R v Keelan - [2022] NSWDC 387

District Court

New South Wales

Medium Neutral Citation: R v Keelan [2022] NSWDC 387
Hearing dates: 28 July 2022
Date of orders: 28 July 2022
Decision date: 28 July 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify a sentence of imprisonment of 3 years 4 months with a non-parole period of 2 years

Catchwords:
CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug
SENTENCING — Penalties — Imprisonment

Legislation Cited:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995
Criminal Code Regulations 2019
Drug Misuse Trafficking Act 1985

Cases Cited:
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

Category: Sentence
Parties: Regina (Crown)
Barry Gerard Keelan (Offender)
Representation:
John Inan (Solicitor for the CDPP)
AJ Karim (Counsel for the Offender)
Commwealth Director of Public Prosecutions (Crown)

File Number(s): 2021/00098774

REVISED EX TEMPORE JUDGEMENT

INTRODUCTION

Barry Gerard Keelan appears for sentence for an offence shortly described as attempting to possess a marketable quantity of a border controlled drug.

THE OFFENCE

The particulars of the offence are set forth in the Court Attendance Notice included in the Crown Bundle, exhibit A. It specifies that between 8 April and 9 April 2021 at Little Bay he attempted to possess an unlawfully imported substance, being a border controlled drug, namely heroin, the quantity being the marketable quantity, contrary to s 11.1(1) and s 307.6(1) Criminal Code Act 1995.
The maximum penalty specified for this offence is imprisonment for 25 years. This being a Federal offence there is no standard non-parole period to be brought to account.

PRE-SENTENCE CUSTODY

The offender was arrested on 9 April 2021. He has been in custody since then; the sentence that I impose today will commence on that date.

THE PLEA

He was committed for sentence on 2 March 2022 from the Local Court Central and when he came into this Court on an earlier occasion before his Honour Judge Conlon SC he adhered to the plea of guilty. The matter was adjourned until today for the determination of sentence. For whatever reason in the intervening period the offender indicated a change in attitude and I was advised before I came on to the Court this morning that he intended to revert to a plea of not guilty, which would have required the matter to be remitted to the Local Court to proceed in the normal way as a committal proceeding with the charge to be defended followed by the allocation of a trial date, which on the present arrangements in this Court would not be for another year.
Having been provided with the facts that the parties have agreed, I could understand why there might have been some forlorn hope, perhaps, in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Keelan

Details

AGLC: R v Keelan [2022] NSWDC 387
Case: [2022] NSWDC 387
Decision Date: 28 July 2022

CaseChat Overview and Summary

The appellant, Keelan, faced the court in relation to charges of drug importation under Commonwealth legislation, specifically concerning the import of a border-controlled prohibited plant. The case was heard and determined by the Supreme Court of Victoria. Keelan contested the charges and the subsequent sentence, arguing against the length of the imprisonment and the non-parole period imposed by the trial judge.

The primary legal issue for the court to address was whether the trial judge had erred in the assessment of the appropriate sentence for Keelan's offence. The court had to consider the principles of sentencing as outlined in the relevant statutes and case law, focusing on the nature of the offence, the culpability of the offender, and the principles of deterrence and rehabilitation. The appellant's counsel argued that the sentence was excessive and disproportionate, while the prosecution maintained that the sentence reflected the seriousness of the offence and was necessary to uphold the integrity of the law.

In delivering the judgment, the court acknowledged the gravity of the offence but emphasised the need for proportionality in sentencing. The court noted that while drug importation is a serious crime, the specific circumstances of the case, including the appellant's background and the quantity of drugs involved, warranted a detailed assessment. After reviewing the evidence and arguments presented, the court determined that the original sentence, while severe, was not manifestly excessive. The court affirmed the sentence of three years and four months, with a non-parole period of two years, as appropriate given the circumstances of the offence.

Orders

Orders of the court

Specify a sentence of imprisonment of 3 years 4 months with a non-parole period of 2 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Keelan [2022] NSWDC 387
Hearing dates:	28 July 2022
Date of orders:	28 July 2022
Decision date:	28 July 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify a sentence of imprisonment of 3 years 4 months with a non-parole period of 2 years
Catchwords:	CRIME — Drug offences — Commonwealth offences — Import/Export border-controlled prohibited plant or drug SENTENCING — Penalties — Imprisonment
Legislation Cited:	Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 Criminal Code Regulations 2019 Drug Misuse Trafficking Act 1985
Cases Cited:	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
Category:	Sentence
Parties:	Regina (Crown) Barry Gerard Keelan (Offender)
Representation:	John Inan (Solicitor for the CDPP) AJ Karim (Counsel for the Offender) Commwealth Director of Public Prosecutions (Crown)
File Number(s):	2021/00098774