5KIPGFD[#WUV.
++
SUPREME COURT OF QUEENSLAND
CITATION: R v Keen [2015] QCA 97
PARTIES: R
v
KEEN, Tahu Sean
(applicant)
FILE NO/S: CA No 62 of 2014
DC No 125 of 2014
DIVISION: Court of Appeal
PROCEEDING: Sentence Application
ORIGINATING
COURT: District Court at Beenleigh – Unreported, 13 March 2014
DELIVERED ON: 5 June 2015
DELIVERED AT: Brisbane
HEARING DATE: 14 May 2015
JUDGES: Holmes and Gotterson JJA and Boddice J
Separate reasons for judgment of each member of the Court,
each concurring as to the order made
ORDER: The application for leave to appeal is refused.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL –
APPEAL AGAINST SENTENCE – GROUNDS FOR
INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE
OR INADEQUATE – where the applicant was sentenced to
eight and a half years imprisonment, with a serious violent
offence declaration, for one count of deprivation of liberty
and one count of malicious act with intent – where the
applicant attacked the complainant with a Samurai sword,
tied his neck and hands with zip ties and left him in a locked
room – where the complainant sustained a number of serious
injuries, including a severe traumatic brain injury – where the
applicant committed the offences in breach of bail and two
suspended sentences – where the applicant had a criminal
history with relevant entries for robbery with actual violence,
assault occasioning bodily harm and burglary –whether the
sentence was manifestly excessive
R v Amery [2011] QCA 383, considered
R v Eade [2005] QCA 148, considered
R v Hasanovic [2010] QCA 337, considered
R v Holland [2008] QCA 200, considered
R v Janz [2008] QCA 55, considered
R v Mikaele [2008] QCA 261, considered
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
2
R v Thompson [1997] QCA 94, considered
COUNSEL: The applicant appeared on his own behalf
B J Power for the respondent
SOLICITORS: The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the
respondent
[1] HOLMES JA: The applicant was sentenced to eight and a half years imprisonment
in respect of one count of malicious act with intent, with a declaration that the
offence was a serious violent offence, and another two years imprisonment,
concurrent, on a further count of deprivation of liberty. He seeks leave to appeal
those sentences.
The circumstances of the offences
[2] According to a statement of facts tendered in the sentencing hearing, the applicant
and his co-accused, Peta-Renee Higgins, had been in a relationship. In annoyance
at some behaviour of the applicant’s, Higgins went to stay with the complainant.
When the applicant collected Higgins from the complainant’s house about a week
later, she alleged the latter had raped her. Surrounding circumstances suggest that
that was untrue, but there is nothing to indicate that the applicant did not believe the
allegation. He contacted various friends, including a man named Palmer, about
means of taking revenge on the complainant. Palmer formed a plan to rob the
complainant, in accordance with which Higgins telephoned him and persuaded him
to come to Palmer’s house at Slacks Creek. A friend of the complainant’s drove
him there because he seemed affected by alcohol.
[3] When they arrived at the Slacks Creek house, the complainant and his friend were
met by Higgins. They accompanied her to a room inside the house where they sat
down with Palmer and another man. Higgins went upstairs to inform the applicant
that the complainant was below. The applicant ran into the room, holding a
Samurai sword with both hands. He yelled “how’s it fucken going?”, and
confronted the complainant, whom he struck to the face three or four times in a
chopping motion. The complainant’s friend tried to push his way out of the room
while yelling at the complainant to do the same and trying to get him out also.
Palmer and the applicant pulled the complainant back into the room while the
complainant’s friend was assaulted, and then put in a headlock by Palmer. His calls
for help drew the attention of neighbours and he was released. He was able to call
police, but they took over an hour to arrive.
[4] Meanwhile, the applicant and Higgins went to a neighbouring house, leaving the
complainant locked in the room in which he was assaulted. The applicant informed
the neighbour that they had “flogged” or “bashed” a man for raping his girlfriend.
He and Higgins removed their shoes and put them in a bin; the applicant’s shoes
had the complainant’s blood on them. They walked away from the area together.
[5] The police, when they eventually attended, found the complainant on his knees in
the room where he had been left. He was described as being in distress,
unresponsive, and bleeding heavily from the face and arms. He had a zip tie around
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
3
his neck with a rag at the front of it and two zip ties on each wrist. There was blood
on a chair and a tooth was lying on the floor.
The complainant’s injuries
[6] The complainant was taken to hospital where he was placed in an induced coma for
five days. He had sustained bruising to his neck, lacerations to his right forearm
and elbow, extensive facial fractures, an acute subdural haemorrhage, and a bilateral
collapse of the lower lobes of his lung. His arm lacerations were debrided and
sutured and he underwent two courses of surgery involving internal fixation of his
facial fractures. He suffered post traumatic amnesia, aspiration pneumonia, and a
severe traumatic brain injury. When last reviewed medically, he was still reliant on
memory aids, had difficulty with cognition, and suffered mood changes which
affected his daily functioning. He required support from his father to remain living in
the community.
[7] More current information was provided by the complainant’s victim impact
statement. He said that his facial bones were held together by staples, and his jaw
by steel plates. He had lost all but five of his teeth and would need dentures for the
rest of his life. He had lost feeling in the bottom right side of his face, which caused
him to dribble when he ate or drank. Forty per cent of the vision in his right eye
was gone and he had suffered a loss of night vision. His balance was affected. He
suffered short term and long term memory loss which, combined with a loss of
feeling in his right hand, meant that he could no longer work in his trade as a
mechanic. He experienced difficulty in comprehension, had lost self-confidence
and was no longer able to maintain a social life. He had lost his means of earning
an income, and was left in debt as a result of the time spent in recuperating. He was
no longer in a position to rent a dwelling, and would need Queensland Housing
accommodation.
The applicant’s criminal history
[8] The applicant was 23 years old when the offence was committed. Nothing was put
in mitigation other than that he had pleaded guilty and had spent some time in
custody which could not be declared. It was not suggested that he was remorseful
or had any redeeming features; no references were tendered; and nothing was put
about his background which might shed any light on his conduct. His criminal
history extended back to 2005, the year he turned 17, beginning with relatively low
level offences of dishonesty for which he was generally convicted and fined or, in
one instance after breaching probation, placed on a suspended sentence.
[9] In February 2006, the applicant committed an offence of robbery with actual
violence while armed and in company, for which he was sentenced in December
2006. He was part of a group of four, the others younger than he, which confronted
two teenagers and robbed them. One of the group was holding an iron bar, and the
applicant, a hatchet. They demanded the complainants’ money and mobile phones,
but did not physically harm them. Apparently in the interests of maintaining parity
with the sentences of the applicant’s juvenile co-offenders, the sentencing judge did
not record any conviction against the applicant, instead placing him on orders for
two years probation and 125 hours community service.
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
4
[10] The applicant offended at a lower level for the next 18 months. He was convicted
of offences of possessing utensils and committing public nuisance, as well as being
dealt with for a breach of suspended sentence, a breach of a probation order, and a
failure to appear in accordance with a bail undertaking. At the end of May 2008,
however, he was dealt with for offences committed in 2006: two assaults
occasioning bodily harm, and one count of burglary. The first in time of the assaults
involved the applicant’s punching a schoolboy in the face, for no other reason than
that he was in a bad mood. The later offences of assault and burglary involved his
going to a neighbour’s house, forcing his way in, punching him ten times and biting
him. Those offences had been committed after he was dealt with for the armed
robbery. He had not complied with the probation order then imposed and had not
completed any of the 125 hours community service. The applicant was ordered to
serve the whole of a two month sentence of suspended imprisonment imposed in
mid-2006 for wilful damage, which the offences breached; the non-custodial orders
made in respect of the armed robbery offence were set aside and a sentence of
18 months imprisonment substituted; and on each of the assaults and the burglary,
he was sentenced to a further two years imprisonment, to be served cumulatively.
His parole eligibility date was fixed six months after the date of sentence.
[11] It is not apparent from the record when the applicant actually received parole, but
his offending re-commenced in November 2010 with a series of frauds and
receiving tainted property offences. In early 2011, he was given a sentence of six
months imprisonment suspended for two years, of which he subsequently had to
serve a month when he breached it. In May 2012, he was sentenced to one month
imprisonment, suspended for 12 months, on a charge of possessing property
suspected of having been used in connection with the commission of a drug offence.
[12] The offences in respect of which the applicant seeks leave to appeal were
committed on 31 August 2012. He was remanded in custody from 12 September
2012. In October 2012, he was dealt with for a number of offences of fraud and
receiving tainted property committed in 2011 and earlier in 2012. (He had been
arrested and given bail on the earliest of them in November 2011, so that he was on
bail when he committed the present offences.) He was sentenced to 12 months
imprisonment and the 2012 suspended sentence was invoked. He was given a
parole release date of 9 February 2013. The full time release date on that sentence
was 9 October 2013.
[13] The net result was that when the applicant was sentenced in March 2014, 162 days
were declarable as having been served in respect of the present offences, while another
eight months was time for which he might, but for them, have been released on
parole.
The sentencing remarks
[14] The sentencing judge remarked that when the offences were committed the
applicant was on parole for matters dealt with in the Magistrates Court. That in fact
was not quite correct: at the date of the offending the applicant was on bail and was
subject to both the 2011 and 2012 suspended sentences which were subsequently
invoked, his parole release date being set subsequent to the offending. The error is
of little moment, however; what matters is that the applicant offended in breach of
not one but three court orders.
[15] His Honour detailed the injuries inflicted on the complainant. He observed that the
offence had commenced with the applicant’s use of a Samurai sword to strike the
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
5
complainant, and that his involvement in what occurred after that could be inferred
from the catastrophic range of injuries the complainant had suffered. The offending
was of such a serious nature that a declaration that the applicant was convicted of
a serious violent offence was warranted. His Honour identified as significant a number of
features of the offending: the use of a weapon; the use of ties to bind the
complainant; the nature of the injuries, including a brain injury as well as extensive
facial injuries; the catastrophic outcome for the complainant; the way in which the
events occurred; and the context of the applicant’s criminal history, including
offences of violence.
[16] The sentencing judge concluded that a head sentence of nine and a half years
imprisonment was appropriate, notwithstanding the applicant’s youth. However,
giving the applicant the benefit of the eight months already served, his Honour
reduced that sentence to eight and a half years, making the serious violent offence
declaration which required that 80 per cent of the sentence be served. The sentence
of two years imprisonment imposed in respect of the relevant deprivation of liberty
charge was to be served concurrently.
The applicant’s submissions as to the basis of sentencing
[17] A number of the applicant’s submissions involved contentions that the statement of
facts tendered below was wrong. In particular, the applicant now maintains there is
no evidence that a weapon was used and none was found. That seems to overlook
the account of the complainant’s friend, who witnessed the beginning of the attack.
(The complainant had no recall of the events.) He also points out, no doubt
correctly, that if the complainant were hit in the face with the sharp side of a
Samurai sword he would have massive lacerations. He assured the Court that he
would not use the blunt side of a sword if he were assaulting someone, when that
possibility was put to him. I am in no position to assess the accuracy of that rather
alarming statement, but I note that elsewhere in his submissions the applicant says
that due to his use of ice and speed on the day in question he can remember only a
very little of the day of the offending. It does not seem, then, that the applicant is a
reliable source of information as to how the assault took place.
[18] In any event, the statement of facts, which included the description of the
applicant’s delivering blows to the complainant’s face with a sword, was put before
the court below without objection, and the applicant’s counsel specifically said that
he had nothing to add to those facts. The applicant now complains of what he says
was his legal representatives’ failure to act on instructions. He had told them that
there was not enough evidence to prove that he had used a sword, and his counsel
failed to put before the court the fact that he was a drug addict and under the
influence of amphetamines on the day in question. There was no evidence before
this court as to what the applicant’s instructions to his legal representatives were,
but as already observed, given his inability to remember events, it is unlikely he
could have given positive instructions as to what occurred. A submission that the
assault was committed under the influence of amphetamines seems unlikely to have
resulted in a more favourable view being taken of his offending.
[19] The applicant was properly sentenced in accordance with the accepted statement of
facts.
Comparable authorities relied on by the applicant
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
6
[20] The applicant relies on three decisions as demonstrating that the sentence imposed
on him was manifestly excessive: R v Thompson,1 R v Holland2 and R v Amery3 . In
Thompson, the applicant was sentenced to imprisonment for seven years after being
convicted by a jury of wounding with intent to do grievous bodily harm. He had
been acquitted of attempted murder, and the sentencing judge took into account that
he had indicated a willingness to plead to the lesser offence. That applicant had
previously been convicted of assault, deprivation of liberty and breach of a domestic
violence order which his former wife had obtained against him, resulting in his
being sentenced to an intensive correction order. He was still subject to that order
when he committed the wounding offence. Although a domestic violence order was
still in place, he and his wife were (apparently with her consent) in a vehicle with
their children. They argued; the applicant became upset and began punching her
and stabbing her with a screwdriver, causing three puncture wounds to her head and
one to her chest. Bystanders intervened and ended the assault. This Court refused
an application for leave to appeal against sentence.
[21] In Holland, the 43 year old appellant was convicted, after a trial, of grievous bodily
harm with intent. He was sentenced to five years imprisonment cumulative on an
earlier sentence of 12 months imprisonment for assault occasioning bodily harm.
The appellant had been staying in a house where the complainant and some other
people lived. He accused the complainant of being a “pervert” because he believed
he had watched him and a female friend while they were partially undressed.
Holland punched the complainant, who was smaller and older than he, several times
and then kicked him three or four times around the neck, face and jaw with his
heavy boots. The complainant’s jaw was broken in a number of places and required
surgery. Keane JA observed that there was a range of sentencing in cases where
“grievous bodily harm has been deliberately inflicted by the use of a weapon by a mature
offender with a record of personal violence” of between four and seven years
imprisonment. The appellant’s boots were to be regarded as a weapon. The
sentence of five years imprisonment cumulative on the earlier sentence was well
within the established range. McMurdo P described the sentence as at the high end
of an appropriate sentencing range bearing in mind the injuries, the absence of any
weapon such as a knife or crow bar and that there had been some provocation from
the victim. However, the appellant had shown no sign of remorse, and it was
fortunate that the complainant’s injuries were not worse. Fryberg J endorsed those
remarks.
[22] In R v Amery, the applicant was, like the applicant in Thompson, subject to a
domestic violence order when he argued with his de facto wife, angered by her
laughing when he said he would not be able to see his daughter because of the
order. He obtained a 10 pound sledgehammer from the back yard and hit her head
twice with it. He then called the emergency number and told police he had
assaulted the complainant. She sustained two deep lacerations to her skull, a skull
fracture and damage to two teeth. She underwent surgery to remove bone fragments
in her skull, and a dural tear was repaired. Remarkably, she made a full recovery
from her injuries. That applicant was 47 years old and had a criminal history which
included three armed robberies committed in his twenties. After his release from
imprisonment on the last of them, he had obtained employment in the building
1
[1997] QCA 94.
2
[2008] QCA 200.
3
[2011] QCA 383.
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
7
industry. He had, however, committed a breach of a domestic violence order in
1997, a year after his release from prison, against the same complainant. He had
expressed remorse to her in respect of the current offence and she was supportive of
him on sentence. The sentencing judge accepted a somewhat questionable claim
that the applicant was affected by an adverse reaction to medication at the time he
committed the offence. He was sentenced to eight years imprisonment with no
declaration of a serious violent offence, but no parole eligibility date was set.
The sentence was varied only by reducing it to seven years seven months, to
recognise a period of pre-sentence custody not taken into account by the sentencing
judge.
Comparable authorities relied on by the respondent
[23] The Crown relied on three cases which had been referred to at first instance – R v
Mikaele,4 R v Janz5 and R v Hasanovic6 – and a fourth case, R v Eade.7 Each of
those cases involved a youthful offender who had pleaded guilty to grievous bodily
harm with intent, having committed extremely serious physical injury. The
applicant in Eade was part of a group of youths driving around the streets of a
provincial town who yelled abuse at two male pedestrians. One of them approached
the applicant’s vehicle and began to argue with the youths. The other man, the
complainant, seeing one of the group reaching for something under the seat, leant
on the door of the applicant’s vehicle to try to stop the occupants from getting out, but
dented the door. The applicant attacked him with a hockey stick, inflicting repeated
blows on his shoulder, torso and head, and then, with his friends, kicked him about
the head. His companion was also assaulted. The applicant got back into his vehicle
and reversed it over the complainant.
[24] The complainant sustained a closed head injury, cerebral oedema, extensive facial
fractures and a fractured jaw. He was left with a loss of vision in one eye, scarring,
cosmetic problems requiring further surgery and a misalignment of his jaw which
caused him difficulty in eating. He had worked in the construction industry but
could no longer do so. There is no suggestion, however, that he had suffered any
enduring brain damage. The applicant in Eade was 17 and had no criminal history.
He had a girlfriend and a small child. He was from a dysfunctional background,
and was said to suffer from a poly-substance dependence, and a mood disorder. The
offending was fuelled by ingestion of marijuana and alcohol; his blood alcohol
concentration was .129 when he was breathalysed after the events. This Court held
that a sentence of 10 years imprisonment with the consequential automatic declaration
of a serious violent offence was not manifestly excessive.
[25] R v Mikaele also involved a 17 year old applicant. He was part of a group of five
youths which attacked a man leaving a train station at night, stealing his mobile
phone. Others punched the victim and kicked him in the head when he fell. The
applicant admitted to kicking the man a number of times, particularly in his head,
and punching him. After the group had moved away and he lay unconscious, the
applicant returned and attacked him again, stomping on his head. The victim
suffered a closed brain injury and a blood clot in his lung. He suffered post
traumatic amnesia over a three week period. At the time of sentencing, he was still
4
[2008] QCA 261.
5
[2008] QCA 55.
6
[2010] QCA 337.
7
[2005] QCA 148.
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
8
suffering from memory and concentration deficits. His family had suffered from his
inability to work for a period as a result of his injuries. The applicant had
cooperated with the police, made full admissions and entered an early plea of guilty.
He was sentenced to nine years imprisonment with a declaration that the offence
was a serious violent offence. At the same time he was given concurrent sentences
of five years imprisonment for three offences of robbery.
[26] On appeal, the applicant in Mikaele submitted that the declaration should not have
been made. The offence was not unusual; the complainant’s injuries were the result
of a joint attack which the applicant had not initiated; the assault was spontaneous,
not a premeditated act of revenge; and it did not involve weapons. Rejecting that
submission, Mackenzie AJA, with whom the other members of the Court agreed,
observed that the applicant’s behaviour, in joining in the assault and returning to
inflict more injuries after the others had ceased, demonstrated an extraordinary
degree of callousness and a disregard for the prospect of the victim’s being
seriously injured. The nature of the attack warranted the appellation of a serious
violent offence.
[27] In Hasanovic, the applicant, another 17 year old, pleaded guilty to a number of
offences which included five burglaries and stealing, fraud and entering premises
with intent and half a dozen robbery charges, one of them an armed robbery, and
two attempted armed robberies, in company. Significantly for present purposes, he
was charged, with co-offenders, with grievously bodily harm with intent and
wounding. They had been told by one of their number that his sister had been raped
by a student at a high school. The applicant armed himself with a meat cleaver and,
with seven other members of a street gang to which he belonged, went to the school.
They approached a group of year 10 students. The appellant swung the meat
cleaver, striking one boy on the cheek and causing him a wound which required 60
stitches and plastic surgery and left him with facial scarring. When another boy
attempted to flee, the applicant struck him in the back with the meat cleaver,
causing lacerations close to his spine.
[28] That applicant was a Bosnian refugee whose family had undergone considerable
loss and hardship, including the death of his father. He had undergone physical
abuse at the hands of his step-father. He had had difficulties at school because he
could not speak English, and had left school early. The sentencing judge started
from the position that the appropriate sentence for the count of grievous bodily
harm with intent was eight years; treating all offences globally, he imposed a
sentence of nine years imprisonment, with a declaration that the offence of grievous
bodily harm with intent was a serious violent offence. On the applicant’s
application for leave to appeal, this Court was referred to Mikaele and Eade.
Having regard to those cases, it concluded that the sentence as a whole was in an
appropriate range and that the serious violent offence declaration was warranted.
[29] In R v Janz, the applicant sought an extension of time within which to appeal a
sentence of ten and a half years imprisonment for grievous bodily harm with intent.
He was 19 at the time of the offence and suffered from cerebral palsy. He was
sharing a unit with another sufferer of the condition who was confined to a
wheelchair. Because of some disagreement, he procured an acquaintance to hurt the
complainant, envisaging that that might involve serious life threatening injury. The
acquaintance cut the complainant’s throat and stabbed him in the back three times. The
complainant nonetheless was able to obtain assistance. His vocal cords had partly
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
5KIPGFD[#WUV.++
9
been severed, leaving him with difficulty using his voice. He lost a good deal of his
existing independence as a result of the attack. This Court concluded that although
the sentence was a lengthy one, it was not manifestly excessive; the application for
an extension of time was refused.
Discussion
[30] The sentencing judge identified many aspects of the present offending which
pointed to the need for strong personal as well as general deterrence. He did not
include, but could have, the fact that the attack on the complainant was
premeditated, planned and protracted. That feature contrasts with the spontaneous
character of the violence inflicted in the cases on which the applicant relied; and in
none of those cases was the victim left with the kind of continuing, major and
disabling physical damage which the complainant here has suffered. The applicant’s
violence was not entirely gratuitous, in that he perceived the complainant to have
wronged Higgins, but his response was entirely unjustifiable. The complainant was
given no opportunity to defend himself, verbally or physically. Catastrophic
injuries were inflicted on him, after which he was left tied up in a locked room, with
the applicant evidently indifferent to whether he lived or died.
[31] In the applicant’s favour were his youth and the fact that he had pleaded guilty. His
plea saved the justice system the expense of a trial, but the case against him was strong:
the complainant’s friend had identified him, Higgins had given a statement about
the background to the offending, the complainant’s blood was found on his shoes,
and he had made an admission (in the form of a boast) to the neighbour about
bashing or flogging the complainant. He had not (and has not) demonstrated any
hint of remorse, notwithstanding the life-altering injuries inflicted on the
complainant. Although young, he had amassed a record of offending with instances
of mindless violence, and court orders plainly did not deter him from further
offences; which suggested poor prospects of rehabilitation. The cases relied on by
the respondent demonstrate that sentences of similar proportions to that imposed by
the sentencing judge have been imposed on much younger offenders involved in
crimes of similar savagery.
Conclusion
[32] The sentence imposed was not lenient, but it was not manifestly excessive. I would
refuse the application for leave to appeal.
[33] GOTTERSON JA: I agree with the order proposed by Holmes JA and with the
reasons given by her Honour.
[34] BODDICE J: I have read the reasons for the judgment of Holmes JA. I agree with
those reasons and proposed order.
4GVTKGXGFHTQO#WUV.++QP#WIWUVCV 8GTKH[XGTUKQP
