Family members of a Canberra auctioneer who was found dead in bushland have been denied the chance to read out their victim impact statements in court because of legislative requirements that a judge described as "highly technical issues".
Peter Keeley, 56, was found dead near a beach at Broulee, about 20km south of Batemans Bay in February 2020.
Mr Keeley had gone to the region to meet one of three teenagers, all 17 years old at the time, who lured him from Canberra after they exchanged messages on dating app Grindr.
The three teens had discussed a plan for them to tie Mr Keeley and assault him.
The trio had pleaded not guilty to murder, with two being acquitted in June due to reasonable doubt surrounding the cause of death while the trial for the third man was vacated.
It came after he pleaded guilty in July to kidnapping Mr Keeley to assault him and thereby caused actual bodily harm.
His two co-accused, prior to their trial and subsequent acquittal of murder, also pleaded guilty to that charge.
The case returned to the NSW Supreme Court for sentencing proceedings on Wednesday when contention surrounded Mr Keeley's former partner and his brother seeking to tender and read out their victim impact statements as part of the proceedings.
The issue arose under the Crimes (Sentencing Procedure) Act in dealing with the receipt of victim impact statements in circumstances where the court is not dealing with a homicide.
Crown prosecutor Nerissa Keays argued that they be allowed because Mr Keeley was now incapacitated and that the case met the legislative requirements.
"The cause of that incapacity the legislation appears to say is because of age, impairment or otherwise but surely allow for the situation in this matter," she said.
Ms Keays said the family members felt strongly about speaking on Mr Keeley's behalf to allow "the court to know that there is more to him" than what was heard during the trial.
One of the defence lawyers, Richard Wilson SC, said "the legislation is very clear that the mechanism for families to give victim impact statements arises for a deceased person only when a deceased person is deceased as a result of the offence".
Justice Michael Walton ruled against the prosecutor but said he read the statements for the purpose of expressing sympathy to the family when he hands down his sentence.
"We're dealing with highly technical issues here, but it depends on how one approaches the word 'incapable' and how one construes that in light of the words that then follow it," he said.
He acknowledged the presence of Mr Keeley's family in court, saying "I am sympathetic as to your circumstances".
"However, I am bound by the legislation created by the parliament of this state to apply the law," Justice Walton said.
"The consolation that I hope you can have is that I have read the victim impact statements ... But I can do no more in my view as a matter of law."
Vigilante justice must be discouraged
Played during the trial of two of the offenders was a recorded police interview with one of them, who told investigators the trio planned to only scare Mr Keeley "because we were all under the impression he was a paedophile".
Ms Keays on Wednesday said such reasoning should "be actively discouraged by sentencing courts".
"[It is] the type of vigilante justice that the court has taken pains to discourage and discourage by imposing condign punishment," she said.
Roles of offenders contested
Ms Keays argued that the offender who had contact with Mr Keeley via Grindr "played a primary role" in luring and taking him to the spot where he would ultimately be bashed before dying.
"He told the author of the juvenile justice report that Mr Keeley was defending himself and that he was striking him hard in a effort to knock him out," she said.
The Crown prosecutor said all three offenders were involved in the detaining of the victim as established by the forensic evidence.
She argued against a defence submission that the offending was below mid-range of objective seriousness for this type of offending.
"The injuries inflicted were severe ... there were many of them, they were concentrated around his head," Ms Keays said.
"The experience for Mr Keeley must have been a very frightening one."
Carolyn Davenport SC for one of the offenders said she agreed with most of the Crown's submissions.
Ms Davenport said there was no evidence her client, the oldest of the three, had any role until the day of the kidnapping and assault.
"Clearly he's a young man ... since he's been in custody, he has achieved a lot and has matured," she said.
Ms Davenport said rehabilitation was a primary concern and that her client intends to study at the University of Canberra.
Clive Steirn SC, representing the offender who messaged Mr Keeley on Grindr, argued against the notion that his client had a larger role.
Mr Steirn said the starting point in sentencing should be the principle of parity.
"The plan was assaulting and detaining him and that involved all three so logically the plan must've been hatched before [his client] commenced communicating with the victim as a matter of common sense and logic," he said.
Justice Walton will hand down his sentences at a date to be fixed.
AS IT HAPPENED:
- Teens' 'sketchy' plan led to alleged bushland murder of auctioneer
- No 'silver bullet' cause of death as experts disagree in murder trial
- Trial of accused murderers focuses on drug overdose as cause of death
- 'Extensive assault' caused bound and gagged auctioneer's death, court told
- Meth overdose possibly killed auctioneer found bound in bushland: lawyer
- Men found not guilty of murdering auctioneer after Grindr meeting
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Murder charge dropped after Grindr chat led to auctioneer's death
