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[2007] VSC 14
appellant. Sentence of 16 years imprisonment with non-parole period of 12 years imposed; 1663 days declared as already served
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This case establishes that when a person is convicted at a retrial, the judge should normally not impose a longer sentence than they received at the first trial. Trevor McKeown was convicted of murder in 2004 and sentenced to 16 years in prison. After that conviction was set aside, he was retried and convicted again in 2007. The second judge, Bongiorno J, imposed exactly the same sentence (16 years with a 12-year non-parole period) because there was no reason to change it. The judge confirmed that McKeown would receive credit for the time he had already spent in prison (1663 days).
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CRIMINAL LAW - Murder - Retrial - Original head sentence should not ordinarily be exceeded - Identical head sentence and non-parole period imposed.
1. Trevor McKeown, you have today been convicted by a jury of one count of murder. This court must now sentence you in respect of that conviction according to law.
2. Your trial which was completed today with a verdict of guilty was the second trial which has reached that conclusion. The other was conducted by Kellam J in early 2004. After hearing a plea on your behalf on 15 April of that year, Kellam J sentenced you to a term of imprisonment of 16 years with a non-parole period of 12 years. He published reasons for doing so[1].
3. In reaching his conclusion as to your sentence, His Honour had before him a report of Mr Patrick Newton, a psychologist. Today your counsel, Mr Desmond, again tendered that report which I have read, as I have read Kellam J's sentencing remarks. Mr Newton accepts the inevitability of your having to serve a long prison term in respect of this offence but expresses guarded optimism as to your ultimate prognosis. It is to be sincerely hoped that in this opinion he is ultimately proved correct.
4. Kellam J listed a number of mitigating factors in your case which I am also prepared to take into account. Indeed, having now conducted this trial and heard your counsel as to the progress you have made in the long period you have already spent in prison, I am in complete agreement with Kellam J's reasons for the sentence he imposed and with that sentence.
5. In reaching that conclusion, I rely upon a number of authorities which support the proposition that where a retrial results in a conviction, ordinarily the original head sentence, at least, should not be exceeded[2]. In this case I consider that there is no reason to vary the non-parole period fixed by Kellam J either. You will, of course, retain the benefit of all the time you have served whilst on remand and under Kellam J's sentence.
6. It is the sentence of the Court that you be imprisoned for 16 years and it is further ordered that you serve a minimum term of 12 years before being eligible for parole. I declare that a period of 1663 days has already been served in respect of this sentence and I direct that this declaration and its effect be entered in the records of the Court.
I certify that this and the preceding page are a true copy of the reasons for Sentence of Bongiorno J of the Supreme Court of Victoria delivered on 2 February 2007.
DATED this second day of February 2007.
[2] Gilmore (1979) 1 A Crim R 416; Williams v The Queen (No 2) [1982] WAR 281; R v Bedford (1986) 5 NSWLR 711; R v Chen [1993] VicRp 64; [1993] 2 VR 139; Campbell v The Queen (unreported, Federal Court, 11 September 1996); R v Petersen [1998] QCA 65; [1999] 2 Qd R 85.
DPP
McKeown [2007] VSC 14
(1986) 5 NSWLR 711
Sentence of 16 years imprisonment with non-parole period of 12 years imposed; 1663 days declared as already served