferring that rehabilitation is not without some prospect of success. To that extent, I have given the prisoner some amelioration in the minimum sentence which otherwise I would have imposed. I do not find any special circumstances exist in this case. 20    Thomas Andrew Keir, you are sentenced to a term of imprisonment for twenty-four years comprising a minimum term of eighteen years commencing 20 February 1998 (the date upon which your custody for this offence commenced) and ending on 19 February 2016 and an additional term of six years commencing 20 February 2016 and ending on 19 February 2022.

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Last Modified: 09/25/2000