Citation: R v Keo; R v Faulkner [2014] NSWDC 312
Court: District Court of New South Wales
Date: 17 October 2014
Judge: Judge S Norrish QC
Background
Two offenders were sentenced for their roles in importing commercial quantities of cocaine and methamphetamine into Australia. One offender (the younger and more peripheral of the two) faced a single count of attempting to possess a border-controlled drug in a commercial quantity. The other faced a far more serious course of offending: one substantive count of importing a commercial quantity of methamphetamine, plus five additional offences taken into account on a schedule under s 16BA of the Crimes Act 1914 (Cth), spanning several months in 2011.
Both offenders were very young at the time of the offending, aged 19 and 20 respectively. They were among a group of co-accused that included other individuals who had been separately tried or sentenced. The principal financiers of the importations were not before the court, and both offenders occupied a lesser organisational role.
Both offenders had pleaded guilty and cooperated with authorities, including providing information to the Australian Federal Police. A co-accused's induced statement had been instrumental in enabling the prosecution to bring the more serious charges against the second offender.
Legal Issues
- What total sentence and non-parole period were appropriate for each offender, given the seriousness of commercial-quantity drug importation offences under the Criminal Code Act 1995 (Cth)?
- What combined discount was warranted for early guilty pleas and past cooperation with law enforcement?
- How should cumulative sentences be structured where one offender faced multiple serious offences spanning an extended period?
- How should parity with co-accused (including one sentenced by another judge whose remarks were not yet finalised) be approached?
- What weight should be given to the offenders' comparative youth and their lesser roles relative to the financiers of the importations?
Decision
The court sentenced the first offender (Keo) to six years and six months imprisonment, with a non-parole period of three years and three months, backdated to 4 November 2011. A combined discount of 27.5% was applied: 25% for facilitating the course of justice through the early plea, and 2.5% for past cooperation. On the court's calculation, Keo became eligible for parole on or about 3 February 2015.
The second offender (Faulkner) received a total sentence of 26 years and six months imprisonment, with a non-parole period of 18 years. His sentence was structured in two cumulative parts. For count 2 (the common offence), he received 16 years and six months commencing 4 November 2011, with a 25% combined discount for plea and cooperation. For count 1 (the more serious importation offence, with the five scheduled matters taken into account), he received 19 years and six months commencing seven years into the first sentence, with a 30% discount. An 11-year non-parole period was fixed for count 1.
The court acknowledged that Faulkner's significant mitigating factors included his early pleas, his cooperation, and his comparative youth, as well as his lesser role relative to those who actually financed the importations. Nonetheless, the volume and seriousness of the offending over the relevant period, combined with the scheduled matters, required substantial cumulative sentences.
The court also addressed the parity issue arising from the separate sentencing of co-accused Ream by another judge, whose remarks on sentence had not yet been finalised. The court relied on a Crown-prepared summary of those remarks, accepted as prepared in good faith, while acknowledging it was not a complete record. The court considered submissions from both counsel on this point before arriving at its conclusions.
Orders Made
Keo:
- Convicted and sentenced to six years and six months imprisonment, commencing 4 November 2011, expiring 3 May 2019
- Non-parole period of three years and three months, commencing 4 November 2011, expiring 3 February 2015
- To be released on parole on 3 February 2015, subject to s 19AL of the Crimes Act 1914 (Cth)
Faulkner:
- Count 2: Convicted and sentenced to 16 years and six months imprisonment, commencing 4 November 2011, expiring 3 May 2028
- Count 1: Convicted and sentenced to 19 years and six months imprisonment, commencing 4 November 2018, expiring 3 May 2038; non-parole period of 11 years, commencing 4 November 2018, expiring 3 November 2029
- Total effective sentence: 26 years and six months imprisonment; total non-parole period: 18 years
- To be released on parole on 3 November 2029, subject to the Crimes Act 1914 (Cth) as then enacted
Key Takeaways
- The District Court applied a structured combined discount for guilty pleas and past cooperation with law enforcement, distinguishing the two components and calibrating the percentage to each offender's level of assistance.
- Where an offender faces multiple serious Commonwealth drug importation offences, cumulative sentences are required, with the sentencing court required to fix a non-parole period for each sentence and calculate a total effective non-parole period across them.
- Comparative youth, while a significant mitigating factor, does not operate to reduce sentences to a level disproportionate to the gravity of large-scale commercial drug importation spanning multiple events over several months.
- Parity considerations arose from the separate sentencing of a co-accused before a different judge, and the court addressed this by examining a Crown summary of those remarks in the absence of finalised reasons, a practical approach reflecting the limits of available material.
- A lesser role relative to the financiers of an importation scheme remains a mitigating factor, but does not displace the gravity of offences that attract a maximum penalty of life imprisonment under the Criminal Code Act 1995 (Cth).
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 307.1(1), 307.5(1)
- Crimes Act 1914 (Cth), ss 16BA, 19AL
Cases:
- Abbas & Ors [2013] NSWCCA 115
- C v R [2013] NSWCCA 81
- Dang v R [2014] NSWCCA 47
- Director of Public Prosecutions v De La Rosa [2010] NSWCCA 194
- Hili v R [2010] HCA 45
- Le v R [2006] NSWCCA 136
- Olbrich v R (1999) 199 CLR 270
- Pearce v R (1998) 195 CLR 610
- Pham v R [2014] NSWCCA 115
- R v El Hani [2004] NSWCCA 162
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v SZ (2007) 168 A Crim R 249
- R v Sukkar (2006) 172 A Crim R 153
- R v Alpass (1993) 72 A Crim R 561
- R v Daetz (2003) 139 A Crim R 398
- Silvano v R (2008) 184 A Crim R 593
- R v Bloomfield (1998) 44 NSWLR 734