Director of Public Prosecutions v Hogan-Keogh
[2020] VCC 261
•12 March 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01915
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ADAM HOGAN-KEOGH |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2020 | |
DATE OF SENTENCE: | 12 March 2020 | |
CASE MAY BE CITED AS: | DPP v Hogan-Keogh | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 261 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Import marketable quantity of drug of dependence – Traffick drug of dependence – Possess drug of dependence (3) – Many transactions over a period of months – Importations lacked sophistication – Imported for own use – Cocaine dependency – Trafficking to friends on rare occasions – If term of imprisonment imposed Defence concession this does not amount to exceptional family hardship
Sentence: Convicted and sentenced – Charge 1 (Commonwealth) 4 years’ imprisonment commencing on 12 March 2020 with 18 months’ imprisonment to be served before being eligible for parole – Charge 2 6 months’ imprisonment commencing on 12 March 2020 – Charges 3, 4, and 5 aggregate fine of $1,000, stayed for a period of 3 months following release from custody – 5 days’ pre-sentence detention declared as having already been served under the sentence imposed – s.6AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Saunders | Commonwealth DPP |
| For the Accused | Mr M. Singh | Dhillon Legal |
HER HONOUR:
1 Adam Hogan-Keogh, you have pleaded guilty to the following charges.
2 Charge 1, import a marketable quantity of a border controlled drug, namely cocaine.
3 Charge 2, traffic in a drug of dependence, namely cocaine.
4 Charge 3, possess a drug of dependence, namely cocaine.
5 Charge 4, possess a drug of dependence, namely cannabis.
6 Charge 5, possessing a drug of dependence, namely Xanax.
7 Importing a marketable quantity of a border controlled drug has a maximum penalty of 25 years’ imprisonment or 5,000 penalty units or both. Trafficking in a drug of dependence has a maximum penalty of 15 years’ imprisonment. Possessing a drug of dependence, for the purposes of Charges 3 and 5, has a maximum penalty of one year imprisonment or 30 penalty units or both. Possess cannabis has a maximum penalty of five penalty units.
8 In sentencing you, I must take into account the maximum penalties, as these reflect the seriousness with which Parliament, whether it be the Commonwealth for the purposes of Charge 1 or State Parliaments for the purposes of the remaining charges regard the offences.
9 I was told that you were born in 1980 and were living at an address in Mt Eliza at the time of the offending.
10 Between 11 September 2018 and 6 March 2019, you imported eight parcels containing cocaine.
11 On 11 September 2018, a mail item was intercepted by Australian Border Force officers at the Melbourne Airport Gateway Facility addressed to you at your address – the package came from the United Kingdom. Upon examination, a silver foil bag containing three clear bags was found inside the envelope. Within the clear bags was a white powder which was found to be cocaine. The gross weight was 27.9 grams and the total pure weight of cocaine was 19 to 25 grams, and the substance was found to be 69 to 88 per cent cocaine.
12 On 1 October 2018, another mail item was intercepted by Australian Border Force officers, at the Sydney Airport Gateway Facility. Again, the item was addressed to you at your home address and was said to be from a particular person with an address in Paris, France. Inside the envelope which was intercepted was a silver foil bag and a clear bag which held a white powder – the bag was labelled '25G'. The gross weight of the substance was 24.9 grams and was found to be 46 to 60 per cent pure cocaine, which meant that the pure weight was 11 to 15 grams.
13 On 25 October 2018, Australian Border Force officers intercepted a mail item addressed to you, again, at your home address. This time the mail was intercepted at the Melbourne Airport Gateway Facility. The item came from someone in Slovenia and was declared as a toaster. The item was found to contain a sandwich toaster but inside it was a silver foil bag which held a white powder. Further examination and testing showed a gross weight of 14.9 grams and that the substance contained between 70 to 91 per cent cocaine, which meant there was a total pure weight of 10 to 14 grams.
14 On 16 November 2018, another mail item was intercepted by Australian Border Force officers at Melbourne Airport Gateway Facility. The item was addressed to you but at an address in Oakfield Court, Frankston South. The package was said to come from the United Kingdom. Again, the package contained a white substance which weighed 6.4 grams gross. Forensic analysis indicated that the substance contained between 71 to 91 per cent cocaine, which meant that the pure weight of cocaine was between 5 to 6 grams.
15 On 22 November 2018, another mail item was intercepted by Australian Border Force officers on duty at the Melbourne Airport Gateway Facility. The item was addressed to you at your home address and came from an address in the United Kingdom. The item contained a gross weight of 6.9 grams of a substance which was analysed to contain between 70 to 90 per cent cocaine. This meant that there was a pure weight of between 5 and 6 grams.
16 On 16 January 2019, a mail item was intercepted by Australian Border Force officers at Melbourne Airport Gateway Facility – it was addressed to you at your home address from an overseas address. The gross weight of the substance within the parcel was 6.9 grams and was found to contain between 71 to 91 per cent pure cocaine. The pure weight of cocaine was therefore between 5 and 6 grams.
17
On 6 March 2019, an item was delivered to the Mornington Delivery Centre which was addressed to you from the United Kingdom. The envelope contained a deck of playing cards. When examined, the box of cards contained a bag which had a substance within it. The gross weight of the substance was
14.5 grams and subsequent forensic analysis showed that it contained between 69 and 89 per cent pure cocaine. This translated to being between 10 to 13 grams of cocaine pure.
18 On 6 March 2019, another item was delivered to the Mornington Delivery Centre – again addressed to you at your home address. This time, the item was from an address in Canada. The envelope contained a bag with a gross weight of substance of 7.2 grams. Forensic analysis showed that the substance contained between 68 to 88 per cent of cocaine, which meant that the pure weight was between 5 and 6 grams.
19 The combined amount of pure cocaine contained in the eight parcels imported by you was therefore between 70 and 99 grams. A marketable quantity of cocaine is 2 grams pure. Therefore, you imported between 35 and 49.5 times the marketable quantity threshold.
20 The basis for Charge 2 is that at about 9.10 am on 19 April 2019, police executed a search warrant at your home in Mt Eliza.
21 A search of the premises resulted in a number of items being seized, including numerous Ziplock bags above the kitchen fridge and which were also concealed within the vents of the rangehood. A computer laptop was hidden behind a canvas print hanging in the master bedroom.
22 You provided the PIN code for your mobile phone which police also seized. The phone was examined and was found to contain a number of conversations which had occurred between 25 July 2018 and 19 December 2018. The conversations were between you and various contacts and contained clear references to the trafficking of cocaine. The conversations include information about how the contacts would receive drugs from you – that is, where they were to be placed for collection and how payment was to be made. There were various terms used to describe the drug in order to disguise the true nature of the conversations.
23 An extract of the relevant exchanges was included in the Summary of Prosecution Opening. Upon further enquiry, I was told by Mr Saunders who appears and appeared on behalf of the Crown at the plea hearing that the extract was the sum in total of the relevant exchanges for the purposes of Charge 2. I have read these and taken them into account in sentencing you.
24 There were also Wicker messages which were sent under a username of 'Johnconner999' in April 2019, which included a discussion about the tracking of packages and having 'two residential clean addresses'.
25 The conversation is as follows:
'- Contact "elsigo": Offender - 'Hey Sig, I’ll grab a 25g tracked please mate'
- Contact ‘Tesla321’: Tesla321 - 'Let’s deal 15 gr or 20 gr and I give you better price by gr bro…so you don’t want to deal?...you order to other seller?'
O Offender - 'Yes I do want to deal but charging me more than
Wall Street pricing on here isn’t a good way of getting my business…sorry bro I don’t mean to be rude, I appreciate your efforts, but it’s 840 euro for 12g on wall st and 1080 on here?'O Tesla321 – 'If you take 20 gr, will do 75 gr for you so price wil be 1500 +30 for 2 shipping'
O Offender – 'Yeah that’s fine, I will grab a 10g. I will message you when I’m ready to go next week. Thanks bro'.
O Offender –'How many addresses have you got for work?...better way for top success rate is 10 gr by pack, think is top for your security and mine'
O Offender – 'Yeah I agree. I have two residential clean addresses'.
26 I query, actually having read that, whether in fact the last conversation was from you or the other party. But in any event:
O Offender – 'Yeah I agree. I have two residential clean addresses'.
O Tesla 321 – 'ok so if you need 15 or 20, that’s possible without problem, just let me know bro…thanks'
O Offender – 'Will do. Thanks for the great service'.
- Contact ‘ndirect’ to Offender: ‘I can confirm it was definitely sent out my friend it has been a long while now which is concerning…I hope it will arrive by Wednesday if not we will sort something out my friend…Pls keep us updated my friend we have had order arriving in Aus a lot…I still hopeful as well mate'.
27 Further, the prosecution relies on emails which were received from a cryptocurrency wallet where the account concerned revealed a number of outgoing transactions which were paid for in GPB and Euro.
28 Inspection of your laptop showed that you had previously tracked international consignments.
29 The basis for Charge 3 is that on 19 April 2019, whilst conducting the police search, police found five plastic bags containing white powder – these were underneath a wooden storage box on the mantle in the living room. The substances had a combined gross weight of 4.6 grams and purities ranging from 53 to 68 per cent – they tested positive for cocaine.
30 The basis for Charge 4 is that on 19 April 2019, police also found four items of dried green vegetable matter above the fridge in the kitchen at your house. Analysis confirmed that the matter was cannabis with a combined weight of 1.4 grams.
31 The basis for Charge 5 is that on 19 April 2019, police also found a Ziplock bag in the side drawer of the master bedroom at your house. The bag contained a single white tablet and they found a similar tablet on the mantle in the living room. The tablets were Xanax – for which you had no prescription.
32 You were arrested on 19 April 2019 and taken to the local police station where you were interviewed.
33 You largely declined to answer questions relating to the offending save that when asked whether you had a legitimate reason for possessing $3,120 in cash, which was also found at your premises, you replied that you were a builder and sometimes got cash from your clients. You said that you had placed the money in a hidden spot for safety. This explanation was accepted by the police and this money was returned to you and forms no part of the allegations against you.
34 You were charged on 19 April 2019 and the matter was resolved at a committal mention in July of last year.
35 Mr Hogan-Keogh, your offending is serious and calls for a punishment which is just and adequate in all of the circumstances, and your offending must be appropriately denounced. In assessing the seriousness of your conduct which is the subject of Charge 1, I have taken into account that there were a number of transactions in which you engaged in a bid to import cocaine into the country, and that your offending spanned a number of months. Indeed, you did import the drug into the country and the only reason you did not possess it was that it was intercepted.
36 Further, the amount of cocaine that you imported significantly exceeded the threshold for a marketable quantity, being between 35 and 49.5 times the threshold.
37
I was told that you imported the cocaine in order to feed your own habit-that you had developed a dependency on cocaine several years ago, and were told by some friends that you could source it on the black web. You were already leading a rather introverted existence, spending a good deal of your free time on the internet, having become addicted to gaming online and gambling. You gave evidence that you imported cocaine on a number of occasions, trying different sources to do so when deliveries did not come through. I was told that you might consume between 1 gram and 7 grams per day, and spent about
$2000 per month on the drug. I was told that when you did not receive cocaine from an online order, you assumed that you had been scammed so ordered more elsewhere, and obtained the drug from some of your friends when you needed to.
38 I accept that for the most part, the importations that you engaged in were lacking in sophistication, with most of the items being addressed to you at your home address. I also accept that some of the individual quantities that you imported were not very large, although some were rather substantial. Further, there is no evidence that you were indulging in a lavish lifestyle, albeit that you were in a position to afford cocaine purchases on a fairly constant basis. In this respect, I accept that you largely funded these purchases from your bricklaying business income.
39 I was told that you trafficked to friends on rare occasions when you had some cocaine to spare and put the money into making more purchases. You gave evidence that importing the drug was never about making money. While the evidence of trafficking conversations is somewhat confined, the hidden Ziplock bags and the conversation that you had on Wicker is suggestive of a broader and more commercial operation in my view. However, I cannot be satisfied of this beyond reasonable doubt, so I will put those suspicions to one side. Having said that, as importing a drug purely for your personal use is a defence, under the Commonwealth legislation by pleading guilty to the charge you have made the admission and in any event you have admitted to trafficking some of the drug which you imported.
40 You have one prior court appearance in January 2000, these were driving matters when you were a P Plater. I do not regard this prior matter as having any relevance to the matters now before me. On the basis of the evidence given by your sister and the character references, I accept that apart from this offending now before me you are of otherwise good character.
41 I have taken into account all of the evidence given by you and by your sister; your sister said that she was thankful that your offending had been discovered as it had brought things to a head-that, previously, you had not been open with her as to how you were going, but that since you were arrested, you have opened up to her and have told her how ashamed you are of your offending. She said that your family has all stood by you, and that you have expressed your gratitude for this.
42 She said that you are a simple person and that you have never led a lavish lifestyle; she was not aware of your problems with cocaine although she had noticed that you were chattier than usual on occasion at family gatherings.
43 You are no longer abusing cocaine, which was evidenced by the clear drug screens which were tendered at the plea hearing. I was told that you were able to get off cocaine with the help of your GP, and you gave evidence that you no longer own a computer or mix with drug takers in a bid to stay drug and addiction free.
44 I take into account your background:
45 You are 39 years old. You attended school till midway through Year 11, then left and entered the work force, working as a sales cadet in a car dealership, and you also obtained a builder’s licence. You worked as a brickie’s labourer for six or seven years. You moved to the UK in 2004 and worked as a bricklayer there, returning to Melbourne in 2007 where you started your own bricklaying business. You continue to work as a self-employed bricklayer and employ a team of up to seven subcontractors. You work six or seven days a week. You gave evidence that when you were taking cocaine, your business did not go so well as you were only able to work three days a week. Now that you are drug free, your ability to work has increased significantly and you have a very solid workload at present. You said that your business is highly dependent on you running it and essentially could not survive without your input.
46 You have a partner and a 15 month old daughter. You are a devoted father, and do what you can to support your child and your partner in her working life. You said that you were glad that your offending had been discovered, as your partner was about to leave you, and that your arrest and all that followed had been a circuit breaker in your relationship. You said that you took the cocaine in order to help you cope with feeling exhausted after work and also gelled with you staying up all night playing online poker. You would sometimes binge on weekends, staying up all night when you had friends over. You would then crash and take Xanax in order to recover. You said that since being off drugs for a period of about 10 months, you have never felt better, although you are feeling somewhat anxious at the prospect of going to gaol.
47 I take into account in a general way the report of Mr Cummins psychologist, dated 3 February 2020. He said that as far as he could ascertain, as at the time of the offending, you did not attract any diagnosis other than a Stimulant Use Disorder, although he said that he would need to speak with your partner in order to further ascertain the state of your mental health and drug use at the time of your offending. He said that, at interview with you, you presented as being mildly anxious but were not obviously depressed.
48 There is nothing in Mr Cummins’ report which detracts from your moral culpability, which I find is quite high-although, it is not as high as it might have been if you were not addicted to cocaine yourself at the time that you were offending. Further, I have accepted that the scope of your trafficking was quite small and engaged in occasionally so as to fund your own purchases from time to time. As Mr Singh said on your behalf, you were not part of some drug syndicate involved in distributing drugs as part of a drug trafficking business, but you were a principal in the itself, albeit that there was not a hierarchy. In the circumstances, your offending is serious enough.
49 I have also had some regard to the letter from Dr Kerr dated 3 February 2020, but as he is not a psychologist or psychiatrist, I have not factored in his remarks in respect of your mental state.
50 Mr Singh submitted that if you were to go to gaol, your business would suffer and your family would suffer to the point where I ought factor in hardship to them. At least that was his submission at the original plea hearing. He said that it was not necessary for the purposes of Commonwealth offences to find exceptional hardship to third parties. However, he now accepts that this is not the case. I cannot, in the circumstances, factor in hardship to your family if you were to go to gaol. It is conceded by Mr Singh that the hardship to your family would not amount to exceptional hardship.
51 On the other hand, I do take into account that this would be your first time in gaol, and that your concern for your partner and family would make time in gaol harsher than it would otherwise be. Also I take into account that you spent five days in custody upon your arrest which served as a most salutary experience.
52 I allow for a significant discount in the sentence that I would otherwise impose because of your facilitation of justice. In entering pleas of guilty at an early stage, which was accepted by the prosecution, you have saved the witnesses the time and trouble of giving evidence and you have saved the community the time and expense of running contested proceedings. Further, although you did not give an overly responsive record of interview, which is your right, I accept that your expressions of remorse and shame have been heart felt and I also have factored in that you cooperated with police by giving them the PIN number to your phone, which assisted them in their investigation. It is to be hoped that you continue to develop insight into the seriousness of what you have done-not only as it has affected you but how harmful it was to provide drugs to others, regardless of whether others were up for this or not.
53 I also accept that your name and reputation in your local community has suffered a significant blow, although it does not seem that this has negatively impacted on your business.
54
In view of the nature of your offending, but also in view of the fact that you have been drug free for some time, that you are of otherwise good character, that you have a strong work ethic and strong family support as well as heartfelt remorse, I find that your prospects of rehabilitation are very good and I need only place minimal weight on specific deterrence and the protection of the community. However, strong weight must attach to general deterrence in a bid to deter others from behaving as you have. I do not accept that there is any reason why you ought be less of a vehicle for this consideration. As
Mr Saunders said in his written submissions, detecting offending of the kind in which you engaged is often difficult, and there are great social consequences which flow from the movement of drugs into Australia and from their distribution here.
55 In sentencing you, I have also factored in current sentencing practice as far as I can, but bearing in mind that this is but one sentencing consideration and not a controlling one.
56 Your Counsel submitted that if you were to be imprisoned your business would suffer immeasurably and that in all of the circumstances, which, he submitted were unique, a recognisance release order was appropriate in respect of Charge 1 and non-custodial dispositions were appropriate in respect of the other charges.
57 Mr Saunders, on behalf of the Crown, submitted that nothing short of an immediate gaol term was appropriate in respect of Charge 1 and that this ought involve a head sentence and a non-parole period - this translated as a submission, in effect, that three years gaol would not suffice to adequately address all relevant sentencing considerations.
58 Mr Hogan-Keogh, after considering your case at great length, and all relevant sentencing considerations, I am afraid that your offending is too serious to do anything other than to sentence you to a term of imprisonment to be served immediately. In view of the matters in mitigation in your case, I have done what I can to keep the gaol term to a minimum.
59 Would you please stand up.
60 You are convicted of each of the offences.
61 You are sentenced as follows:
62 Charge 1- you are sentenced to four years' imprisonment to commence today and I direct that you are to serve 18 months' imprisonment before becoming eligible for parole.
63 Charge 2- You are sentenced to six months imprisonment, which is commenced today, if I need to say that, as it is a State sentence.
64 Charges 3, 4 and 5, you are fined an aggregate sum of $1,000.
65 I grant you a stay of three months from the date of your release from gaol for the payment of this fine.
66 If not for your pleas of guilty in respect of Charges 1 and 2, I would have sentenced you to a total effective sentence of six years' imprisonment with a non-parole period of four years’ imprisonment.
67 I declare that you have already served five days by way of pre-sentence detention.
68 Take a seat for the moment, please, sir.
69 Is there anything arising?
70 MR SAUNDERS: No, Your Honour.
71 MR SINGH: No, Your Honour.
72
HER HONOUR: All right. Yes, thank you, if you could please remove
Mr Hogan-Keogh.
73 Thank you, we will now adjourn.
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