District Court New South Wales Medium Neutral Citation: R v Keegan [2022] NSWDC 715 Hearing dates: 12 December 2022 Date of orders: 12 December 2022 Decision date: 12 December 2022 Jurisdiction: Criminal Before: Haesler SC DCJ Decision: Aggregate sentence of four years and six months. Non‑parole period of two years and six months. Catchwords: CRIME – Aggravated break & enter commit serious indictable offence - Assault occasioning actual bodily harm in company of other(s) SENTENCING - Relevant factors on sentence- early guilty plea - home invasion - in company - no apparent planning - serious harm inflicted - weapon used - good Samaritan assaulted – offender's deprived background- young immature offender - how to break a pattern of behaviour of "getting drunk and doing dumb shit," leading the commission of crimes, arrest and gaol – special circumstances Legislation Cited: Crimes Act 1900 Category: Sentence Parties: Ryan Keegan (the offender) Director of Public Prosecutions Representation: Solicitors: Mr M Kwan (for the offender) Mr T George (for Director of Public Prosecutions) File Number(s): 2012/00367057 SENTENCE – EX TEMPORE REVISED Introduction 1. When he was before the Local Court, Ryan Keegan, indicated that he would plead guilty to two very serious offences: 1. Aggravated break, enter and commit the serious indictable offence of reckless wounding; with a circumstance of aggravation being he was in company. The offence carries a maximum penalty of 20 years imprisonment and for an offence that, taking into account only objective features, falls in the middle of the range, Parliament fixed a standard non‑parole period of 5 years: s 112 Crimes Act 1900. 2. Assault occasioning actual bodily harm while being in company. That offence carries a maximum penalty of 7 years imprisonment: s 59(2) Crimes Act. That offence that occurred in the same premises 1. Keegan's adhered to those pleas today. His pleas indicated his acceptance of responsibility for the offence. The material before me also indicates that he has shown some insight into his offending. Matters I can and will consider. The utilitarian value of the guilty pleas requires that I reduce each of the two sentences I will indicate by 25%. I will take care that the process of accumulation does not undermine that benefit. 2. Although the two offences arise out of the same developing set of circumstances there must be some additional punishment to reflect the two crimes, and the fact there were two victims. I must fix a just and appropriate sentence for both matters taking into account all sentencing principles. The aggregate sentence I impose must properly reflect the totality of the crimes committed and all relevant matters in mitigation. I must indicate sentences that reflect what was done and the offender's personal circumstances. It is accepted that can only be done by imposing a term of imprisonment. 3. That term must take guidance from the maximum penalties and standard non‑parole periods that apply. I must give content to the standard non‑parole period but there are a number of factors which play upon this discretionary decision. The first is an understanding of what was done and the seriousness of what was done and there are agreed facts before the Court. Agreed Facts 1. The victim of the offence, who was then 59, lives in an apartment in Lake Heights. He lived there with his friend, who was also in her 50s. At about 8pm on 26 December 2021 they were at home sitting in the lounge room. The sliding door to the unit was closed but not locked. The male victim turned around and saw two men standing on either side of his female friend. She had taken some medication and was drowsy. One of the men was this offender, Ryan Keegan. He was wearing a face mask. The other man was wearing a balaclava. 2. The victim took off his headphones he had been using on his computer and yelled, "What are you doing here". The other man, wearing the balaclava said, "We want the car keys". The victim said, "Well you're not getting them." The same demand was made by this offender. Again, the victim said, "No". 3. There was a confrontation. Both offenders approached the victim and threw punches to his chest, head, and face. There was a wrestle. The victim ran out the front of his premises and yelled for help. He then went back inside and saw both offenders in the kitchen. As he went towards them the co‑accused held a knife, which I presume he had taken from the kitchen. To defend himself the victim grabbed at the knife and his hand grabbed the blade. There was a struggle and another wrestle, involving both offenders. The victim still holding onto the blade. He also felt scratching on other parts of his body. 4. As this was occurring a neighbour, who had heard the call for help, walked through the front door. He saw the offenders in the kitchen cornering the male victim. He tried to push the offenders away. He was punched in the nose by one of them, but he managed to get the knife away. 5. The offender and his co‑accused then ran outside. They were followed. The neighbour grabbed the co‑accused against the front wall near the door and then on the ground pinning him down. While this was happening the co‑accused was punching at him. There were further struggles, but eventually both offenders broke free and ran. 6. Police were called and shortly afterwards the offender and another man were arrested. 7. The male victim of the serious offence suffered several cuts, to his eyebrow, forehead, side of his shin, and the side of his back. On the right side of his stomach, he had abrasions and red marks. He also suffered a deep laceration between the thumb and index fingers. That laceration went into the muscle. He was admitted first to Wollongong Hospital, but the expertise of the Sydney Hand Hospital was required. There he underwent a left-hand debridement to repair the wound. He has a large scar on his hand and other scars. 8. The good Samaritan who went to assist his neighbour sustained a broken nose and had pain in his knee. Seriousness of the offending 1. A man and his female friend at home, going about their ordinary lawful business had two men wearing disguises into their home and threaten them. The episode of violence lasted many minutes. A weapon was obtained and used. The fact that the victim grabbed at the blade does not excuse what occurred. There can be no blame placed on him. He was doing what he could to defend himself against two home invaders, one of whom had produced a weapon. 2. He suffered a significant wound. Thankfully good medical attention has left him only with a scar, but the operation was a significant one and he was put at risk by that weapon. 3. I do not have a Victim Impact Statement from him, but it does not and cannot mitigate the sentence. 4. The second man came to assist his neighbour. His intervention may have prevented more serious harm being occasioned but for his trouble he had his nose broken. He wrote a Victim Impact Statement for me, telling me that because of this offence he feels more apprehensive. His sleep is disturbed, and he fears similar incidents occurring. It left him feeling unsafe, so unsafe that he has relocated. He very fairly spoke of his expenses being covered by Medicare and that his work was not particularly affected because he only works casually. But he was a disability pensioner, and he was left with a fractured nose and the swelling, pain and discomfort continued for about a month affecting his breathing. He also had a swollen knee, which he says is now healed. His Victim Impact Statement gives him an opportunity to let the offender know what he did and allow the Court some understanding of what occurred. 5. In any sentencing exercise courts must assess the objective seriousness or gravity of the offending. While I find the fixing of seriousness on some notional range unhelpful Mr Kwan, who appears for the offender, submits that overall, the home invasion, because that what it was, falls short of the middle of the range on objective factors alone. 6. Mr George, Solicitor Advocate who appears for the Crown, submits this offence falls just below the middle of the range. There is no controversy to adjudicate here. Both parties agree. 7. Given all of the facts to which I have referred, and noting, as the Crown do in their submissions, that the circumstance of aggravating, being in company, in no way precludes me from taking into account all relevant factors, this offence was a serious example of its type. 8. There are many more serious home invasions with more serious injuries inflicted and where there is some planning or cohesion to what is done or where victims are targeted for money or ransom. But that said I must focus on what was done here. So serious was the offending that it is accepted that there must be a period of custody, a significant period of custody. That punishment is required to vindicate the dignity of the victim of the home invasion and to impose a retributive sentence that signals to this offender and others the seriousness of what he did and the punishment that could be inflicted on others if they choose to do what he did. 9. So far as the assault is concerned, while the wounds have healed, they still had an impact physically with significant discomfort. As one would expect, assault has left a sense of fear and distrust of others and apprehension of future crimes, matters that I can take into account. That assault was serious and in context requires a custodial sentence. I consider the level of violence in particular and the injury and obviously as it is an element of the offence, that the two men were involved. Keegan's background 1. The offender has previously offended on many occasions. He has a record going back to the Children's Court. Of particular importance is an offence of a similar nature that occurred in 2018. It led to him being gaoled. His record does not entitle him to the leniency often given first offenders. It requires some consideration of the need to send a message to him. The term 'personal deterrence" is often used. 2. He will need encouragement to deal with some underlying issues. He needs to reflect. There is also a need to remove him from the community for a period. 3. That said, his criminal record also reflects the personal history, which is before me in the report of Dr Sidhu. That history can be accepted. Although not supported by evidence on oath, it is uncontroversial; sad and tragic though it is. Keegan's subjective case will be given full weight. 4. I note that he has served a year on remand. Although no evidence about it is put before me, I can take judicial notice of the evidence given in many proceedings over the past two years about to the impact of COVID on all prisoners. Gaol is a much harder place to do a sentence now than it was before COVID. There are continuing restrictions on access to programs, work, visits and the like. Nevertheless, the offender seems to have done okay in custody to date. But, of course, he must spend more time subject to those restrictions, matters I do take into account. 5. In his helpful and comprehensive report Dr Sidhu tells me a little about the offender's background. Keegan was born in Wollongong. Both his parents were drug users. He had little contact with his father who died when he was still a boy. His mother appears to have had a longstanding struggle with the use and abuse of illicit drugs. There may have been some domestic violence in the home, and drug use was prevalent. 6. From an early age Keegan was subject to State intervention. For a period he was placed with a foster family. This provided him the first and perhaps only time in his life, with a stable and consistent care. His foster father died. His grief and sense of loss had a significant impact. He still hasn't processed that loss. His foster family could no longer care for him consequently, he ended up in children's homes. And he spent his teens in such homes. Sadly, the people he met in those homes and his peers in those homes shaped his anti-social attitudes. 7. There is a report Keegan's received some compensation for a trauma but that was not fleshed out in any way. 8. He rarely had time to settle throughout his young life. He went to many schools including specialist behaviour schools. He did not learn much and he admits that he was himself a disruptive influence in the school. He left early. He was able to obtain work and is on his way to completing an apprenticeship. His background has formed him. From a very young age he used both alcohol and illicit drugs and would regularly become heavily inebriated. The only times he has been able to avoid abuse of alcohol has been while he has been in custody. 9. Keegan has a small circle of friends but few prosocial supports in the community. He reports a pattern of behaviour which he summarises succinctly as "getting drunk and doing dumb shit," leading the commission of crimes and arrest. He feels isolated in gaol, he wants to do his time, he says he hates it in gaol, an understandable sentiment. 10. He told Dr Sidhu his reason for going to the house because his mother had told him things about the occupants. While not on oath and a sense against interest it needs to be stressed that (a) there is no support for that supposition in any of the evidence before me, and (b) even if it was supported; to help someone else with a grievance by invading their home is no excuse. In fact, all it does is create the sort of individual and community distress, to which I have already alluded. 11. Dr Sidhu concludes that Keegan's behaviour as an adult has been undoubtedly impacted on; by his childhood feelings of abandonment, avoidant responses such as the use of drug and alcohol, exposure to antisocial and problematic attitudes derived from growing up in children's homes. When Keegan was a child, he lacked positive supports and role models. These things have impacted on his capacity to mature and develop the skills necessary to lead a lawful life in the community. 12. Dr Sidhu notes some protective factors; Keegan can get paid work, he has succeeded to date in his apprenticeship, and he demonstrated a capacity, while in custody, to abstain from substances. 13. Dr Sidhu believes Keegan would benefit from the EQUIPS Addiction Program, the Self‑Management and Recovery Training Programs, SMART. He would also need treatment from a suitably qualified psychologist to explore and help him process his earlier life experiences. Dr Sidhu notes that at present he has a dearth of healthy coping skills and that he may need dialectical behaviour therapy, DVT. He would benefit from a Real Understanding of Self Help or RUSH programs. If he can get work in custody, he might be able to finish his apprenticeship. 14. Dr Sidhu concludes: "Mr Keegan is relatively young, and his personality is still being formed and is now able to change. As such there is an opportunity to provide effective intervention to him at this current time to reduce further escalation of his offending behaviour by establishing effective skills and developments. As such Mr Keegan would benefit from a longer parole period which reduces further exposure to antisocial attitudes and coping strategies that he will be exposed to in custodial environments. Mr Keegan's motivation and engagement will be imperative to the success of the support". Synthesis 1. Sentencing often requires a judge to evaluate, assess and synthesise competing consideration. Here, so serious were both offences that custodial sentences of some length are called for. I must take into account the objective seriousness of what was done, particularly the s 112(2) offence where a person ended up with a significant wound to his hand. 2. There is here, it appears, some causal connection between the offender's background, his abuse of alcohol and the commission of this offence. But alcohol abuse, even long term addiction to alcohol, can never excuse a crime. The fact of addiction and consequences can help explain the impulsivity of the offence. It helps me understand the origin and extent of the problem. 3. Keegan in his young life has demonstrated a pattern of getting drunk and doing dumb shit; and that pattern has to be broken. I will, as Dr Sidhu recommends, make a finding of special circumstance to enable the offender to engage in programs both in custody and outside. If he succeeds that will not only help him but also help the community in the future. 4. Keegan is still an immature man with considerable growing up to do. His decision-making capacities may improve as he ages. His background means that he does not bear the same moral responsibility as one who had what might be termed a normal or advantaged upbringing. It has left a mark and compromised his capacity to mature and learn from experience. He has fewer emotional resources than a person without that background. It means his moral culpability is less than that of an offender whose formative years have not been marred in the way the material set out justifies. But it does not mean he does not bear responsibility for his actions. 5. The mitigating circumstances will be given full weight here, but they cannot lead to the imposition of either a sentence or a non‑parole period which does not properly reflect the seriousness of what was done in both matters. 6. Mr Kwan submits that an unduly retributive sentence is not called for. I disagree, retribution is an important consideration in serious sentence matters such as this. A court's role is not just to punish but to bring home to the offender and the community the consequences of behaving as he did. Sadly, there are still some in our community who think it is okay to enter people's homes at night and commit violence upon them. All that happens is that things escalate, and here things did escalate by the, and completely understandable, resistance of the victim and then a neighbour coming to assist. And one of the reasons for having a criminal justice system is to appropriately punish such matters. 7. Whether a sentence is unduly retributive really depends upon the perspective of the observer. 8. At the same time some moderation of penalty is also required. Given Keegan's youth and his deprived background, were I to simply go to the maximum and the standard non‑parole period and make proportional deductions from them, the sentence might operate to destroy his expectation of useful life after release. And that would not be in the community interest. 9. Keegan has things to work towards. I will fix a sentence that allows him the chance to prove himself in the community but there still must be a sentence of some length in this matter. Orders 1. In relation to both matters you are convicted. There will be an aggregate sentence. Each indicated sentence has a 25% reduction for the utilitarian value of the plea of guilty. I make a finding of special circumstances. 2. For the s 112(2) offence I indicate a sentence of four years and one month imprisonment with a non‑parole period two years two months. 3. For the assault occasioning actual bodily harm I indicate a sentence of imprisonment of one year and one month. 4. The aggregate sentence is four years and six months. that sentence will date form 26 December 2021. There will be a non‑parole period of two years and six months. Keegan will be eligible for consideration for release to parole on 25 June 2024. There will be a parole period of two years reflecting the suitable finding of special circumstances. 5. I would ask that the Registrar to send Dr Sidhu's report with the warrant so that the State Parole Authority and Community Corrections can be aware of the programs that might be made available to you while you are in custody. 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