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District Court 28 July 2022

R v Keelan

[2022] NSWDC 387

Drugs

Citation: R v Keelan [2022] NSWDC 387
Court: District Court of New South Wales
Date: 28 July 2022
Judge(s): Bennett SC DCJ

Background

The offender, a 55-year-old man with an extensive criminal history, was charged with attempting to possess a marketable quantity of a border-controlled drug, namely heroin, contrary to ss 11.1(1) and 307.6(1) of the Criminal Code Act 1995 (Cth). The offence carried a maximum penalty of 25 years' imprisonment. Being a Commonwealth offence, no standard non-parole period applied.

In March 2021, Australian Border Force intercepted a parcel sent from Kenya to a Little Bay address. The parcel contained three rolls of ribbon concealing approximately 239.7 grams of pure heroin. Police replaced the heroin with an inert substance and conducted a controlled delivery. The following morning, the offender collected the parcel from a post office using a card he admitted stealing from the letterbox, with a forged signature on the collection authorisation.

The offender was arrested on 9 April 2021 and had remained in custody since. He had pleaded guilty in the Local Court, though on the morning of sentencing he briefly indicated a desire to revert to a not-guilty plea. After further consultation with counsel, he confirmed the matter would proceed to sentence. The court accepted that no time was ultimately lost and that the original plea retained its utility.

  • Whether the offender was entitled to a discount for his guilty plea, given his last-minute indication that he wished to withdraw it
  • The appropriate weight of the guilty plea as evidence of remorse in a Commonwealth prosecution
  • How the offender's role as a paid courier, his extensive but largely low-level criminal history, and his personal circumstances should affect the sentence
  • The applicable sentencing methodology for federal drug offences, including the use of pure drug weight rather than total bulk weight

Decision

Bennett SC DCJ found that the offender's wavering on the morning of sentencing did not ultimately diminish the utility of the plea entered in the Local Court. No time was lost, and the matter proceeded as intended. The court applied a 25% discount to reflect that utility and also treated the guilty plea as an expression of remorse, consistent with the authorities governing Commonwealth prosecutions.

The offender's written statement, tendered as Exhibit 1, was significant. In it, he acknowledged knowing there was a risk the package contained drugs and that he had agreed to collect it for another person in exchange for $1,000. This admission resolved what the court identified as a potential argument that the circumstantial Crown case left open a hypothesis inconsistent with guilt.

On the question of moral culpability, the court treated the offender's role as a paid courier at the lower end of offending for this type of offence. His 44-page criminal record was examined carefully. The court found that, although lengthy, it consisted predominantly of opportunistic and low-level offending dealt with in Local Courts. His troubled background, long-term drug dependency, and the fact that he had already spent substantial periods of his adult life in custody were all brought to account as mitigating factors. The impact of the sentence on his family, including an adult son who attended the courthouse, was also noted.

Comparing the matter to cases cited by the parties, the court concluded this was a less serious example of the offence and that a sentence below those imposed in the comparable cases was appropriate.

Orders Made

  • The offender was convicted of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug (heroin)
  • A sentence of 3 years and 4 months' imprisonment was imposed, commencing 9 April 2021 and expiring 8 August 2024
  • A non-parole period of 2 years was set, expiring 8 April 2023
  • A balance of parole of 1 year and 4 months remains upon expiration of the non-parole period
  • No fine was imposed; no further orders were sought

Key Takeaways

  • Under Commonwealth drug sentencing law, the relevant weight for sentencing purposes is the pure drug content of the seized substance, not the total bulk weight. Here, the 568.4 grams of bulk heroin translated to 239.7 grams of pure heroin for sentencing purposes.
  • A guilty plea entered in the Local Court can retain its full utility discount at the sentencing stage even where the offender briefly signals an intention to withdraw it on the morning of sentencing, provided no time is ultimately lost and the matter proceeds as planned.
  • In Commonwealth prosecutions, a guilty plea is to be treated not only as a practical saving of court resources but also as evidence of remorse, consistent with established appellate authority.
  • Where a defendant's role is limited to acting as a paid courier with no apparent involvement in the broader importation enterprise, this is a relevant factor weighing toward reduced moral culpability.
  • A lengthy prior criminal record does not automatically point to greater culpability or a heavier sentence. The District Court examined the record in detail and gave weight to the predominantly opportunistic and low-level nature of the offending history, as well as the offender's difficult personal background and chronic drug dependency.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 307.6
- Criminal Code Regulations 2019 (Cth)
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)

Cases
- Imbornone v R [2017] NSWCCA 144
- Lopez Duque v The Queen [2019] VSCA 212
- Ojielumhen v R [2014] ACTCA 28
- Omorogbe v R [2013] NSWCCA 201
- R v Ajelara [2015] QCA 56
- R v Millwood [2012] NSWCCA 2
- R v Pham (2010) 205 A Crim R 106
- R v Qutami [2001] NSWCCA 353