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District Court 18 June 2018

R v Keenes

[2018] NSWDC 533

Traffic & drivingFirearms & weaponsPublic order & justice offences
CRIME SENTENCE POSSESS UNREGISTERED FIREARMS INTIMIDATION DRIVE WHILE DISQUALIFIED OFFENDER

Citation: R v Keenes [2018] NSWDC 533
Court: District Court of New South Wales
Date: 18 June 2018
Judge: Norrish QC DCJ

Background

The offender, Joseph Keenes, appeared for sentence in respect of a series of offences arising from conduct in the early hours of 23 July 2017 at Howlong, a township near Albury in regional New South Wales. The offending was described as motivated by misguided vigilantism and was carried out while the offender was intoxicated. A co-offender, Shane Parker, had been sentenced by the same judge earlier that day.

The offending involved possessing and using an unregistered sawn-off double-barrel shotgun, intimidating two named individuals, damaging property, and driving while disqualified. Several additional regulatory offences were dealt with on a section 166 certificate, including failing to store a firearm safely, using an unregistered and uninsured vehicle, and possessing ammunition without a licence.

Keenes pleaded guilty to all offences at the Local Court. He also cooperated with police by making admissions, identifying the location of the firearm, and nominating his co-offender Parker, without whose identification Parker would very likely never have been charged.

  • What were the appropriate sentences across a cluster of overlapping offences involving firearms, intimidation, and property damage?
  • How should the court treat the substantial overlap in criminality between the most serious charge (using an offensive weapon with intent to commit an indictable offence) and the firearms and intimidation offences?
  • What discount was appropriate for guilty pleas and cooperation with police?
  • Whether "special circumstances" existed under the Crimes (Sentencing Procedure) Act 1999 to adjust the balance between the non-parole period and the total sentence.
  • How the principle of parity applied given that a co-offender had been sentenced for the one charge they shared.

Decision

The court identified the use of an offensive weapon (a sawn-off shotgun) with intent to commit the indictable offence of intimidation, contrary to section 33B(1) of the Crimes Act 1900, as the most serious offence. Although several charges carried maximum penalties of 14 years, the section 33B(1) offence was treated as the gravest in all the circumstances. The court noted significant overlap between the criminality involved in this charge and several of the firearms and intimidation offences, which was reflected in the structuring of the sentences.

The court distinguished Keenes' position from that of his co-offender Parker. Parker's involvement was described as peripheral: the victims were unaware of his presence, and only Keenes' cooperation had made Parker's prosecution possible. Keenes, by contrast, had initiated the conduct, possessed the firearm, and drove the vehicle while disqualified. These distinctions justified materially different sentencing outcomes despite the shared charge.

A discount of 25% was applied for the utilitarian value of the guilty pleas, consistent with the guideline judgment in Thomson and Houlton. A further discount was applied for cooperation with police, bringing the combined discount to 35% on the most serious offence. The court found special circumstances warranting a departure from the standard non-parole period ratio, given the number of offences, the need for an extended period of supervision on parole, and the overall complexity of the sentencing exercise.

For the three minor regulatory offences on the section 166 certificate (unregistered vehicle, uninsured vehicle, and unlicensed ammunition possession), the court recorded convictions but imposed no further punishment under section 10A of the Crimes (Sentencing Procedure) Act 1999, noting the inexpediency of adding fines to a man who would have no means to pay them upon release.

Orders Made

  • Offensive weapon with intent (s 33B(1)): Non-parole period of 2 years 7 months, commencing 25 July 2017; balance of sentence of 1 year 10 months.
  • Driving while disqualified: Fixed term of 6 months, commencing 25 July 2017, expiring 24 January 2018; further disqualification from holding a driver's licence for 2 years, cumulative on existing disqualification.
  • Unregistered motor vehicle and uninsured motor vehicle: Offences proved; conviction recorded under s 10A; no punishment imposed; matters dismissed.
  • Possession of ammunition: Offence proved; conviction recorded under s 10A; no punishment imposed.
  • Forfeiture: The sawn-off double-barrel shotgun ordered forfeited.
  • Eligible for release to parole on 24 February 2020.

(Note: The sentencing orders for several firearms and intimidation charges were addressed in the portion of the judgment not reproduced in the available text.)

Key Takeaways

  • Where multiple charges arise from a single course of criminal conduct, the District Court applied the totality principle carefully, recognising that the criminality in several firearms charges was largely or wholly subsumed by the most serious offence of using an offensive weapon with intent to commit an indictable offence.

  • A combined discount of 35% was available where an offender both pleaded guilty at the earliest opportunity and provided meaningful cooperation with police, including identifying a co-offender and offering to give evidence against them.

  • The parity principle required the court to justify differences in sentence between co-offenders. Here, marked distinctions in culpability, particularly the extent of each offender's involvement and the fact that one had been undetected but for the other's cooperation, supported materially different outcomes.

  • Special circumstances under the Crimes (Sentencing Procedure) Act 1999 can be established by the totality of the sentencing task itself, including the multiplicity of offences and the need for extended post-release supervision.

  • Under section 10A of the Crimes (Sentencing Procedure) Act 1999, a court may record a conviction while declining to impose any punishment where it is satisfied that punishment would be inexpedient in all the circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 33B(1), 93I(2), 195(1)(a)
- Firearms Act 1996 (NSW), ss 7(1), 36(1)
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13(1)
- Criminal Procedure Act 1986 (NSW), ss 166, 167
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases:
- De La Rosa v DPP [2010] NSWCCA 194
- Hammoud v R (2000) 118 A Crim R 66
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Thomson and Houlton (1999) (guideline judgment on plea discounts)