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Supreme Court 21 March 2003

Regina v Keir

[2003] NSWSC 140

HomicideDomestic & family violence
CRIMINAL PRACTICE & PROCEDURE DOMESTIC MURDER WHETHER WORST CLASS OF CASE EFFECT OF DELAY IN PROSECUTION

Citation: Regina v Keir [2003] NSWSC 140
Court: Supreme Court of New South Wales, Common Law Division
Date: 21 March 2003
Judge(s): Kirby J

Background

Thomas Andrew Keir was convicted by jury on 17 September 2002 of the murder of his wife, Jean Angela Keir. The killing occurred in February 1988, but prosecution did not proceed until significantly later, meaning the offender had been in custody from 20 February 1998 by the time of sentencing.

The marriage had been characterised by a pattern of controlling behaviour, threats, and physical violence. Keir had repeatedly threatened to kill his wife if she left him or became involved with another man. Jean had a brief extramarital encounter in 1987 and disclosed it to her husband, after which she sought to leave the relationship but feared doing so.

This was Keir's second trial for the murder. Adams J had sentenced him after the first trial, imposing 24 years imprisonment with a minimum term of 18 years. Kirby J was required to pass sentence afresh, including determining the relevant facts consistent with the jury verdict and assessing the objective and subjective features of the case.

  • Whether the murder fell within the "worst class of case" for sentencing purposes
  • What weight to give the established pattern of domestic violence and controlling behaviour as an aggravating feature
  • How the delay between the offence (1988) and the commencement of custody (1998) should affect the sentence
  • Whether special circumstances existed to justify departure from the standard non-parole period proportion under the Crimes (Sentencing Procedure) Act 1999
  • What sentence was appropriate having regard to both the objective gravity of the offence and Keir's subjective circumstances, including his absence of serious prior criminal convictions

Decision

Kirby J accepted the factual findings consistent with the jury's verdict, applying the standard that adverse facts must be proved beyond reasonable doubt and facts favourable to the offender proved on the balance of probabilities. His Honour found that Keir had subjected his wife to prolonged controlling behaviour and physical violence over the course of the marriage, going well beyond what Keir himself had acknowledged in evidence.

On the central question of classification, Kirby J departed from the approach taken by Adams J at the first trial. Adams J had identified the absence of a proven intent to kill as the principal factor removing the case from the worst class. Kirby J took a broader view, concluding that even if intent to kill had been established, this case would not have fallen within the worst class as that category has been interpreted in the case law. His Honour acknowledged the brutal and awful nature of the crime without diminishing it, but considered the relevant authorities pointed against that classification.

Kirby J found that a sentence of 22 years with a non-parole period of 16 years was appropriate. This represented a modest reduction from the sentence imposed at the first trial. His Honour made a finding of special circumstances to justify a slight departure from the statutory proportion between the non-parole period and the total sentence, on the basis that Keir would benefit from an extended period of supervision upon release.

The sentence was ordered to commence from 20 February 1998, the date on which Keir had entered custody.

Orders Made

  • Keir sentenced to 22 years imprisonment, commencing 20 February 1998 and expiring 19 February 2020
  • Non-parole period of 16 years, making Keir eligible for release on parole from 20 February 2014
  • Special circumstances found, justifying departure from the standard non-parole period proportion under the Crimes (Sentencing Procedure) Act 1999

Key Takeaways

  • Classification of a domestic murder as a "worst class of case" requires more than brutal facts alone; Kirby J confirmed that the category, as interpreted in the case law, is reserved for cases meeting a high threshold, and this offence did not reach it even on the most adverse findings.
  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be justified where extended post-release supervision is considered beneficial to the offender's rehabilitation.
  • Where a retrial follows a successful appeal, the sentencing judge conducts an independent assessment of facts and may reach different conclusions from the original sentencing judge, as occurred here on the worst-case classification question.
  • Victim impact material from family members is a recognised part of the sentencing process, but must be approached in accordance with the principles established in R v Previtera (1997) 94 A Crim R 76.
  • The date from which a sentence commences is fixed by reference to when the offender entered custody, not the date of the sentencing judgment, even where considerable time has elapsed between those two points.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44(2)

Cases
- 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 October 1995)
- R v McDonald (CCA, unreported, 18 August 1994)
- R v Rose [2002] NSWSC 26
- Regina v V (CCA, unreported, 24 February 1998)
- 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 (first trial sentencing)
- R v Twala (CCA, unreported, 4 November 1994)
- R v Alexander (1999) 107 A Crim R 449
- R v Adam [1999] NSWSC 144