Udunna v R (Cth)

HOEBEN CJ at CL:

The application for leave to appeal is out of time and the applicant seeks an extension of time within which to bring the application. The respondent does not oppose an extension of time being granted. In those circumstances, the Court proposes to grant leave to extend the time for bringing the appeal.

The applicant was sentenced after trial for aiding and abetting an offence of attempting to possess an unlawfully imported border controlled drug, namely methamphetamine contrary to s 307.5(1) of the Criminal Code (Cth) (with ss 11.1(1) and 11.1(2)). He was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years and 6 months, commencing 21 February 2018 and expiring 20 August 2024 at which time, subject to s 19AL of the Crimes Act 1914 (Cth), the applicant can be released on parole.

The applicable maximum sentence for the offence is life imprisonment, and/or a fine of $1,350,000.

The applicant was sentenced after a trial of 40 days conducted between 6 March 2018 and 14 May 2018, on which day a verdict of guilty was returned. The applicant had been tried with three other men, Prince Ibeh, Donatus Ozoani and Onyedika Anaeto. The applicant faced the same charge (with different particulars as to date) as Mr Anaeto, namely aiding and abetting the attempt on the part of Mr Ozoani to possess the imported border controlled drug. Messrs Ibeh and Ozoani were charged with offences relating to the importation itself and the subsequent attempt to possess the border controlled drug.

The sentencing judge expressly identified the facts which he found (Sentence judgment pp 2-15). The applicant does not submit that there was any error in fact finding.

The Crown relied on a bundle of material, which was marked as Exhibit A. Much of that material related only to the co-offenders. Insofar as the material related to the applicant, there was the following:

Also before the Court was a Sentence Assistance Report, dated 7 September 2018, the Crown submissions and a Comparative Sentencing Schedule.

The applicant relied on a bundle of material on sentence, which was marked Exhibit U. That material included:

No oral evidence was led on behalf of the applicant on sentence.

The applicant relied upon written and oral submissions.

The applicant relies upon the following grounds of appeal:

No complaint of disparity of sentence is made.

The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from other sentences that have been imposed in other cases.

That this Court may have exercised the sentencing discretion differently is not the test. Rather, the applicant must demonstrate that there was some misapplication of principle in his sentencing, even though where and how is not apparent from the statement of the sentencing judge’s reasons. The applicant must establish that the sentence was unreasonable or plainly unjust.

This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

This Court has been critical of applicants approaching sentence appeals by a search for and comparison with sentences passed in other cases. One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. In Vandeventer v R [2013] NSWCCA 33 at [45] Adamson J (with whom McClellan CJ at CL and Rothman J agreed) stated:

In The Queen (Cth) v Pham (2015) 256 CLR 550; [2015] HCA 39 French CJ, Keane and Nettle JJ summarised the principles in relation to comparable cases and appellate intervention at [28] as follows:

The applicant in his submissions has not identified in what way, or why, it is said that the sentence imposed is manifestly excessive. While the courts have deprecated as inappropriate improper reliance on statistics and comparisons with other cases, the concept of manifest excess still requires some evaluation of what the appropriate range is said to be. No such process has been undertaken by the applicant other than to assert that the sentence imposed is excessive in the light of the factual findings made by the sentencing judge.

What appears to be the true complaint by the applicant in relation to the sentence is that the sentencing judge gave inappropriate weight to the quantity of the drug as opposed to the independent assessment of the objective criminality based upon what was done by the applicant in his “menial” role.

The approach to the quantity of drugs taken by the sentencing judge was as follows:

There is no apparent error in the approach of the sentencing judge to the calculation of the quantity of drugs involved. In particular, the applicant was involved in obtaining the use of a property of adequate size to permit access with a fork lift to the contents of two shipping containers. The weight of drugs is always an important factor in evaluating the objective seriousness of the relevant offending. It is a factor of even more importance where the offender knew the weight involved. This is so even where weight is not the most important factor. It is not clear how and in what way it is said that the sentencing judge erred with respect to the issue of weight.

The sentencing judge found that the applicant had a lesser role than others and in particular Mr Ozoani. What his Honour did not find was that the applicant occupied a “menial” role, other than in a relative sense when compared to the other offenders. His Honour’s findings about the role of the applicant are clearly stated and are not challenged. It follows that there was no failure to find the facts relevant to the role of the applicant and no failure to have regard to those findings in light of the quantity of the drugs involved.

It needs to be understood that the primary obligation when sentencing for an offence against the Criminal Code (Cth) is to impose a sentence “… that is of a severity appropriate in all the circumstances of the offence” (s 16A(1) Crimes Act 1914 (Cth)). While s 16A(2) creates a list of matters that must be taken into account, none of those matters detract from that primary obligation. With any offence of this kind, there must be an expectation of a sentence which recognises the seriousness of the type of offending and in particular, the amount of drug involved and its value to the importer and persons seeking to gain possession of it.

When one has regard to only the ground of appeal actually articulated, i.e. manifest excess, the following considerations are relevant:

It follows that the sentencing judge had a solid basis on which to sentence the applicant as he did. This ground of appeal should be dismissed.

The applicant’s criminal record was relatively minor and it was not contended in the sentencing hearing that those offences were of any relevance.

The applicant dealt with good character in a very limited fashion in written submissions where the following was said:

In those paragraphs, the applicant’s apparent complaint is that because he did not use his good character to make himself a more attractive proposition to his co-offenders, there was no basis for the sentencing judge to give less weight to his “good character”.

The problem with that submission is that nothing was put to the sentencing judge in those paragraphs as to how his good character was to be deployed in reducing his sentence. All that is covered in the written submissions was his strong work ethic and his community involvement.

In contrast, the Crown submission was:

Moreover, there is always a difficulty for an applicant where a ground of appeal is expressed in terms of an attack on the weight to be given to a particular factor. The criticism in this ground of appeal is that his Honour did not “properly” take good character into account. Implicit in such a challenge is an acknowledge that the court did take a relevant factor into account.

In any event, the sentencing judge did expressly take into account the good character of the applicant by way of mitigation. His Honour said:

Once it is accepted that effect was given to the applicant’s prior good character by way of mitigation, the only issue becomes the extent to which an allowance should be made. That being so, it is trite to observe that the weight to be given to a factor on sentence is a matter for the sentencing judge. An appellate court will be hesitant to interfere with a question of the weight to be given to a particular factor (Stines v R [2019] NSWCCA 115 at [22]-[25] per Leeming JA).

Finally, the following statements of principle in the cases concerning good character do not support the applicant’s submission:

It follows from the above that this ground of appeal has not been made out and should be dismissed.

Accordingly, the orders which I propose are:

HARRISON J: I agree with Hoeben CJ at CL.

IERACE J: I also agree with Hoeben CJ at CL.