Citation: R v Keen [2022] NSWDC 369
Court: District Court of New South Wales
Date: 19 August 2022
Judge(s): Scotting DCJ
Background
The offender, Lloyd Keen, appeared for sentence having pleaded guilty in the Local Court to two serious drug offences: aiding and abetting an attempt to possess a commercially imported quantity of cocaine (a Commonwealth offence), and knowingly taking part in the supply of a commercial quantity of pseudoephedrine (a New South Wales state offence).
The federal offence arose from events in early 2019, when a Sydney-based criminal group attempted to retrieve approximately 188 kilograms of cocaine concealed inside hollow aluminium ingots imported from Mexico. The offender played a supporting role: he signed for the delivery of the consignment at an aerodrome warehouse, operated a forklift to move pallets, participated in searches of the ingots alongside other group members, discussed paperwork with a co-offender, and later assisted with removing the ingots from the premises. The estimated wholesale value of the cocaine was between $35 million and $48 million.
The state offence arose from a separate matter in December 2020, in which the Australian Border Force identified a consignment of Toyota side steps concealing pseudoephedrine. The offender was arrested in connection with this matter in December 2020, prior to his co-offenders in the federal matter being arrested in March 2021.
Legal Issues
- What sentence was appropriate for each offence, having regard to objective seriousness, the offender's role, and all relevant aggravating and mitigating factors?
- What discount should be applied for the guilty pleas, and did those pleas reflect a genuine willingness to facilitate the course of justice?
- How should the federal and state sentences be structured, including non-parole periods, accumulation, and backdating to account for pre-sentence custody?
- Whether special circumstances existed to justify a variation from the standard ratio of non-parole to head sentence.
Decision
Guilty plea discounts. The Crown case against the offender was strong in both matters. The Court accepted that the guilty pleas carried genuine utilitarian value, saving the need for witnesses at trial, and that the pleas reflected an acceptance of responsibility. A discount of 25 per cent was applied to each sentence.
Federal offence. The Court applied the sentencing framework in Part IB of the Crimes Act 1914 (Cth) and the principles relevant to serious federal drug offenders from R v Nguyen. The offender's role, while not the most senior in the group, was material and sustained over several months. The Court weighed relevant mitigating factors, including rehabilitation prospects, age, and physical health, against the gravity of involvement in a large-scale commercial cocaine importation.
State offence. Sentencing proceeded under the Crimes (Sentencing Procedure) Act 1999 (NSW). The Court imposed a shorter term for the pseudoephedrine supply offence, structured to partially accumulate with the federal sentence, with backdating to account for time already spent in custody.
Special circumstances. The Court declined to make a finding of special circumstances for the state offence, noting that such a finding would be futile given the structure of the federal sentence. For the federal offence, the Court exercised its discretion to vary the standard non-parole ratio, taking into account the offender's age, rehabilitation prospects, physical health, and the risk of institutionalisation.
Orders Made
- The offender was convicted of both offences.
- State offence: term of imprisonment of 5 years, with a non-parole period of 3 years and 9 months, backdated to 21 February 2021. Non-parole period expires 20 November 2024; head sentence expires 20 February 2026.
- Federal offence: term of imprisonment of 9 years, with a non-parole period of 5 years, commencing 21 February 2022. Non-parole period expires 20 February 2027; head sentence expires 20 February 2031.
- The earliest date of parole eligibility is 20 February 2027, representing a minimum custodial period of 6 years when pre-sentence custody is taken into account.
Key Takeaways
- Under s 16A of the Crimes Act 1914 (Cth), a court sentencing a federal offender must impose a sentence of severity appropriate to all the circumstances, with the listed factors in s 16A(2) being non-exhaustive and common law principles continuing to apply.
- A 25 per cent guilty plea discount was available for both the Commonwealth and state offences where the Crown case was strong and the pleas demonstrated a genuine willingness to facilitate the course of justice, consistent with Cameron v The Queen and Danial v R.
- Where an offender faces both federal and state sentences, the court may partially accumulate the terms and backdate sentences to absorb pre-sentence custody, including time served in connection with a parole revocation.
- The District Court declined to find special circumstances for the state offence where doing so would have had no practical effect on the overall sentencing structure given the federal sentence imposed.
- Factors including the offender's age, physical health, prospects of rehabilitation, and the risk of institutionalisation may warrant a variation to the standard ratio between the non-parole period and the head sentence for a federal offence, even in cases of serious commercial drug criminality.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), including s 16A
- Criminal Code (Cth), ss 11.1(1), 11.2(1), 307.5(1)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 25D(2)(a)
Cases
- Cameron v The Queen (2002) 209 CLR 339
- Danial v R [2008] NSWCCA 15
- Johnson v The Queen (2004) 78 ALJR 616
- R v El Karhani (1990) 21 NSWLR 370
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270
- Xiao v R (2018) 96 NSWLR 1