R v Keen

[2022] NSWDC 369

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Keen [2022] NSWDC 369

Hearing dates:

2 August 2022

Date of orders:

19 August 2022

Decision date:

19 August 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1        The offender is convicted.

2        For the State offence, I impose 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.

3         For the Federal offence, I impose a term of imprisonment of 9 years with a non-parole period of 5 years to date from 21 February 2022. The non-parole period will expire on 20 February 2027 and the head sentence will expire on 20 February 2031.

4        The offender will be eligible to be released on parole on 20 February 2027.

Catchwords:

CRIME — Drug offences — Commonwealth offences

CRIME — Drug offences — Supply prohibited drug — Knowingly take part in supply

SENTENCING - objective seriousness - deterrence - aggravating factors - mitigating factors –penalty

SENTENCING PRINCIPLES - good prospects of rehabilitation - remorse - plea of guilty

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code (Cth)

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Cameron v The Queen (2002) 209 CLR 339

Danial v R [2008] NSWCCA 15

Johnson v The Queen (2004) 78 ALJR 616

R v El Karhani (1990) 21 NSWLR 370

R v Nguyen (2010) 205 A Crim R 106

R v Olbrich (1999) 199 CLR 270

Xiao v R (2018) 96 NSWLR 1

Category:

Sentence

Parties:

Regina (Crown)
Lloyd Norman Keen (Offender)

Representation:

Counsel:
L Fernandaz (CDPP)
B Rowe (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Office of Director of Public Prosecutions (Crown)
Hardinlaw (Offender)

File Number(s):

2021/89070
2021/362138

Publication restriction:

None

Judgment

1. Lloyd Keen (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence	Offence	Maximum Penalty and SNPP
2	Aid and abet in an attempt to possess a substance that had been illegally imported, namely a commercial quantity of a border-controlled drug, cocaine contrary to ss 11.1(1) and 307.5(1) and 11.2(1) of the Criminal Code (Cth)	Life and/or a fine of 7,500 penalty units
8	Knowingly take part in the supply of a commercial quantity of pseudoephedrine contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW)	20 years SNPP – 10 years

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Federal offence

3. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

4. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply to the sentencing of Federal offenders: Johnson v The Queen (2004) 78 ALJR 616 at [15].

5. The offender has entered a plea of guilty. For Commonwealth offences the Court must consider the offender’s willingness to facilitate the course of justice and can consider the utilitarian value of the plea: Cameron v The Queen (2002) 209 CLR 339 at [14] and Xiao v R (2018) 96 NSWLR 1 at [279]-[280]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]–[28]. The Crown case was a strong one. The offender’s plea has saved the need for witnesses to be called at trial, and the utilitarian value of the plea is high. I am satisfied that the offender’s plea indicates an acceptance of responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 25%.

6. I have had regard to the principles relevant to sentencing serious Federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J).

State offence

7. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

8. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

9. The parties presented an Agreed Statement of Facts for each matter. Each sets out the involvement of all relevant parties and is by necessity quite lengthy. I have taken the entirety of each document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to this offender to permit an understanding of the sentence imposed for each offence.

Federal offence

10. Between late February and March 2019, a Sydney-based criminal group was identified as attempting to take possession of a commercial quantity of cocaine to be imported from Mexico, concealed in aluminium ingots. The group consisted of Laurie Barkl, Kyle Butler, Raymond Dumbrell, Branislav Grncarski and Kevin Theobald and operated from the premises of Aviation Welding Services Pty Ltd (AWS) at Bankstown Aerodrome. The offender was identified as a person aiding and abetting the group in its attempt to get possession of the cocaine.

11. From about June 2018, persons in Australia and Mexico undertook activities in preparation for the importation of the cocaine concealed in aluminium ingots. These activities included the establishment of false commercial arrangements for the import of aluminium ingots and a number of dry run consignments.

12. On 5 February 2019 a shipping container loaded with 18 pallets of aluminium ingots arrived in Port Botany. Each pallet held 105 ingots.

13. On 6 February 2019, the ingots were inspected by Australian Border Force (ABF), at which time 188 of the ingots were found to contain a white substance that was later identified as cocaine. The suspect ingots had been hollowed out and compressed blocks of cocaine placed inside. A lead plate was then secured over the top of the cocaine and glued in place with an epoxy. The top cover was painted silver, with the suspect ingots having a glossy appearance when compared with the solid ingots. Each block of cocaine weighed approximately 0.5kg and was impressed with the letters “LMV”. The total amount of the cocaine was 188.16kgs with a purity of between 78-81%, amounting to 149.3kgs pure. The estimated wholesale value of the cocaine was between about $35 million and $48 million.

14. On 7 February 2019, the 188 ingots containing cocaine were seized by the Australian Federal Police. The remaining 1,702 ingots were repacked onto the pallets for delivery in a similar format to the original consignment. Listening devices were placed within the consignment.

15. On 19 February 2019 the ingots were delivered to the specified logistics provider, where they remained for eight days. Directions were given on 25 February 2019 to deliver them to Mr Butler at AWS.

16. At about 1.30pm on 27 February 2019, the consignment was delivered to AWS. The offender signed for the delivery and then used a forklift to unload the pallets and place them inside the warehouse. The offender then had a discussion with Mr Dumbrell and Mr Theobald before leaving in a vehicle. A short time later he returned and entered the warehouse. He then had a further conversation with Mr Theobald, before locking the warehouse and leaving in a vehicle.

17. At about 5.19pm on 27 February 2019, the offender opened a door of the AWS warehouse from the inside and pulled up the roller door a few minutes later. Mr Dumbrell and Mr Grncarski entered the warehouse through the roller door. The three men were then heard on the listening devices moving the ingots around in the warehouse. At the time, a forklift was being used to move the pallets of ingots around. The men were heard looking for particular ingots by reference to the numbers on the pallets, where ingots were located on the pallets and their appearance, with Mr Grncarski referring to how ingots looked before and commenting on the absence of epoxy. The conversation recorded that the men did not find what they were looking for.

18. I pause to note that the transcript of the conversation on this occasion recorded the use of the word “cocaine” by Mr Dumbrell, during the search for the ingots containing cocaine. This word in the transcript was disputed by the offender and I was asked to listen to the recording. Having done so, the word used by Mr Dumbrell at the time was “Ok” and not “cocaine”.

19. At about 6.13pm two pallets of ingots were loaded onto a utility vehicle registered to Mr Grncarski.

20. At about 6.48am on 28 February 2019 the offender telephoned Mr Butler discussing the delivery of the ingots and the need to make the paperwork “look right”.

21. At about 4.26pm on 4 March 2019 the offender was present at the AWS warehouse with Messrs Theobald, Barkl, Dumbrell and Butler. They were heard moving ingots around in the warehouse.

22. At about 4.00pm on 13 March 2019 the offender was present at the AWS warehouse and used the forklift to move pallets of the ingots around, inside the warehouse. Messrs Theobald and Butler were observed inspecting, counting, moving individual ingots by hand and taking photographs. The conversation recorded the men continuing to try to locate ingots of interest. Mr Theobald was recorded as saying “Mate 40 fucking million” and “40 million down the drain”. The offender left the warehouse at about 4.54pm in a vehicle.

23. On 5 April 2019, the offender exchanged text messages with Mr Butler about selling the aluminium ingots and how to determine their value.

24. Between about 1.00pm and 2.00pm and 3.15pm and 3.30pm on 15 May 2019, the offender assisted with loading the ingots onto a truck so they could be removed from AWS’ premises.

25. None of the criminal group or the offender had a lawful reason to possess the ingots.

26. The offender was arrested on 20 December 2020 in relation to the State offence. The other men were arrested on 30 March 2021.

State offence

27. In December 2020, ABF identified a consignment of Toyota side steps with irregularities. The consignment consisted of 10 boxes of side steps, with each box containing two steps. Within each step was concealed a large bag containing an average of 2.6kgs of pseudoephedrine. The bags had been glued into each step.

28. Police replaced the drug with pool salt and it was delivered as intended on 18 December 2020.

29. On 19 December 2020, Mr Theobald collected the consignment in a utility driven by him. He took it to the AWS warehouse, where it was unloaded by him and the offender.

30. On 20 December 2020 the offender attended the AWS warehouse. He took one of the side steps and placed it on a bench in the workshop. He was recorded on surveillance footage cutting the step causing white powder to spill out onto the bench that he had covered with a black tarp. He took a piece of the side step out of view of the camera. He then packed up the side step, the power tool that he had been using and the packaging that the side step had been shipped in. He left the warehouse and drove to his residence in Picnic Point.

31. At about 9.06am on 21 December 2020, the offender entered the AWS warehouse. During the day, listening devices recorded the offender, Mr Theobald and Mr Xavier using electric grinders and hand tools in the consignment room. Later the room was cleaned and vacuumed. The offenders knew that the consignment contained not less than a commercial quantity of pseudoephedrine.

32. At about 11.50am, the offender was driving a vehicle in Birch Street, Bankstown when he was stopped by Police. Tied down in the back of the utility was a package from the consignment.

33. The offender was arrested and cautioned.

34. He told Police that the box contained a side step that he was giving to a mate. Police located a Makita angle grinder with white powder on it. Police also observed white powder on the offender’s shoes.

35. He was conveyed to Bankstown Police Station and declined to be interviewed.

36. A search of AWS located four side steps that had been cut and the contents accessed.

The Offender’s Case on Sentence

37. The offender tendered the following documents:

1. Report of Dr Mark Milic, psychologist, dated 26 July 2022;

2. Character references of:

1. Con and Daisy Koutsos dated 11 July 2022;

2. Ian Baker dated 12 July 2022;

3. Gerrit Schoolderman dated 14 July 2022;

4. Robert West dated 14 July 2022;

5. Reverend Steve House dated 18 July 2022;

3. Letter of apology from the offender dated 2 August 2022;

4. Case Note Report from Department of Corrective Services;

5. List of lock-in days at MRRC Silverwater 2020-2022; and

6. Report of Dr Andrew Ellis, psychiatrist, dated 9 April 2020 relating to the impact of the pandemic on the mental health of prisoners in New South Wales.

The offender’s subjective circumstances, prospects of rehabilitation and remorse

38. The offender is presently 50 years of age.

39. He grew up in Mt Druitt, living with his parents and older sister. His father was a Vietnam war veteran and worked as a prison officer. He suffered emotionally from his war service and was often closed off. The offender’s mother was supportive and encouraged him to play sport. He attended a Catholic school and was an average student, leaving school after completing Year 10.

40. He completed a four year horticulture apprenticeship, working on the grounds of a private school. He then obtained work as a landscaper. At age 19 he suffered a serious thigh injury in a motor vehicle accident, prompting him to find lighter duties as a bartender. He always maintained an interest in practical work, and from time to time has performed labouring, spray painting and welding work. Between 2005 and 2011 the offender operated a business with a friend repairing boats and jet skis.

41. His work as a bartender introduced him to recreational drug use, including cannabis and amphetamine. He became embroiled in a party lifestyle for about the next eight years, with little regard for his future.

42. The offender has been in a long term stable and supportive relationship with his partner for about 10 years. He is very close to her family and they are supportive of him.

43. In 2011, the offender was involved in the manufacture of a large commercial quantity of prohibited drug.

44. In 2015, the offender was sentenced to imprisonment for 6 years and 3 months with a non-parole period of 4 years.

45. At the completion of the non-parole period of that sentence, he was sent on work release to do welding work at AWS. He got on well with the boss (Mr Butler) in this placement and he was allocated some space in the warehouse to restore a motor vehicle. He found himself more introverted after he was released from custody and spent long periods at work, where he became involved in the offences for which he is to be sentenced.

46. At the time of his arrest, he and his partner had saved money and planned to relocate to a regional area where they could afford to buy a house.

47. The offender expressed remorse to the psychologist for the harm done to the community and his family by his offending conduct. He has also expressed remorse to family members and that is reflected in some of the character references. I note that some of the referees did not have first-hand knowledge of his attitude to the offences but had been told about that by others in contact with the offender. In my view, this is probably a result of the COVID-19 restrictions on visiting prisoners in custody and it does not diminish the validity of those expressions of remorse. The offender has also expressed remorse for his actions to the prison chaplain in the course of many conversations with him.

48. The offender has found his most recent period of incarceration difficult, due to his classification and the conditions imposed in response to the pandemic. He estimated that he had spent 116 days confined to his cell. He is upset that he is not available to support his family, particularly his father who is recovering from a heart attack and due to have spinal surgery.

49. The offender is presently the leading hand of the painting crew at the MRRC. He has also undertaken some welding and metal fabrication work. He likes the work because it occupies his mind. He has undertaken the Positive Lifestyle Course and is due to commence a Substance Abuse Course. He has a good rapport with prison staff and other inmates.

50. In his letter to the Court, the offender apologised for his actions and displays insight into his conduct and the ways to avoid a repeat of that in the future. He feels ashamed of not being available to support his father and his daughter-in-law in her battle with breast cancer. He also regrets missing his grandmother’s passing and her funeral.

51. The entries in the Case Note Report refer to the offender as hardworking, reliable and polite. He is consistently described as a role model for other prisoners. The character referees similarly describe the offender friendly, capable and helpful.

Objective seriousness

Federal offence

52. The offender intended that his conduct would assist others to possess the cocaine concealed in the aluminium ingots. The offender received the consignment and signed for it when it was delivered. He assisted to unload the consignment using a forklift, bringing the pallets onto the warehouse, before meeting with Dumbrell and Theobald. The offender assisted others on three occasions over a two week period to try to locate the ingots which they believed contained the cocaine. The offender was a party to discussions about the delivery and making the paperwork “right”. Later, the offender was involved with discussions about the sale of the ingots and assisted by loading them onto a truck with a forklift so they could be disposed of.

53. The offender’s acceptance of the consignment assisted others to distance themselves from it. The offender was not a principal of the syndicate and acted as directed. He was a trusted participant in the activities to find the cocaine. The offender had some knowledge of what was to occur and accordingly his conduct involved some planning and pre-meditation.

54. The quantity of the drug (149 kg pure) was substantial being about 74 times the commercial quantity. The offender must have been aware that he was aiding and abetting in an attempt to possess a substantial quantity of drugs with a significant value.

55. The offender expected to be paid a not insignificant amount of money for his involvement in the offence.

56. I have taken into account the course of conduct consisting of a series of criminal acts that constituted the offence.

57. I have taken into account the maximum penalty for the offence.

State offence

58. The offender assisted Theobald to unload the consignment at the warehouse. He participated in cutting the side steps and accessing the drugs concealed inside over two days. The offender was aware of what was concealed in the side steps and was an active participant in undertaking a substantial process to remove the drugs. The offender knew that the amount of the drug was not less than the commercial quantity and that it had a significant value.

59. The drugs were in the offender’s possession for the purpose of supply.

60. I have taken into account the maximum penalty and the standard non-parole for the offence.

Deterrence

61. General deterrence is an important consideration in sentencing offenders for serious drug offences.

62. There is also a need for specific deterrence. The offender has spent time in custody for a serious offence involving the manufacture of a large commercial quantity of prohibited drugs. However, I have also taken into account that the offender has accepted responsibility for his actions and embarked on a genuine process of rehabilitation.

Aggravating Factors

63. The offender was on conditional liberty at the time of the offences.

Mitigating Factors

64. The offender has prospects of rehabilitation. The offender has a stable relationship and good social support. He was planning a move to the country to buy a house with his partner. It is very unfortunate and somewhat ironic that his work placement on his release from custody, landed him into an international drug syndicate. He has completed courses in custody and engages in meaningful work, which has earned him respect. He is getting to an age, where on his release, I am satisfied that the pro-social features of his life will outweigh the anti-social features.

65. The offender has demonstrated remorse. The offender has expressed remorse to the psychologist, his family and friends, the prison chaplain and the Court. He has accepted responsibility for his actions and understands the damage that drugs can do to the community. I am satisfied that he is truly contrite.

66. I have taken into account the impact of his incarceration on his family in coming to the appropriate sentence for the Federal offence.

67. I have taken into account Dr Ellis’ opinion regarding the impact of the pandemic on the mental health of prisoners in New South Wales, as well as the particular impacts of the restrictions imposed on the offender.

Other matters

68. I have taken into account the principle of totality in determining the appropriate sentence. There must be some accumulation of the sentences to be imposed to reflect the different criminality involved in the offences.

69. I have had regard to a number of comparative sentences relied on by the parties, taking into account the limitations inherent in that exercise.

Penalty

70. The offender conceded that a sentence of full-time imprisonment was the only appropriate sentence. I have had regard to s 5 Crimes (Sentencing Procedure) Act and s 17A of the Crimes Act 1914 and conclude that the concession was appropriately made, for the reasons I have set out in this judgment.

71. The offender has been in custody since his arrest on 21 December 2020. As a result of his arrest, his parole was revoked and he served the balance of his parole period (3 months and 18 days) in custody. I will backdate the sentences to be imposed on him to 21 February 2021 to take into account his period of pre-sentence custody and to partially accumulate the sentences imposed with the balance of parole period.

72. The offender is convicted.

73. For the State offence, I impose 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.

74. 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 Federal offence.

75. For the Federal offence, I impose a term of imprisonment of 9 years with a non-parole period of 5 years to date from 21 February 2022. The non-parole period will expire on 20 February 2027 and the head sentence will expire on 20 February 2031.

76. For the Federal offence it is appropriate to exercise my discretion to vary the usual ratio of time to be spent in custody taking into account the offender’s age, his prospects of rehabilitation, his physical health and the risk of institutionalisation.

77. The offender will be eligible to be released on parole on 20 February 2027.

Explanation of the Sentence Imposed

78. I am obliged to explain to the offender the effect of the orders I have made.

79. Lloyd Keen, the sentences I have imposed mean that you will be obliged to spend a minimum period in custody of 6 years. This means that, having regard to the time you have already spent in custody, you will be eligible for release on parole on 20 February 2027.

80. It will be a matter for the Federal Attorney General as to whether you will be released on that day. It may depend upon your behaviour in prison. It will also be a matter for the Attorney General to determine whether any conditions should apply to you while you are at conditional liberty upon parole after 20 February 2027. If you are released on that day, you will remain on parole for a further period of 4 years. If you were to breach your parole, you may be required to return to prison to serve the balance of the term of your sentence.

**********

Amendments

21 February 2024 - Two amendments made to [73] and the cover sheet regarding the NPP

Suppression orders lifted 21.2.24

Decision last updated: 21 February 2024