SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / R v O’Keefe; R v Jabal
Citation: / [2014] ACTSC347
Hearing Date(s): / 28 October 2014; 5 December 2014
DecisionDate: / 5 December 2014
Before: / Burns J
Decision: / See [13] – [15]
Category: / Sentence
Catchwords: / CRIMINAL LAW – Sentence – Particular offences – drug offences – co-offenders –accessory after the fact – possess a quantity of cannabis exceeding 25 grams in mass
Legislation Cited: / Criminal Code 2002 (ACT) s 717 (1)
Parties: / R (Crown: SCC 213 of 2013; SCC 214 of 2013)
Andrew James O’Keefe (Offender: SCC 213 of 2013)
Adam Jabal (Offender: SCC 214 of 2013)
Representation: / Counsel
Mr Sahu-Khan (Crown: SCC 213 of 2014; SCC 214 of 2013)
Mr Doig(Offenders: SCC 213 of 2014; SCC 214 of 2013)
Solicitors
ACT Director of Public Prosecutions(Crown: SCC 213 of 2013; SCC 214 of 2013)
Kamy Saeedi Law(Offenders: SCC 213 of 2013; SCC 214 of 2013)
File Numbers: / SCC213 of 2013; SCC 214 of 2013

Burns J:

The offences

1.Andrew O'Keefe, you have today pleaded guilty to one count on an indictment filed today alleging that between 7 July 2013 and 8 July that year you, believing someone had committed an offence of cultivation of a trafficable quantity of cannabis, assisted that person with the intention of allowing that person to escape prosecution. This offence is contrary to s 717 (1) of the Criminal Code 2002 (ACT), and carries a maximum penalty of five years' imprisonment, 500 penalty units, or both.

2.Adam Jabal, you have today pleaded guilty to one count on the same indictment, alleging that on 8 July 2013 you possessed a quantity of cannabis exceeding 25 grams in mass. The maximum penalty for that offence is twoyears' imprisonment, 50 penalty units, or both.

3.A Statement of Facts has been tendered by consent. In summary, a hydroponic system was created to grow cannabis in residential premises at 8Arrietta Close, Charnwood in the Australian Capital Territory in the first half of 2013. Those premises were owned by you, MrO'Keefe, although it appears that you were not living at the premises at that time. It is not alleged by the Crown that you were involved in the cultivation of the cannabis.

4.On 6 July 2013, police executed a controlled operation on the premises and located the hydroponic system and the growing cannabis plants. Approximately 90 plants, ranging from 50 to 70 centimetres in height, were located. Police removed the plants from their pots and placed them in an inground swimming pool on the property.

5.On 7 July 2013, you, MrO'Keefe, drove into the driveway of the property, and I am satisfied that you observed the cannabis plants in the swimming pool. You immediately drove away. The next day, at about 8.25am, you returned to the property with a truck that you had borrowed from Mr Jabal’s family. You removed the cannabis from the swimming pool with a longhandled net and placed it in the rear of the truck using a wheelbarrow.

6.You then drove to MrJabal's home, from which point, you, MrJabal, took over control of the vehicle containing the cannabis and drove towards your family's 40acre farm in Gundaroo in New South Wales. At about 1.35pm you were stopped by police, who found the cannabis plants in the rear of the truck. Neither of you gave evidence during the sentence hearing, as is your right. However, as I indicated to your counsel, this means that your actions as revealed in the Statement of Facts are unexplained, in the sense that no mitigating explanation for your actions have been put before me. I must therefore sentence you in the absence of any such explanation.

Offenders’ characteristics

Andrew James O’Keefe

7.You, MrO'Keefe, are 24 years old and you have no previous convictions. You are the second eldest of three children and you have strong supportive relationships with your immediate family members. After completing your Year 10 education, you undertook and completed an apprenticeship as an electrician. You are currently employed fulltime in that capacity. You told the author of the PreSentence Report that you do not use cannabis. You were assessed as being at low risk of general reoffending. You were also assessed as suitable for community service and periodic detention.

Adam Jabal

8.You, MrJabal, are also 24 years old and you have no previous convictions. You apparently had a stable upbringing and continue to have the support of your family. You completed your education to Year 12 level before obtaining your builder's licence at the Canberra Institute of Technology. You are apparently the joint owner of a building business which requires you to work fulltime six days a week. You told the author of the PreSentence Report that you would be able to reduce your employment to five days a week, although this would place a strain on your business. You were assessed as being at low risk of reoffending. You were also considered suitable for community service and periodic detention.

Consideration

9.Although both offenders’ pleas were only entered today, I will treat them as early pleas because of the decision of the Director of Public Prosecutions to proceed with lesser charges than those with which you were originally charged and to which you pleaded not guilty. I will therefore reduce by approximately 25 percent the penalties that I would otherwise have imposed.

10.I make it clear that I do not accept the submission made to me on 28October this year that the two of you engaged in this conduct with a view to getting rid of the cannabis by dumping it. That suggestion simply makes no sense, and I note that it was not repeated by your counsel today. The fact is that these offences involved a very significant amount of cannabis. You, MrO'Keefe, engaged in your conduct in order to assist the person who had been cultivating the cannabis to escape prosecution. The evidence does not reveal what you, MrJabal, intended to do with the cannabis, and the Crown has not alleged that you intended selling or supplying it. You were, nevertheless, found in possession of a very significant quantity of cannabis.

11.The Crown has submitted that I should impose sentences of imprisonment, although it does not press for an order that these sentences be served by immediate fulltime imprisonment. It was vaguely suggested by your counsel that non-conviction orders could be made, but in my opinion such a course is inappropriate.

12.Bearing in mind the fact that neither of you have any previous convictions, the fact that neither of you were involved in the actual cultivation of the plants and that I am satisfied that each of you have good prospects for rehabilitation, I have determined that it is not necessary to impose sentences of imprisonment to satisfy the requirements of sentencing for these offences. I will proceed by way of conviction, good behaviour orders and fines.

Sentences

Andrew James O’Keefe

13.Andrew O'Keefe, I record a conviction and you will be subject to a Good Behaviour Order for a period of 14 months from today, with the condition that you are to accept the supervision of ACT Corrections for that period of 14 months, or such lesser period as deemed appropriate by your supervising officer.You will be required to pay a fine of $7500.00 within 12 months.

Adam Jabal

14.Adam Jabal, I record a conviction and you will be subject to a Good Behaviour Order for a period of 14 months from today, with a condition that you are to accept the supervision of ACT Corrections for that period, or such lesser period as deemed appropriate by your supervising officer. In addition, you will be required to pay a fine of $2000.00 within six months.

15.I should note, of course, that the significant difference between the two fines is occasioned because there is a significant difference between the monetary penalty that is applicable to each of those offences.

I certify that the preceding fifteen[15] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.
Associate:
Date: 5 January 2015

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