R v Keelan [2022] NSWDC 387 | Case summary

THE OFFENDER

The offender has, on the face of things, an extraordinarily long record extending to 44 pages. However, I have gone through it quite carefully and noted that most of his criminal history is for low level crime, in most instances what is likely to have been opportunistic crime.
He was born in 1966 and this year will reach his 56th birthday. According to the antecedent report he was first in court in 1987 after being charged in 1986. So, his criminal history begins at the age of 20 or thereabouts.
Although there are a great number of entries, some of them did not result in any sanction and as I said many were of limited significance, mostly dealt with in Local Courts. His first appearance was in respect of offences of resisting arrest and assaulting police and having goods in custody. He was given the benefit of a recognizance pursuant to s 556A Crimes Act 1900, as it was at the time. The provision was subsequently replaced by s 10 Crimes (Sentencing Procedure) Act 1999; in other words the Court found the offence proved without proceeding to conviction and released him upon entering into the recognizance for each of the offences, five in number.
Thereafter he was in court for breaking, entering and stealing, for driving with a high range concentration of alcohol, for malicious damage, for being a disqualified driver, street offences, further offences of assault and resisting police. All of these resulted in conditional liberty or fines. There were multiples of the drive whilst disqualified and high range PCA offences. It was not until 1989 that he was committed to the District Court on whatever basis for two counts of robbery with wounding which led to imprisonment for five years with an additional term of 20 months. This was reduced by the Court of Criminal Appeal on an application for leave to appeal.
His record is replete with determinations at first instance with appeals that followed, sometimes successfully, sometimes unsuccessfully, to the Court at the next level.
He has been before the Court for breach of parole and suffered imprisonment for that. For illegally using a conveyance, he suffered imprisonment. There followed a mid-range PCA and driving whilst disqualified, another high range PCA, further revocation of parole. An assault charge was dismissed. A charge of possessing house breaking implements and entering building with intent to commit an offence, were both dismissed. Common assault and contravening apprehended violence order were both dismissed.
Thereafter he was before the Court for breaking and entering a building and committing a felony, probably stealing I expect, failing to comply with a Community Service Order, shoplifting. There are multiples of low level larceny offences, multiple offences of driving whilst cancelled, driving whilst disqualified, common assault, entering enclosed lands, break and enter with intent, although I note that was replaced with another offence for which he was prosecuted.
So his record continues with the addition of contravening an apprehended domestic violence order at that level until his ultimate prosecution for the offence before the Court today.
As I said, at first blush his record is poor, but it should not be simply dismissed upon that basis without an understanding of the nature of the misconduct upon which he has engaged throughout his life to the present time, which has relevance to the assessment of the opinion given by a psychologist who provided a report.
Before I come to that though, I note that there is a sentence assessment report that is not favourable and in some respects a little confused. This informs me that he had been struggling financially and alone. His partner had recently gone into custody for other matters; that is consistent with what he wrote to me in the letter. He was unemployed at the time of the offence and was most recently in employment in 2021 in a factory. The history of antecedent behaviour is summarised briefly. Beneath a section "Attitudes" the following appears in three dot points: "Mr Keelan reported his offending of an opportunistic nature and stated he was unaware the parcel contained illicit drugs. He advised that he had no prior knowledge of the package and believes that he had been set up by the police. During interviews with Mr Keelan he described feeling relief when he was arrested."
Clearly there are internal inconsistencies in that part of the report upon the representations made by the offender, as recorded by the author of the document. Of note is that he advances the offending as an opportunistic event, which I would accept upon my assessment of the matter. I do not accept that he could assert that he was unaware that the parcel contained illicit drugs. Bearing in mind he has pleaded guilty to the charge upon the basis of the fault element, recklessness, it would follow that he must have at least adverted to the risk that the parcel contained drugs and went ahead in the enterprise anyway; indeed one would have no difficulty, I expect, coming to the conclusion that the objective circumstances were such that he at least knew of the risk that what he was asked to collect contained drugs. There is nothing to found the proposition that he would have been set up by the police in this event; nor is it appropriate to find that he had no prior knowledge of the package.
There is reference to his substance use. In the section beneath the heading "Responsivity", it is said that he lacked insight into his offending and was not able to articulate why he committed the offence. He failed to understand how drugs could impact on the community and denied any involvement in the distribution of narcotics. The second limb of that I would not consider adverse to the offender. The first though, asserting that he did not understand how drugs could impact on the community, I could not accept in light of the history that I am going to come to from the psychologist's report.
The report at this point continues, "He failed to elaborate on his offending behaviour, giving little insight into the events and believed the police had set him up." Once again there is no basis for a finding in those terms. He is willing to undertake intervention, willing to undertake community service work; his supervision in the past has been completed successfully. He is assessed at a medium risk of re-offending.
The psychologist saw him over one and a half hours interviewing and assessing using a structured clinical interview for DSM-V (SCID-5). It is not entirely clear whether the one and a half hours was the clinical assessment with further time spent for the psychometric assessment. It would seem to me extraordinary that one and a half hours would be sufficient to harvest all of the information represented in this report and find a basis upon which to reliably advance the opinion off it. This said, the document has been tendered, it is by consent, there is no challenge to the opinions offered by the psychologist who is not required to be tested in cross-examination.
Thus I proceed on the basis that the representation should be attributed appropriate weight bearing in mind the circumspection urged by authority, including R v Qutami [2001] NSWCCA 353 and more recently by Wilson J in Imbornone v R [2017] NSWCCA 144. The caution or circumspection is urged in circumstances where an offender does not give sworn evidence or face cross-examination to test the veracity of the assertions upon which he might rely.
Having brought that to bear I am willing to accept the history that has been attributed to him in this report. When I compare the accumulation of offences on his antecedent record, it would seem to me that what is there found resonates with his life circumstances leading up to his present predicament. It is, I accept, a case where he has had significant challenges through his formative years because of lack of affection and proper nurturing throughout the period when he was growing to adulthood. He is attributed with the statement that his upbringing was difficult and traumatic. His mother lacked motivation, she neglected him and his siblings. She would spend days in her bedroom and he would go for days without food. There is no explanation for his mother's difficulties; it might well be and it would appear at least possible that she had her own challenges with mental health. He said he was fearful of her and he would often run to his grandparents home to get away from her.
His education ended in year 9. He was a poor student. He lacked the ability to concentrate and found it hard to conform. He worked in a supermarket in retail for about six months. He began to associate with antisocial members of the community in his late teenage years. They would carry out petty crimes and consume drugs. He embarked upon the use of cannabis, speed and alcohol and ultimately began using heroin intravenously. He acknowledged he spent his life with reckless abandonment, carrying out crimes to help him afford drugs. He locked himself into what was said to be a vicious cycle of crime, drug use and incarceration. He suffered physical altercations on the streets because of drug debt, money, and addiction. He suffered significant assaults in his lifetime and was hospitalised about 13 years ago after an unprovoked attack with injuries to his face and body. About ten years ago three men assaulted him and he said he was hung off a tree and left to die.
He has been incarcerated for about 15 years of his life. This began at the age of 22. He said that he has witnessed inmates having their throat slashed and he witnessed several stabbings in gaol. I have no further material to quantify or explain that history. I do not have his custodial record so I cannot make a definitive assessment of the time he spent in custody but at 56 years of age, 15 years is a significant part of his adult life. It is that period of incarceration that led to the opinion given by the psychologist in this report that he suffers from institutionalisation.
His last release from gaol was about three years ago. He stopped using heroin. He was prescribed Suboxone for his opioid addiction and he is currently receiving regular treatment for his heroin addiction. Work he obtained in the community included as a forklift driver and a process worker. He lost employment because of the Covid-19 pandemic and that caused him to regress financially and emotionally.
One could take note of persons at his socioeconomic level being at significant risk because of the result of this pandemic with many losing their employment, and businesses unable to continue.
He was diagnosed with a dual diagnosis of complex post-traumatic stress disorder and substance use dependence and a depressive disorder. The report continues in general terms with what all that means and then provides a summary of the current symptomatology. The complex post-traumatic stress disorder is said to have affected him most of his life and the substance dependence for about 35 years. Because of the trauma that he has witnessed or experienced, he has recurring intrusive thoughts, lucid dreams, flashbacks, poor sleep. He experiences intense distress, a significantly high heart rate and rapid breathing when he recalls incidents to which he was exposed and he has hyper vigilance. His mood is poor, partly the product of institutionalisation. He developed a maladaptive pattern of substance use over the years. He has significant feelings of worthlessness and poor self-esteem; at para [18] it is said that he described a significant detailed destructive pattern of substance dependence and exhibited significant psychiatric and psychological impairments that have significantly affected his capacity to exercise sound judgement with his decision making behaviour over his lifetime.
This is a significant conclusion, of substantial impairment, which apparently was reached in a very limited opportunity to assess the offender.
I would not come to a finding that he was burdened to the extent that that passage represents, though I would accept that his substance use, extending to dependence particularly with heroin, must have involved a destructive pattern.
Regarding "significant" psychiatric and psychological impairment, there is not sufficient material before me to make a definitive finding as to that, though it must be that he suffered at least psychological impairment to some extent. Whether it extended to "significantly" affect his capacity to make sound judgement with his decision making behaviour, is a matter upon which it is difficult to make a finding in the material before me.
That said, it is clear from the nature of the offending upon which he has historically engaged, that most of his misconduct has been opportunistic without adequate regard, I expect, for the consequences, reflected in the fact that he repeated so many of those offences in his past, often leading to his apprehension and prosecution.
It is said there is a direct and significant correlation between his offending behaviour and his ongoing and chronic psychiatric and psychological condition. It is difficult to make a finding precisely in those terms, but I accept that his challenges, such as they are, led to the poor decision that he made on this occasion, bearing in mind that he was, according to his perception at least, in some economic peril. He was given the offer to make $1,000 to pick up this parcel, which on any view must have involved illicit product, only to be thwarted with the interdiction by the police officers.
He admitted that it was undeniably wrong to have committed the offence. He was appalled by his actions and he gave expressions of regret and remorse and acknowledged that his behaviour was reckless and impulsive. This is contained at para [26], and I accept that. At para [28] he commented that the behaviour would have significantly impacted upon people around him in the wider community. One would have thought that in light of his life experiences and his own drug use, he would have had an appreciation of that before he committed the crime. He said that he has witnessed firsthand the extent of the damage drugs can do to people who are vulnerable, having observed other inmates burdened by what he has experienced in his life outside of gaol. It is said that his emotional disturbance was so considerably heightened that his ability to appreciate the consequences of his actions at the time were diminished. I have difficulty accepting that. Those representations are found at para [28].
He was attributed with recitations and comments and attitude reflecting someone aware of the behaviours, having taken responsibility for actions, and wanting to make significant changes. He is said to now understand the connection between his traumatic experiences in life and his illicit drug use and the offending behaviour, giving him now some insight into the link between them. He has strengths that will be of assistance to him should he be granted a non‑custodial sentence. Clearly that is an impossibility; he has to suffer a custodial sentence in light of his misconduct.
Thus I find we have before the Court a man in the stage of life just past middle age with an appalling history of criminal misconduct in the past, albeit in respect of low level offences but for one that led to a substantial period of gaol. He had difficulty in his formative years and as was noted by Justice Simpson in her judgement in R v Millwood [2012] NSWCCA 2, "An offender who has the start in life", that this offender has, cannot bear equal moral responsibility with someone who has experienced what is normal or advantaged circumstances in their upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his behavioural decisions."
Her Honour made clear that she was not speaking of people having no moral responsibility, but the impact of a dysfunctional childhood and challenging times through formative years must be brought to account when assessing the moral culpability in the misconduct upon which the offender engaged.

CONSIDERATION

Being a Federal offence, I am obliged to bring to account those considerations mandated in s 16A Crimes Act 1914. Both parties have helpfully provided accurate written submissions reminding me of the considerations that must be brought to bear. The Crown submits correctly, in my view, that there must be a full term of imprisonment with a non-parole period by force of s 19AB of the Act. A non-parole period is imposed if the sentence or aggregate sentence exceeds three years. If it is a period less than three years a recognizance release order is the proper course to take. The assessment of this matter has led me to the view that the sentence should be a little more than three years, in which case there will be a non‑parole period imposed.
The Crown reminded me of the sentencing principles relevant to the possession of border controlled drug offences. The authority to which I was taken is R v Nguyen and R v Pham (2010) 205 A Crim R 106. The relevant considerations are that the criminality must be assessed with regard to the involvement of the offender and the steps taken by him. There are difficulties in categorising where an offender might be placed in the hierarchy bearing in mind that the Court has only limited information as to the structure of the organisation in which he was participating, but I agree with what was said on his behalf that he is on the low end of the hierarchy in this case. He was, I find, a person who was used by the principal or principals to recover the illicitly imported substance to prevent them from being exposed to interdiction and arrest. It is often the case that people such as the offender are used in this way to take the fall when things go awry. That said, of course by engaging as he did he facilitated the principal in the organisation who has, as far as I know, not been called to account for their role in this crime.
The criminality must be identified and in this case, as I have said, he is, as is conceded by the Crown, a low level participant, perhaps a courier, doing the pickup and later the drop off all for a reward of no more than $1,000. The weight of the drug is not the principal factor but it is a matter to be brought to account and I have done so. It can be highly relevant and it is not an insubstantial amount of heroin in this case, well in excess of the quantity specified for the level relevant to the prosecution of the marketable quantity. There was profit at the end of the road for him but of modest proportion overall, clearly well below what the drug would have realised ultimately at the point of consumption.
Deterrence must be given appropriate weight and general deterrence of course carries appropriate weight in such a case. People should be discouraged from falling to the temptation even for modest returns of helping out organised criminals, the organised criminals that embark upon these enterprises. In this case specific deterrence has its role because of the tendency demonstrated by the offender to opportunistically engage upon criminal activity. There must be punishment so that it will be appreciated that the low level reward is not worth the risk committing these crimes.
Prior good character is not a matter for consideration in this case. I should pause to note that his antecedent record does not increase the objective gravity of the offending or the proportionate sentence that would otherwise be applied, depending upon the synthesis of factors to be brought to account, but it does obviate the benefit that might have otherwise been derived for the offender were he a person of good character without any antecedent criminal record; it also is relevant, as I have noted, to the assessment of specific deterrence.
I have had regard to the nature and circumstances of the offence, bearing in mind the plea of guilty to the elements, and the content of the letter that was ultimately provided. I have noted the maximum penalty. I have noted the need to make sure that there is adequate punishment. I have brought to account the guilty plea both in terms of expression of contrition and remorse and for utility. I have brought to account specific and general deterrence as I have noted. I have had regard to his age and there is nothing before me regarding his physical health. All that is before me is with regard to his challenges through his formative years and what the psychologist has opined upon the history given to him. I have had regard to his antecedents and his background revealed in the document.
Prospects for rehabilitation, I would have to come to the view they are poor, although the structure of the sentence I am about to employ, I hope, will to some extent facilitate whatever prospects of rehabilitation he might be able to demonstrate until the point of his release to parole. Of course if he fails to rise to the occasion, the accommodation will be awaiting him at the instance of the parole authorities.
The Crown has reminded me of what I have already noted with regard to Imbornone, Ibid and Qutami Ibid. The Crown points to the contradictory statements by the offender to which I have already referred and I have already commented upon the limited weight that I can place upon at least some of the opinions offered by a psychologist, Mr Albassit, for the reasons I have earlier expressed, bearing in mind the brevity of the interview, albeit 90 minutes but in my view without adequate opportunity to make a proper and thorough analysis upon which to come to the conclusions offered.
The Crown has helpfully provided me with some cases from jurisdictions across the Commonwealth.
There is Lopez Duque v The Queen [2019] VSCA 212. This was an attempt to possess a marketable quantity of cocaine of a pure weight of 403 grams. There was far more extensive conduct in the role discussed in the table. The applicant engaged in a pursuit with police after they attempted to detain him. He was sentenced to six years with a non-parole period of four years. That is, in my assessment, a far more serious case than that with which I am concerned, bearing in mind the very comparatively limited role of this offender.
In Ojielumhen v R [2014] ACTCA 28, an offence of attempting to possess a marketable quantity of cocaine, 196.3 grams pure, the applicant collected a parcel from Thailand. He and his girlfriend attended a house and discussed their intention to sell at a good price. The role that he performed was to collect the parcel from the post office and provide it to another party and was to receive $1,500 for the task. That is nearer to, but in my view more serious than the matter with which I am concerned. On appeal the sentence was reduced to five years with a non-parole period of two years and six months.
In R v Ajelara [2015] QCA 56, an attempt to possess 108.5 grams of pure methamphetamine, the offender was engaged upon the use of multiple mobile phones to track the parcel containing the drugs. This investigation followed an interception by customs and a controlled delivery. Contact was made by telephone on two separate occasions regarding the parcel and the offender used, as I said, multiple mobile phones to track the parcel. Another controlled delivery was conducted. This offender identified himself under a false name. When asked to produce identification he produced his actual name and correct address on the document. He took possession and was arrested shortly after. Again this is marginally more serious than the offence with which I am concerned. This offender suffered five years with a non-parole period of two years and six months.
I have not referred to the subjective cases that were presented, I should do so. In the case of Duque, the offender came to Australia from Colombia without a criminal history, with good prospects of rehabilitation, general remorse, facing deportation upon release and was found to be the Australian organiser of the importation and greater level of involvement than that of his co-offender who he had recruited.
In the case of Ojielumhen, the offender was 36, well educated, no prior convictions, with a stable upbringing, education and employment history with good prospects of rehabilitation. There was assistance given in that case.
In Ajelara he was 38 years of age, had a tragic upbringing in Nigeria. His role was limited. His wife had two young children. There was hardship arising from the imprisonment but it could not have overborne in the considerations such as the need for general deterrence, denunciation and punishment
In Omorogbe v R [2013] NSWCCA 201 the offence was attempting to possess 106.4 grams of cocaine. The offender leased a private mailbox in a news-agency in a false name using a false drivers licence. He attended the news-agency and attempted to take possession of the package. He possessed a key to the mailbox. When arrested he claimed that he was collecting the passage on behalf of the consignee, denied being paid anything for doing so. His role was that of a collector and the Court could not conclude that he was doing any more than engaging upon that conduct for persons unknown for which he would later receive payment. He was a 57 year old Nigerian national, in Australia unlawfully, in debt. He would have difficulty in gaol because of his isolation from family. No prior convictions, no history of drug use or addiction. Found unlikely to re-offend. His sentence on appeal was four years with a non-parole period of two years and six months.
On behalf of the offender, it is urged that I should see his role as being so low on the structure that the time he spent in gaol is sufficient to meet the custodial component of the sentence. According the Crown Sentence Summary, that is a period of one year, three months and 19 days. I do not agree with that submission. The offender will have to spend a little longer in custody before he is eligible for parole.
What is written on his behalf and to which counsel spoke is largely consistent with what the Crown advanced. The quantity of the drug is substantial and is recognised. It is said though that the quantity of the drug is not determinative and that is clear from the authorities, but it is a significant factor to be considered together with the actual role the offender is found to have been performing. Relevant principles are brought to my attention in this document. Objective seriousness is said to be low for the reasons advanced and I am asked to consider that his knowledge of the offence did not extend beyond a number of days. He had no knowledge of the actual weight or at least the evidence does not allow a finding that he had knowledge of the actual weight.
There is no evidence that he had any involvement in the importation. No evidence that he was an investor, no evidence that he provided any finance, no evidence that he participated in organising the shipment, no evidence that he was involved in potential future sales or to be involved in potential future sales. He did engage for financial benefit which is acknowledged to be in aggravation of the misconduct but it is not a case where he sought to enrich himself. His purpose was to simply provide a means of sustenance and I would agree that on the material I have, that is the appropriate finding.
He was trusted, clearly, as a participant but there is no suggestion he had any decision making role, I accept that. He faced the greatest risk because he was the person on the street at the time. That is so but that is all part of the risk that he took in the commission of this crime. He lacked sophistication, it is said. I do not know that I would come to a view that he lacked sophistication in the planning and organisation of his role. His planning and organisation must be assessed against the enterprise which was the importation using a mail system of drugs into this country from Africa through a device whereby the offender was the person given the task of doing the pickup and later the drop off for, again as I have said, modest reward.
I accept his plea of guilty as a demonstration of contrition. I do not accept there is a limited need for specific deterrence. I have had regard, as I have said, to his character, antecedents, age and his means and his state of mental health to the extent that I can glean it from the report by the psychologist. Prospects for rehabilitation are guarded. There will be an effect on his partner, I would expect, although I am not entirely clear what her present status is and whether she is still in gaol or has since been released. One way or another it is now the law that one brings to account, as part of the sentencing matrix, the impact upon family.
And I should add that while I was waiting to come down to court, I was informed by the court officer that the offender's son was present in the court complex and wanted to know whether he could come in to observe the proceedings. I take it that he is here in support of his father and I bring to account that this misconduct and the consequence of it will impact upon his family. I have been a judge for many years now and before then a prosecutor and before then counsel for many, many years. I have seen the impact upon families of the punishment that people earn through their criminal misconduct and it has never been lost on me that one should assess the significance of punishment, not only with regard to the offender but with regard to those who are close to him and who must carry the burden of waiting for their release.
Whilst bringing to account all of that material, I come to the view that the sentence of imprisonment that I should impose in this case will be less than those that were identified in the cases to which I was taken for the reasons I have given. I see this as being less serious and I see this as involving a lower level of moral culpability bearing in mind the lost opportunities and challenges that the offender has suffered through his formative years, through to his adulthood, and his ongoing use of drugs in the pursuit of which he has engaged upon petty crime throughout his life. I have had regard to the fact that he spent a significant part of his adult life in gaol, although I have not been in a position to quantify the precise term or to compare what the custodial record might reveal against the information given to the psychologist, but even if it is ten years, it is still a substantial period of time from one's life to spend in gaol for various periods as reflected in the record.

R v Keelan

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Cases Cited (7)

Cited By (1)