Posts Tagged ‘[2022] NSWSC 1272’

Hate crime in Broulee

November 23, 2022

Pictured above (ABC News: Holly Tregenza) is a power line easement just outside Broulee.  Here, on the afternoon of Sunday 2 February 2020, the body of Peter Keeley, 56, was found. His feet and arms were bound with masking tape (the arms behind his back) and there was also masking tape around his head.  A nearby car still contained the keys, his wallet and his mobile phone.

Keeley had been lured with the prospect of a sexual encounter from Canberra to this spot by AN, aged 17. They had been communicating on Grindr since the previous afternoon.  When they got to the spot (after Keeley picked AN up at Broulee), AN attacked Keeley and was almost immediately joined in the assault by LM and WD, also both 17, who were lying in wait nearby as a result of a plan which had been hatched between them earlier that afternoon.  The trio beat and bound Keeley and left him there.  Keeley was found dead about an hour later by a man who had gone there to walk his dog.

All three were charged with murder.  AN and LM were acquitted in a judge-alone trial, because the possibility could not be ruled out that Keeley had died just from the drugs he had been taking, in particular methamphetamine.  Justice Walton’s reasons for this are here.  The murder charge against WD was then withdrawn.

AN, LM and WD pleaded guilty to specially aggravated kidnapping under s 86(3) of the Crimes Act – the special aggravation consisting of the kidnapping having been committed in company and on the occasion of assault causing actual bodily harm.

You can read the sentencing judgment here.

AN was sentenced to 5 years and eight months with a non-parole period of 3 years and 8 months, eligible for release in December 2025.  LM got 4 years 4 months, non-parole 2 yrs 11 months (eligible for release June 2024) and WD 3 yrs 10 months, non-parole 2 years 7 months (eligible for release in September, ie, already by the time the judgment was handed down).

Justice Walton held that  AN, LM and WD were entitled to “discounts” for pleading guilty of 12.5%, 20% and 15% respectively.  This is a reduction in the sentence which would otherwise be imposed, on account of the utilitarian value of a plea in saving society the aggravation and expense of a trial. The differing discounts relate to the differing circumstances in which pleas of guilty had been offered by each.  He held that AN’s culpability was greatest as the instigator (it could not be proved that LM and WD had any involvement until about 1pm on Sunday, by which stage AN’s plan to lure Keeley was well-advanced).  WD benefited from ameliorating circumstances relating to a deprived upbringing.

It’s a mug’s game to argue about actual sentences.  So many things go into the mix.  Young offenders are entitled to a more lenient treatment: there is a greater emphasis on rehabilitation than either retribution or deterrence.

All the same, if you can bear to read the judgment, your blood may well boil, as mine did, at some of the arguments offered by the offenders’ representatives to talk the sentencing range down.  All sorts of straw men were put forward as potentially more serious specially aggravated kidnappings which could have occurred and which would be offences which might attract a top of the range sentence – the maximum sentence being 25 years.  There was no torture (how do we know? – OK I realise that this just means no torture was proved beyond reasonable doubt), no ransom demand, and, best of all (at [156] of the judgment):

the precise period of the detention is not known since it ended when the victim passed away for an unrelated reason. …There is no suggestion that the intention of the offenders was to detain the victim for a long time and the court could not be satisfied beyond reasonable doubt that the offenders detained the victim for more than a few minutes. At most, it could have been for the 30 minutes suggested by the Crown. In any event. the period of detention was well short of the hours or days which are often involved in more serious examples of the offence.

His Honour rejected the “few minutes” submission, but to me the obvious rejoinder to that is that even if technically the detention only lasted while the three offenders were present, its effect continued after they left the scene, as they must have been aware.  As the court held, on the basis of agreed facts, when the offenders left the deceased, he was in a very vulnerable position. Having been seriously assaulted, he was left unable to move or call for assistance. He was left alone in a remote area.  No attempt was made by any of the offenders to obtain medical assistance for the deceased. 

As to the “no ransom demand,” that seems to be lining this crime up for comparison against totally different types of kidnappings. 

His Honour identified that the vigilante aspect of the crime was one which called out for deterrent sentencing, but he also said “it was not an adult-like offence” [227].  This was a further reason for not punishing them as adults, and hence effectively letting them off or at least substantially reducing the deterrent imperative in sentencing.

And here is the rub.  It all starts with the characterisation of the offence and the offenders’ motives.  This was what the judge said about that:

Motive and Purpose of Detention

161.       The submission of the Crown with respect to motive has been set out in AN and LM (No 1). AN accepted that the purpose and the motive of the kidnapping was to derive “some sort of attempt to humiliate the [deceased] and to dissuade him from sexually exploiting underage young men in the future”. There was no attempt to hold the deceased for ransom and it was submitted that the expectation was that the deceased would eventually free himself (although it is not at all clear given the binding of the deceased how that expectation may have been held by the offenders).

162.       I consider there is considerable force in the submission advanced on behalf of WD in this respect. The purpose of the detention was to facilitate, in the case of AN and LM, to assault, intimidate and humiliate the deceased. In the case of WD it was the opportunity of assaulting, intimidating and humiliating the deceased. I agree that that purpose is less serious than to torture, or sexually assault the deceased or to hold him for ransom but it nonetheless reflects at the offending’s serious [sic].

163.       As to the question of motive, I accept the submission of the Crown and WD that the motive for the offence and the acts of intimidation, humiliation and assault was the perception that the deceased was a paedophile.

164.       This is not a mitigating motive. Nor is it an aggravating one. This is vigilante conduct, but it should not be taken into account as an aggravating factor, particularly since intimidation, humiliation and assault are integral to the offence as charged: Sorensen v R [2016] NSWCCA 54 at [128] – [129]. Whilst the motive does not elevate the objective seriousness of the offence, it is relevant, in my view, as to the question of general deterrence, although counterbalanced with other factors I will discuss. This is particularly so, because, as the Crown submitted, the offenders were each of the distorted view, at the time, that their behaviour was justified. This Court should actively discourage the type of vigilante justice which lays at the centre of the offenders’ motive.

165.       An additional motive for AN was to rob the deceased of drugs he expected him to bring.

It’s not possible to follow up the reference to AN and LM (No 1) because that case (R v AN; R v LM [2021] NSWSC 1657) which was the decision acceding to AN and LM’s application for a separate judge-alone trial on the murder charge is for no very clear reason not published on the internet.

If the prosecution had submitted that “the motive of the kidnapping was to derive “some sort of attempt to humiliate the [deceased] and to dissuade him from sexually exploiting underage young men in the future” that is, in my opinion, an insulting trivialisation of the trio’s motives.  Likewise and even more so even if understandably if that was a defence submission.  The motive was not merely to dissuade “the [deceased]” but to punish him.  This was ostensibly because he was a pedophile, but even that doesn’t quite tell it all.

The basis of the claimed belief that Keeley was a pedophile was (1) in the Grindr chats with AN, Keeley had told AN that he had once had sex with someone who he was told was 16 but who turned out to be 14 and (2) because he wanted to have sex with AN.  (LM told the police (sentencing decision at [127]) that the plan was formed: “because [AN] is underage, and he [ie Keeley] wanted to meet up with [AN] to have sex, from what I’ve heard, and that he has had sex with a 14 year old in the past.”)

Leaving aside that AN had told Keeley that he was 18 (which he may not have told the others), AN was not “underage.”

Lurking behind this belief and ascription of labels is something going waay back with which gay people are all too familiar.  We could still be at Alexandria and the murder of Richard Johnson.  To describe the crime as a vigilante crime sells it short.  It is a hate crime, in the sense that the motive is a hatred for a despised group which is accompanied by a perceived entitlement to mete out punishment to the despised group.  The despised group at the outset was homosexual men, because that is what AN sought out in Grindr.  We don’t know what he thought he would do but he was never there in search of gay sex.  He was always there with malicious, hateful motives.  Justice Walton acknowledged that in what he possibly thought was just a wry remark at [194] when he described the Grindr messages between AN and Keeley:

“The content of the communication unambiguously demonstrated an intention of the two to meet for the stated purpose (in retrospect probably untrue from AN’s point of view) of engaging in drug-taking and sexual activity.”

Keeley’s mention of the time he had sex with a 14-year-old was confirmation of what AN was predisposed to believe.  AN only learnt of it because he had embarked on a hateful course of action from the outset.

The elision of gay man with pedophile is familiar to gay men as something analogous to the blood libel for Jews.  It lingered in the grudging equalisation of the gay age of consent.  It’s definitely still out there.

Practically speaking, many vigilante crimes are also hate crimes, in the sense of motivation by hatred of a group, because it is the perception of a group as despised which emboldens the vigilantes to act.  This is a point which has recently been made in Western Australia following the death of Cassius Turvey.  In my opinion (well, I would say that wouldn’t I, as a member of such a victim group) that is an aspect of vigilantism which needs to be specifically addressed and denounced in sentencing over and above merely condemning people for taking the law into their own hands.  Hate crimes hurt the group against which they are directed.  It is not just a matter of what these young turds did to Mr Keeley.

Actually, s 21A(2)(h) of the Crimes (Sentencing Procedure) Act says that it is an aggravating factor (ie warrants additional punishment) if

“the offence was motivated by hatred for or prejudice against a group of people to which the offender believed the victim belonged (such as people of a particular religion, racial or ethnic origin, language, sexual orientation or age, or having a particular disability)”

which makes surprising (to me) the judge’s remark that it was not an aggravating factor that a motive for the crime was the perception that Keeley was a pedophile.

I need to get this off my chest and move on.  There is more I could say about the judgment, even though I understand that, because the offenders are young offenders, much of it is a kind of Dutch auction to talk the sentence down from what would normally be imposed to something more “rehabilitative.”  All the same, I can’t help mentioning two more things.

Section 21A(3)(i) of the Crimes (Sentencing Procedure) Act identifies “remorse” as a mitigating factor in sentencing.

When AN was arrested, he was of the belief that he was responsible for Keeley’s death.  Quite frankly, but for the reasonable doubt, I expect that will be the view of many.  The reasonable doubt got them all off the hook for criminal responsibility.  AN said to his father at this moment:

“Dad, I’m sorry Dad…I didn’t do it on purpose, it was an accident, I didn’t mean it to happen. I didn’t mean to Dad. I didn’t want it to happen.”

At [239] Justice Walton says: “the immediacy of the admission in such circumstances amounts to tangible evidence of remorse and contrition.”

Really?  Sorry to his Dad that he’s got into trouble, coupled with exculpatory statements in relation to Keeley’s death is an indication of remorse?  Puhleez! (OK, I can have a queeny moment here if I like.  No-one’s going to kill me for it, are they?)

Finally, because the offence for which AN, LM and WD were being sentenced was aggravated kidnapping, his brother and former wife were not able to read victim impact statements to the court.  That is because relatives are only victims if someone has been killed.  The only person who got to speak up for Mr Keeley in any way was Chantelle Walsh, a young druggy associate whose statement got into evidence in the murder trial.  Her statement is summarized at [196] to [209] of that judgment.  It’s not much, but in a case which otherwise is far from devoid of a kind of pervasive victim-blaming (see [193] of the sentencing judgment for an example), it’s worth a read.

I suppose I’d better get on with my life now.