Keen v The King

Case [2024] NSWCCA 157


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Keen v R [2024] NSWCCA 157
Hearing dates: 1 May 2024
Date of orders: 26 August 2024
Decision date: 26 August 2024
Before: Wilson J at [1];
Dhanji J at [12];
Yehia J at [13]
Decision:

(1)   Extend the time within which to appeal and grant leave to appeal.

(2)   The appeal against sentence is allowed.

(3) The sentence imposed by Scotting DCJ on 19 August 2022 in respect of the Code offence is quashed and in lieu thereof the applicant is sentenced as follows:

(a) For the State offence, a term of imprisonment of 5 years, with a non-parole period of 3 years and 9 months, to date from 21 February 2021. The non-parole period will expire on 20 November 2024, and the head sentence will expire on 20 February 2026.

(b) I decline to make a finding of special circumstances because to do so would be futile taking into consideration the sentence to be imposed for the Code offence.

(c) For the Code offence, I impose a term of imprisonment of 7 years, with a non-parole period of 3 years and 6 months, to date from 21 February 2022. The non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029.

(4)   The effective overall sentence is 8 years, with a non-parole period of 4 years and 6 months to date from 21 February 2021. The total effective non-parole period will expire on 20 August 2025, and the head sentence will expire on 20 February 2029.

(5)   The applicant will be eligible to be released on parole on 20 August 2025.

Catchwords:

CRIME – Appeals – appeal against sentence – parity – aid and abet in an attempt to possess a commercial quantity of cocaine – assessment of comparative culpability of co-offenders – extent of disparity not justified – appeal allowed – resentence

Legislation Cited:

Criminal Code (Cth), ss 11.1(1), 11.2(1), 307.5(1)

Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Cases Cited:

Assie v R (Cth) [2020] NSWCCA 249

Cameron v R [2017] NSWCCA 229

Carl v R [2023] NSWCCA 190

Chamon v R [2020] NSWCCA 112

Edmonds v R [2022] NSWCCA 103

Giles-Adams v R; Preca v R [2023] NSWCCA 122

Hung v R [2023] NSWCCA 172

Island Maritime Limited v Filipowski (2006) 226 CLR 328; [2006] HCA 30

Lupica v R [2024] NSWCCA 111

Mammone v R [2013] NSWCCA 95

Martellotta v R [2021] NSWCCA 168

Ooi v R [2023] NSWCCA 97

R v Barkl; R v Dumbrell; R v Theobald [2022] NSWDC 760

R v Barkl; R v Dumbrell; R v Theobald [2023] NSWCCA 309

R v Butler [2024] NSWCCA 133

R v Butler [2024] NSWDC 79

R v Grncarski (District Court (NSW), Girdham SC DCJ, 15 December 2023, unrep)

R v Humphrys [1977] AC 1

R v Keen [2022] NSWDC 369

Rogers v The Queen (1994) 181 CLR 251; [1994] HCA…

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Keen v The King [2024] NSWCCA 157
Case
[2024] NSWCCA 157
Decision Date

CaseChat Overview and Summary

In the High Court of Australia, the case of Keen v The King was heard. The appellant, Keen, was found guilty of aiding and abetting in an attempt to possess a commercial quantity of cocaine. Keen appealed against the sentence imposed on him, contending that the disparity between his sentence and that of his co-offenders was unjust and warranted review. The primary legal issue before the court was whether the significant disparity in the sentences between Keen and his co-offenders, who were involved in the same criminal activity, warranted an intervention by the court to ensure parity in sentencing.

The court examined the principles of sentencing and the importance of ensuring that sentences reflect the relative culpability of offenders. It was noted that while the trial judge had considered the comparative culpability of the offenders, the significant disparity in the sentences warranted further scrutiny. The court emphasised that while individual circumstances of each offender must be considered, the overall disparity must be justified. In this case, the court found that the extent of the disparity in the sentences was not adequately justified, leading to a conclusion that the appeal should be allowed.

Consequently, the High Court allowed the appeal and remitted the matter to the Court of Appeal for resentencing. The court underscored the necessity of ensuring that sentences are proportionate and reflect the culpability of each offender. The final orders of the court were that the appeal against sentence be allowed, and the matter be remitted to the Court of Appeal for resentencing to ensure that the sentences imposed are consistent with the principles of parity and proportionality in sentencing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Legal Principle Established

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