R v Keating [2002] QCA 19

Court of Appeal (Qld)|2002-02-06|Before: Pherson JA, Thomas JA, Ambrose J

The applicant has a fairly lengthy criminal history consistent with his heroin addiction. Apart from drug offences it includes offences of soliciting for the purposes of prostitution and three separate convictions for possession of a knife in a public place.

Before turning to the essential point in the case; namely, where a serious violent offence declaration should have been made I shall briefly mention the nature of the other offences to which the applicant pleaded guilty.

The more serious of the fraud counts occurred in 1998. In June 1998 two Victorian customers of Citibank reported the loss of their chequebook. In the following month a cheque for $14,870 was deposited into the applicant's account. In due course the customers queried the debit and the matter was investigated. The applicant admitted cashing the cheque into his account but said he could not recall many details and declined to be further interviewed. He was interviewed by police on that matter in January 2000 and was on bail for it when he committed the remainder of the offences. The entire proceeds of the cheque was spent by the applicant and no recovery is possible.

The subsequent receiving and fraud charges involved the applicant receiving a number of stolen credit cards from a criminal associate. Between 20 May and 6 June 2000 he used the cards to complete 52 transactions and obtained over $3,000.

The unlawful use charge concerns the applicant's taking of a motor vehicle at a service station with its keys in the ignition and using the vehicle to transport to destinations where he committed other offences. The vehicle was recovered undamaged.

The common assault count concerns his spitting at a news cameraman after his apprehension on the present matters. The applicant wound down the window of the vehicle in which he was being driven, threatened to break the man's camera and then spat at him and struck him on the body and left hand.

The principal submission of Mr Moynihan for the applicant is that his Honour erred in declaring the applicant to have committed a serious violent offence and alternatively if such declaration were to be made the sentence was above the appropriate range. While conceding that the discretion to make such a declaration is unfettered he submitted that in relation to armed robbery offences there needs to be some exceptional or special feature before the discretion is exercised.

I do not think that armed robbery cases fall into any special category for the exercise of the discretion conferred by Part 9A of the Penalties and Sentences Act. It is true that examples may readily be found of convictions for armed robbery where it was considered that there was no adequate basis on which to exercise the discretion.

Generally speaking, a serious violent offender declaration may be appropriate when a need is perceived to protect the community and where circumstances of the commission of the offence and particularly the violence accompanying its commission may make such a declaration appropriate. A single isolated act of violence may sometimes be thought to be less likely to attract a declaration than a case involving repeated commission of offences or a case where an offender's criminal history is one that tends to show the offence in a serious light so that a need is perceived to protect the community. These are mere random observations on the application of an unfettered discretion.

It is true that the evidence did not disclose whether the syringe was actually filled with infected blood or some other substance. In the nature of things it would be difficult to obtain such evidence unless some admission was made by the offender. But more importantly the victims could hardly be expected to assume it was anything else.

The aftermath of all this is difficult to gauge. Only one victim impact statement could be obtained. That statement records initial anger and later anxiety, fear, flashbacks and nightmares.

These were particularly repugnant crimes. Mr Moynihan, however, submitted that the substantial cause of the offending behaviour was the applicant's addiction to heroin and that his offending was a secondary consequence of desperation caused by that human weakness. He therefore sought to identify the applicant's weakness of character as that of a drug addict rather than that of a robber in line with a point identified in R v. Hammond [1996] QCA 508; [1997] 2 Qd.R 195, 199. However, nothing is known of the applicant's descent into drug addiction or whether an ordered life was lost through it. The general rule is that it cannot be regarded as an excuse or even a mitigating factor. Even if the applicant fits into the special mould identified in Hammond this does not in the end assist him in relation to the making of a serious violent offence declaration because he is cut by the second edge recognised in Hammond; namely, the difficulty of permanent rehabilitation of such a person and the risk of associated re-offending.

The nastiness of the conduct suggests that something more than drug addiction should be blamed. It is to be hoped that rehabilitation will be successful and it is noted that his conduct in prison to date has been promising. That, however, is a long way from successful long-term rehabilitation. I note that no expert reports were tendered either in relation to the applicant's past or his future. The need for community protection is a matter that arises in the present case.

Mr Moynihan correctly submitted that the applicant, who is a transsexual, will serve his time in prison with more difficulty than other prisoners. He also referred to the conduct of the applicant as unsophisticated and undisguised, to the relatively short period over which this spate of criminal activity took place, the absence of actual physical violence, the absence of any serious history of violence and the relatively low proceeds from the robberies.

He further submitted or pointed out that the weapon used was a syringe as distinct from a firearm. I find this last submission puzzling and consider the distinction unhelpful. In my view one is as potentially serious as the other.

It was also pointed out that the applicant is relatively young, that he demonstrates some remorse and insight. He is entitled to significant benefit for his plea to the ex officio indictment and to the fact that when apprehended he voluntarily confessed to the other offences.

Despite these features it seems clear that the appropriate range of sentence was between eight and 10 years although some cases might suggest a higher sentence to be possible. Counsel for the Crown on the appeal submitted that the range was 10 to 12 years. Cases such as R v. Matthewson CA 226/2000 30 January 2001, R v. McDonald [2001] QCA 238, and Crossley [1999] QCA 223; (1999) 106 ACR 80, support areas in the area of 10 years even after early pleas of guilty.

It is worthy of note that during the sentencing procedure the prosecutor suggested a range of between eight and 10 years imprisonment with a declaration. Defence counsel also submitted that if his Honour was minded to make such a declaration then the range was eight to 10 years. She further submitted for a recommendation towards the lower end and in particular eight years if his Honour was minded to make the declaration. That was what his Honour did. The submissions and the result were, in my view, in accordance with the range that emerges from the authorities.

Before disposing of this point I should say something about the form in which the declaration is recorded on the indictment. After imposing the various sentences upon the various counts the order concludes "make a declaration that Shannon Richard Keating is a serious violent offender".

A general declaration of this kind is not in accordance with section 161B of the Penalties and Sentences Act. That section authorises a declaration with respect to particular convictions, not a declaration of status of the offender. The legislation authorises a declaration of a "serious violent offence" a term which is defined in section 4. Strictly speaking then the declaration should have declared the convictions on counts 6, 7, 9, 10, 11, 12, 13, 14 and 15 to be convictions of serious violent offences. Such a declaration would not have been appropriate in respect of the other counts.

I turn to the ground that was raised by amendment. Clearly, before sentence, the applicant served eight months for unlawful use of a motor vehicle which was committed in the same spate of criminal activity as that for which the present sentences were imposed. This fact should have been presented to the learned sentencing Judge so that a totality exercise could have been performed. Had this eight months service been taken into account I would expect that the end result in fixing the operative sentence would have been approximately six months less than it was.

For the above reasons I would grant leave to appeal against sentence and would vary the sentences in respect of counts 6, 7, 9, 10, 11, 12, 13, 14 and 15 from eight years to seven and a half years and declare the convictions on those counts to be convictions of serious offences. In all other respects I would confirm the sentences.

McPHERSON JA: I agree. I particularly endorse his Honour's remarks about the form of a declaration in a case of this kind and in other cases that come before the Court and I also agree with his Honour's order in so far as it deals with the question of the offence that was not taken into account on the sentencing in this case.

AMBROSE J: I also agree. I would simply observe that in declaring each of the offences of armed robbery and attempted armed robbery to be a serious offence one is entitled to look at each offence in the context of all the other offences committed over the period of nine days and in my view that must have been the intent of the learned sentencing Judge in imposing the sentence which he did impose.

McPHERSON JA: The order will be as Mr Justice Thomas has expressed it in this matter.

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