Director of Public Prosecutions v Keane

[2024] VCC 495

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-00540
Indictment No. L12452552

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASEN KEANE

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2024
DATE OF SENTENCE:	19 April 2024
CASE MAY BE CITED AS:	DPP v Keane
MEDIUM NEUTRAL CITATION:	[2024] VCC 495

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                Sentence – Pleas of guilty - Trafficking in drug of dependence (2) – Possess drug of dependence – Possess substance, material, documents or equipment for trafficking drug of dependence – Possess trafficable quantity of firearms – Recklessly dealing with proceeds of crime – Related summary offences – Possess ammunition without licence – Failure to comply with direction to assist -  Duration of trafficking single day – Sole trader of trafficking business – Quantity of cash found significant but cannot find this was proceeds of drug trafficking enterprise (charge recklessly deal with proceeds of crime) – Prior criminal history negligible relevance to this matter – Delay - Difficult childhood due to father’s substance abuse issues – Exposed to violence and unlawful activity from young age – Determined not to take drugs but prepared to traffick drugs – Moral culpability high

Legislation Cited:         Sentencing Act 1991 (Vic)

Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; Biba v The Queen [2022] VSCA 168

Sentence: Convicted and sentenced to Total Effective Sentence of 4 years’ imprisonment with a non-parole period of 2 years and 3 months’ imprisonment – Presentence detention of 39 days’ imprisonment declared as having already been served as part of the sentence imposed – Fine imposed on related summary offence of possess ammunition without licence - s.6AAA Sentencing Act 1991 (Vic) declaration made – Ancillary orders -Forfeiture and Disposal

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Cookson	Solicitor for Public Prosecutions
For the Accused	Ms E. Clark	Fayman Lawyers

HER HONOUR:

1Jasen Keane, you have pleaded guilty to:

·        two charges of trafficking in a drug of dependence,

and one charge each of:

·        possession of a drug of dependence

·        possession of substance, material, documents, or equipment for trafficking in a drug of dependence

·        possession of a trafficable quantity of firearms, and

·        recklessly dealing with proceeds of crime.

2The maximum penalties for these offences are as follows:

3Trafficking in a drug of dependence has a maximum penalty of 15 years’ imprisonment; possession of a drug of dependence has a maximum penalty of five years’ imprisonment; and the remaining offences you have committed which are on the indictment have maximum penalties of 10 years’ imprisonment.

4You have also pleaded guilty to the summary offence of possessing ammunition without a licence, and to one charge of failing to comply with a direction to assist.  The maximum penalty for possess ammunition is 40 penalty units, whilst the offence of failing to comply with a direction to assist has a maximum penalty of two years’ imprisonment.

5In sentencing you, I must factor in the maximum penalties, as these reflect the seriousness with which Parliament regards each of the offences that you have committed.

6The prosecution opened your matter as follows:

7You were 25 years old at the time of the offending and living in a unit in Oakleigh South.

8The charges against you concern a quantity of drugs and other materials which were found at an Airbnb apartment in Queens Road, Melbourne.

9On 15 October 2020, police executed search warrants at the Queens Road apartment.  You were present and were arrested in the course of the warrant being executed.  The apartment had been rented in your own name.

10A number of items were seized by police, as follows:

·        three mobile phones

·        a quantity of cash found in your “bum-bag” and a quantity of cash found in your wallet.

·        a set of various keys and remote controls.

·        a vacuum attachment with white powder residue inside it.

·        a hydraulic press – this in part gives rise to Charge 4.

·        one box containing three press dies.

·        one Ziploc bag containing a further snap-lock bag with white powder.

·        one Ziploc bag containing white powder.

·        one Ziploc bag containing a white substance.

·        a black handgun, “Walther P1” 9mm, and a loaded magazine.

·        another black handgun “Bryco Arms Jennings” .22” and a loaded magazine.

·        a brown pump-action shotgun “SKB Arms” 12-gauge.  The possession of those guns gives rise to Charge 5.

·        a bag containing 15 loose bullets and another bag containing 21 bullets.

·        Also one CCI standard velocity 22LR-22 long rifle lead round nose full box 500 cartridges, and one Winchester 9mm Lugar 147 grain – 33 rounds.

·        further, a box containing three more boxes of the long rifle lead round nose which in total contained 1,350 rounds.  Your possession of each of these pieces or items of ammunition gives rise to summary Charge 13.

·        They also found two more sets of various keys and a remote.

·        six containers, containing various Ziploc bags with white powder and handwritten markings.

·        two Ziploc bags containing numerous empty “deal bags”.

·        various snap-lock bags containing various sums of cash as well as seven containers and a large Ziploc bag containing more Ziploc bags with quantities of cash inside.

·        various Ziploc bags containing markings and rubber bands.

·        one food-saver vacuum pack sealer and a roll of film; and

·        five cash counters and two safes.

11Police also obtained warrants in relation to your car and seized a laptop computer.

12You gave “No comment” answers in a record of interview and refused to provide passcodes to two mobile phones seized by police.  This gives rise to summary Charge 20, failing to comply with directions to assist.

13The prosecution case is that as you were the only person present at the apartment, and the apartment was rented in your name, you were the “business owner” in respect of the trafficking operation run from the apartment.  The Crown alleges that you had exercised exclusive control over the drugs and firearms found within the premises and possessed the drugs which were found there in order to traffick these for your own personal profit.

14Subsequent analysis of the drugs resulted in the following:

15A mixture of 187.8 grams of a mixed substance was found to contain methamphetamine, with the level of pure methamphetamine being 145 grams.  This gives rise to Charge 2 – trafficking methylamphetamine.

16Further, a mixture of 16.3 grams of cocaine was found, giving rise to Charge 1 – trafficking cocaine.

17A mixture of 1.9 grams of MDMA was also found, giving rise to Charge 3 – possessing MDMA.

18A commercial quantity of methamphetamine is constituted by 250 grams of mixture or 50 grams of pure methamphetamine.  Therefore, the quantity referred to in the opening is not a commercial quantity by mixture, but between two to three times a commercial quantity by purity.  I do not sentence you on the basis of trafficking in a commercial quantity of methamphetamine – you are to be dealt with for trafficking simpliciter, which is put on the basis that the prosecution does not assert that you were aware of the purity of the methamphetamine and therefore lacked the mental state for trafficking in a commercial quantity.

19At the time of the offending, you were not licensed to possess any firearms.  I was told that the shotgun found in the apartment was not stored in a secure manner.  This is said to pertain to Charge 5, the summary offence, but I take it to be a matter to take into account by way of context information.

20A further matter to take into account is that the Bryco Arms Jennings .22-calibre handgun did not have a serial number.

21The total amount of money found at the apartment was $132,535.  $129,165 was contained within snap-lock bags, some of which depicted dates, weights of drugs sold, and moneys received for the quantities of those drugs.  $3,370 cash was found on your person.  The moneys referred to give rise to Charge 6, recklessly dealing with proceeds of crime.

22Mr Keane, your offending is serious and calls for a punishment which is just in all of the circumstances.  Your conduct must be appropriately denounced.

23You engaged in a significant drug-trafficking operation, when one has regard to the overall picture of what you were doing.  You were the apparent sole trader of this operation or business.

24I regard the trafficking of methylamphetamine as being a serious example of trafficking simpliciter in view of the pure quantity that was in your possession.

25Further, the trafficable quantity of firearms possessed by you gives me grave cause for concern, especially seeing two of the weapons were found with loaded magazines.  In sentencing you for this offending, I have also taken into account the number of weapons in your possession.

26I am prepared to infer that the apartment was being used as a hub for your trafficking business, in view of the various items police found there which are detailed in the prosecution opening.  In drawing this inference, I put to one side the quantity of cash found, as I am unable to take the view that this was proceeds from your drug trafficking in view of the charge of recklessly dealing with proceeds of crime.  However, in sentencing you for that offence, I factor in that the quantity of cash was significant.

27I was told that having seen the consequences of your parents using drugs during your upbringing, you had determined not to take them.  In relation to your parents use of drugs and your father engaging in drug trafficking, I sought some evidence in relation to this and your sister today has given evidence which supports the submissions made by your counsel that indeed it was the norm in your family life for your father in particular and his friends and some family members to partake in drugs and that they were a constant in your household as you were growing-up.  Also, that your mother would take drugs from time to time.  That, further, your father was often seen to be engaging in selling drugs to others. 

28Having determined not to take drugs yourself because of what you had seen in your household, it seems that you were prepared to traffick them nonetheless to other people as a money-making exercise.

29In all of the circumstances of this case, I find that your moral culpability is high.

30Strong weight must be given to general deterrence in a bid to deter others from offending as you have.  As is often said, and as well you know from your own experience and upbringing, drugs are a scourge on our community.  A strong message must be sent to others not to offend as you have.

31In sentencing you, I have borne in mind that you are charged in respect of one day of offending.  However, most sensibly, it was not submitted by your counsel,
Ms Clark, that your offending was confined to one day.  Having said this, I am mindful of the fact that the prosecution alleges a single date on the indictment, and I sentence you on this basis.

32You have one prior court appearance, namely on 28 July 2004 in the Magistrates’ Court.  You were dealt with for carrying a prohibited weapon without exemption or approval and behaving in an offensive manner in a public place.  Without conviction, the matter was adjourned for 12 months, and you were ordered to pay $200 to the Court Fund.  This prior matter is quite dated and has negligible relevance to the matters for which I now sentence you, in circumstances where you were 18 years old at the time.  The weapon charge on that occasion has slight, although negligible, relevance to the firearms charges for which I now sentence you.

33You have no other prior matters in the intervening period between 2004 and 2020 when you committed the offences before me.

34I take into account your background:

35You are now 38 years old.

36You are single and have no children.

37Your parents migrated to Australia in the early 1980s from their respective homelands – your mother from the Philippines, and your father from Scotland.

38Your father dealt with substance-abuse issues, and you and your sister’s childhood were very difficult because of this and as I said this was attested to by your sister in her evidence today.

39Predominantly, you were raised in public housing in St Kilda, and I was told that you were exposed to violence and unlawful activity from a young age.  I was told that you spent much of your time unsupervised.

40Your father passed away in 2012, and I was told that your best friend died whilst in custody.  Both events had a significant impact on you.

41Your mother suffers from “sympathetic dystrophy”, which is a medical condition that restricts her movements and means that she requires assistance with daily living.  You have provided this support in the past.  However, I was told that in your absence she will be cared for by a family friend who is now boarding at her home, as well as your sister.  I allow that time in custody will be more difficult for you because of your concern for your mother in your absence and the guilt that I was told you are experiencing in being unable to care for her as you have in the past.

42I was told that you are a devoted Christian and have been a member of your particular church since 2012.  You have been actively involved in providing mentoring to younger members of the church.  You are a musician and play a critical role as a mentor to younger artists within the hip-hop community.

43Significant character material provided on your behalf attests to these matters.  Your counsel advised me that since written submissions were provided in May last year, you have continued with your music, that you are expelled from the church, but once the case before me is over, you can be re-admitted.  It is evident that you continue to have your church’s support, and you have made significant contributions to its community.  Your counsel told me that you wish to regain respect from the church, and you hope that your experiences will provide guidance to others.

44Your work history involves a number of unskilled jobs, but more recently you have obtained positions with a marketing focus.  In 2019 you started a business managing Airbnb properties.  However, the COVID‑19 pandemic caused your business to fail.  At the plea hearing I was told that you were holding leases for five properties to be sub-let as Airbnb rentals when COVID‑19 hit, which resulted in financial disaster for you.  For a time you were on Centrelink, but in the context of being financially desperate I was told that you turned to the offending for which I now sentence you.

45Ms Clark told me that drug trafficking had been normalised in your life as a child, and that when you became financially desperate you resorted to what you saw when you were young and as I say there is evidence which supports this in keeping with what your sister has said today.  However, Ms Clark does not rely on the principles in Bugmy[1] so as to argue that you suffered a deprived childhood or that the offending in which you engaged was connected so as to reduce your moral culpability or the weight attaching to other relevant sentencing principles.  She told me that you were suckered into a world that you had tried to stay away from, in circumstances where previously you had not been in any significant trouble.

[1]Bugmy v The Queen (2013) 249 CLR 571

46You have no impairment of mental function, and there is no expert material which has been provided to the Court in this regard and I was told that it was not an issue in your case.

47I was told that you have never used drugs and you have not consumed alcohol in more than 10 years.

48I accept that there has been a significant delay in this matter since you committed the offences for which I now sentence you.  You had been on bail since 6 November 2020 with no breaches of the conditions.

49Although some of the delay has been contributed to by you for various reasons, a good deal of this has not, also.  Insofar as you have been responsible for the delay, it might well be said that it was within your power to reduce your anxiety by having the matters dealt with at an earlier stage.  In any event, I allow that you have had the anxiety of these matters hanging over your head for a protracted period.  Further, I accept that during the delay period you have made good progress towards rehabilitation, including the fact that you have not been charged with any further offence.  It is also true that during the delay period there was a more serious charge hanging over your head for a significant portion of that time.

50I accept that you have used the delay period productively to engage with your church and in growing your marketing business as well.  You are involved in social media and digital marketing, and you have two major accounts for this.  You have two members of staff who will be able to continue running your business in your absence.  You obtained an adjournment before me at one stage to enable you to complete a deal with a prominent boxer in order to have him come to Australia to engage in boxing matches. 

51You have been unable to make the deposit fee for this boxer, his name being
Mr Pacquiao.  However, your employees will try to complete this deal in your absence.  You are hoping that more opportunities of this nature will present themselves in the future, especially if the deal with Mr Pacquiao is secured.  Obviously, you are most entrepreneurial, and I accept that you have a solid work ethic.

52I have also factored in that in fully complying with your bail conditions you were allowed a variation of bail at one stage in order to travel overseas, which you did, returning to face these proceedings.

53In sentencing you, I allow for a fairly substantial reduction in sentence due to the stage at which you entered pleas of guilty.

54You conducted a contested committal hearing, which is your right.  I was told that the issue at the committal hearing was in relation to the lawfulness of evidence that was obtained against you.  Ultimately, you abandoned this aspect.  You sought a sentence indication in this court in May of last year, when the charges before me and the factual basis were set out, although a little different to the current basis and charges. 

55However, you did not accept the sentence indication, and the matter was listed for a directions hearing.  I was told at the plea hearing that there was some adjustment to the factual basis after the sentence indication hearing, and some tweaking in relation to some charges.

56In all the circumstances, your pleas of guilty were not entered at the earliest stage, but ultimately you have entered pleas of guilty, which has saved the witnesses the time and trouble of giving evidence at trial, and you have saved the community the time and expense of running a trial.

57It is also to be factored in that at one stage, as I understand it, you were facing a more serious charge.  It was submitted that your pleas of guilty were also indicative of remorse for your conduct, and that remorse is also evident in the many character references which were tendered on your behalf.  That is, what the character referees have said that you had expressed to them, and also it was submitted that your remorse was indicated by what you had done for your community since being on bail.

58Although taking the stance that you did at the contested committal hearing is not too consistent with remorse, ultimately you have admitted your guilt and have taken positive steps to address your wrongdoing in a practical way in the community, as well as making appropriate expressions of remorse to many people who know you.  Therefore, I accept that you are remorseful for your offending, and it is to be hoped that you have appropriate insight in relation to the seriousness of it, especially insofar as it had the potential to negatively impact the lives of others.

59I also allow in your favour that your preparedness to plead guilty to the offences has contributed to the reduction in the backlog of trials to be heard in this court due to the pandemic, in keeping with Worboyes, but factoring in Biba v The Queen.[2].  Notwithstanding that this backlog has now been addressed, you are still entitled to an appropriate allowance because of Biba v The Queen.

[2][2022] VSCA 168 at [26]

60I have also factored in that you were prepared to plead guilty, notwithstanding that apparently you had triable issues in relation to the admissibility of evidence relied on in proof of the charges.

61I allow for the fact that this is your first time in custody, which will make it harder for you than for a more seasoned offender.

62In all the relevant circumstances, including your good solid family and community support and all the other matters that I have mentioned that are in your favour, I find that your prospects of rehabilitation are very good and that I need place only minimal weight on specific deterrence and protection of the community.  However, I must place strong weight on general deterrence in a bid to deter others from offending as you have.  As your counsel properly conceded, denunciation and the imposition of just punishment are also primary sentencing purposes in your case.

63In sentencing you, I have had regard to the table of cases which were provided in these proceedings.

64I have had regard to sentencing practice, bearing in mind that that is but one consideration, and not a controlling one, in sentencing you. 

65In sentencing you, I apply the principle of totality, bearing in mind that your offending is charged in respect of one day, although as I said it is not submitted that this was the only day that you offended.  However, as I have said, you are charged in respect of one day of offending, and your offending was all uncovered at the same time when the police searched your premises. 

66Having said that, I am of the view there ought to be some cumulation as between some offences to reflect the fact that they are separate offences in their nature, notwithstanding that each of these related to various aspects of your drug-trafficking business.

67I accept the submission from your counsel that it is appropriate to impose a sentence which enables you to apply for parole at an earlier stage than might otherwise be the case, all relevant matters considered.

68You are convicted of each of the offences.

69I make the ancillary orders which are sought by the prosecution, and which are not opposed by you.

70In relation to the summary offence of possess ammunition without a licence, you are fined $1,000.

71In relation to the charge of failing to comply with a direction to assist, you are sentenced to five months' imprisonment.

72In relation to the offences on the indictment, you are sentenced to the following periods of imprisonment:

73Charge 1:  15 months.

74Charge 2:  Three years.

75Charge 3:  Four months.

76Charge 4:  10 months.

77Charge 5:  Two years.

78Charge 6: 10 months

79The sentence on Charge 2 will be the base sentence.

80I direct that two months from the sentence on Charge 1, and 10 months from the sentence on Charge 5, be served cumulatively with each other and the base sentence, but that otherwise the sentences imposed be served concurrently, producing a total effective sentence of 4 years.

81I direct that you serve two years and three months before becoming eligible for parole.

82I declare that you have already served 39 days by way of pre-sentence detention.

83If not for your pleas of guilty, I would have imposed a total effective sentence of six years' imprisonment with a non-parole period of four years.

84MS CLARK:  As Your Honour pleases.

85MR COOKSON:  As your Honour pleases.

86HER HONOUR:  All right, now do you wish to have a word with your client over the airways?

87MS CLARK:  If I may, Your Honour, yes.

88HER HONOUR:  All right.  Yes, so I will adjourn the court and we will vacate.  If you just let my tipstaff know when you have had a chat with your client.

89MS CLARK:  Thank you, Your Honour.

90HER HONOUR:  Thank you.

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