Citation: R v Keane; R v Keane; R v Ponting [2019] NSWDC 591
Court: District Court of New South Wales
Date: 11 October 2019
Judge: Weinstein SC DCJ
Background
Three co-offenders, a mother (Jodi Keane), her adult daughter (Jasmine Keane), and the daughter's then-boyfriend (Luke Ponting), were sentenced for offences arising from a single incident in August 2017. The victim, a 32-year-old woman with an intellectual impairment who received a disability support pension, was lured to the mother's home under the pretence of socialising. She had never met any of the offenders before.
Once inside, the victim spent several hours at the premises. The situation turned violent when the mother became convinced someone had taken her prescription tablets. She assaulted the victim, punching her to the chin and face, and then robbed her of her bank card and identification documents. The daughter subsequently forced the victim, while isolated in a bathroom, to unlock her mobile banking application, then took the phone. The daughter and her boyfriend later used the phone to withdraw $470 from the victim's bank account at an ATM. The victim left the house on foot and called emergency services from a payphone at Miranda train station, describing the ordeal as being "mugged and held hostage."
The three offenders faced separate but related charges. Jodi Keane pleaded guilty to robbery and assault occasioning actual bodily harm. Jasmine Keane pleaded guilty to robbery. Luke Ponting pleaded guilty to dishonestly obtaining property by deception (the ATM withdrawal).
Legal Issues
- What sentences were appropriate for each offender, having regard to the nature and circumstances of the offences and the purposes of sentencing under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)?
- Whether non-custodial or non-full-time custodial orders were appropriate, given each offender's personal circumstances, prospects of rehabilitation, and remorse.
- Whether special circumstances existed justifying an adjustment to the standard ratio between non-parole period and head sentence.
- How the parity principle applied across three co-offenders with meaningfully different roles and culpability.
Decision
The court sentenced each offender separately, taking into account their individual roles and personal circumstances. Jodi Keane, as the primary aggressor who physically assaulted the victim and committed the initial robbery, bore the greatest culpability. Jasmine Keane was involved in the subsequent robbery in the bathroom and in accessing the victim's banking details. Ponting played a supporting role in the ATM withdrawal and was assessed as having the least culpability of the three.
The court identified a number of aggravating features across the offending: the victim's particular vulnerability due to her intellectual impairment, the fact that offenders had invited the victim into their home thereby placing her in a position of trust, the use of physical violence, the targeting of the victim's financial resources, and the co-ordinated nature of the conduct across multiple offenders. The victim's distress and physical injuries were also noted.
Each offender's guilty plea, albeit not at the earliest opportunity, was recognised as relevant to the discount applied. The court accepted that all three offenders had demonstrated some degree of insight and remorse, and that prospects of rehabilitation were reasonably favourable, particularly for Ponting, who had no significant prior history and was considered unlikely to reoffend.
The court found that full-time imprisonment was not required in any of the three cases, though the reasons available in the excerpt are most fully stated in relation to Ponting. For Ponting specifically, the court found a Community Correction Order (CCO) was appropriate. The court noted that it was not satisfied, after considering all alternatives, that no penalty other than imprisonment was appropriate, despite the breach of prior bonds.
Orders Made
Orders for Luke Ponting (the extract provided covers Ponting's orders in full):
- Convicted of obtaining benefit by deception contrary to s 192E(1) of the Crimes Act 1900 (NSW)
- Community Correction Order for 18 months, commencing 11 October 2019 and expiring 10 April 2021
- Must not commit any further offence
- Must abstain from drugs other than those prescribed by a medical practitioner
- Must attend a general practitioner within 30 days, enter into a Mental Health Plan, and attend a psychologist for 10 Medicare-funded sessions
- Must undertake 100 hours of community service work
- Must report to Bankstown Community Corrections within 7 days (by 18 October 2019)
- Solicitor gave an undertaking that $470 would be repaid as restitution to the victim or her bank
Note: The full orders for Jodi Keane and Jasmine Keane were not included in the text provided for this summary.
Key Takeaways
- A victim's intellectual impairment and vulnerability were treated as significant aggravating factors in assessing the seriousness of robbery and assault offences, particularly where that vulnerability was exploited through an invitation to the offenders' home.
- The parity principle required the court to calibrate sentences across co-offenders whose roles differed substantially, with the physical aggressor (the mother) attracting the highest culpability and the peripheral participant (the boyfriend) the lowest.
- Full-time imprisonment was not imposed on Ponting, even where prior bonds had been breached, because the court found his rehabilitation prospects were strong, he was unlikely to reoffend, and he demonstrated genuine remorse and insight.
- Under s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW), a court must be satisfied that no penalty other than imprisonment is appropriate before imposing a term of full-time custody; the existence of prior bond breaches does not automatically make that threshold met.
- Guilty pleas entered on the second day of trial, rather than at the earliest opportunity, still attracted a discount, though the extent of that discount reflects the lateness of the plea.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 59(1) (assault occasioning actual bodily harm), 94(a) (robbery), 192E(1) (dishonestly obtain financial advantage by deception)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A (purposes of sentencing), 5 (imprisonment as last resort), 7(1), 21A (aggravating and mitigating factors), 53A, 66
Cases:
- Cahyadi v R [2007] NSWCCA 1
- Casella v R [2019] NSWCCA 201
- Green v R; Quinn v R (2011) 244 CLR 462
- Markarian v The Queen [2005] HCA 25
- Mill v The Queen (1988) 166 CLR 59
- Muldrock v The Queen (2011) 244 CLR 120
- R v Fangaloka [2019] NSWCCA 173
- R v Jarrold [2010] NSWCCA 69
- Veen v The Queen (No 2) (1988) 164 CLR 465