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

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

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

I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular 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 Keen

Details

AGLC: R v Keen [2022] NSWDC 369
Case: [2022] NSWDC 369
Decision Date: 19 August 2022

CaseChat Overview and Summary

The case of R v Keen involved a conviction of the defendant for both state and federal drug offences. The nature of the dispute centred around the defendant's involvement in the supply of a prohibited drug and whether the court should impose a custodial sentence for the crimes committed. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were the objective seriousness of the offences, the necessity for deterrence, and the appropriate sentence considering both aggravating and mitigating factors. The court was also required to consider the defendant's prospects for rehabilitation, the expression of remorse, and the plea of guilty in determining the appropriate penalty.

The court found that the offences were serious, with a need for deterrence given the prevalence of drug-related crime. However, the defendant's good prospects for rehabilitation, expression of remorse, and the plea of guilty were recognised as mitigating factors. After weighing these considerations, the court determined that the defendant should be sentenced to a term of imprisonment. For the state offence, the court imposed a sentence of 5 years with a non-parole period of 3 years and 9 months. For the federal offence, a sentence of 9 years was imposed, with a non-parole period of 5 years.

The final orders of the court included the conviction of the defendant, the imposition of the respective sentences, and the eligibility for parole release after the non-parole period had elapsed.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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