Inegbedion v R

1. [1]

   PAYNE JA: On 3 April 2025, Meredith Inegbedion, the applicant, was sentenced in the District Court at Sydney after pleading guilty to one count of aiding and abetting a co-offender, who I will describe as "Mr AA". The applicant pleaded guilty to attempting to possess a marketable quantity of a border controlled drug. The applicant was sentenced to a period of 4 years and 9 months imprisonment. A non-parole period of 2 years and 7 months was fixed. The applicant will be eligible for release on parole on 7 January 2026 and his sentence will expire on 7 March 2028. The maximum sentence for the offence to which the applicant pleaded guilty is 25 years’ imprisonment.

The notice of appeal

1. [2]

   On 12 September 2025, the applicant filed a notice of appeal containing two grounds:

2. [3]

   The Crown conceded that the asserted error in each ground of appeal was made out and that the provisions of s 6(3) of the Criminal Appeal Act 1912 (NSW) were enlivened such that the applicant must be re-sentenced. However, the Crown submitted that no lesser sentence is warranted and the appeal should be dismissed.

Findings of fact

1. [4]

   In what follows I have had regard to and adopt the same findings of fact as the sentencing judge save where those findings are challenged. In those cases, I have made my own findings.

2. [5]

   In October 2021, an air cargo consignment from Kampal, Uganda, was intercepted by Australian Border Force. The consignment included 5 packets of shower curtains each containing A4 cardboard. The cardboard was found to contain methylamphetamine with a pure weight of 416.9g. The consignment was declared to contain clothes and was addressed to Brendan Whitney at an address in Glebe. The drugs were seized by Australian Border Force and a replica was packaged for delivery. A form was sent to the Glebe address indicating the package was ready for pick-up at the Broadway Australia Post store.

3. [6]

   On 26 October 2021, Mr AA attended the Broadway Post store and handed staff an authority to collect form. Staff contacted the NSW police who attended. Mr AA saw the police outside and left without the package. He was arrested and his phone was seized. Whilst the police were speaking to Mr AA, his phone rang several times and displayed missed calls from ‘Dave’. The phone was examined and found to contain texts and pictures related to the consignment including:

   1. (1)

      A text from ‘Dave’ with the consignee name, tracking number and origin of the consignment;

   2. (2)

      A text from an unknown user with words informally translated from Russian as “Australia Post” and noting the date (26 Oct 2021) and “Awaiting collection at BROADWAY POST SHOP”;

   3. (3)

      A picture from ‘Dave’ being a photograph of the EMS consignment note. The phone number for the contact ‘Dave’ was subscribed to the applicant.

4. [7]

   On 29 March 2022, the applicant’s residence was searched pursuant to a search warrant and items were seized. Later that day the applicant was arrested. In his possession was a phone with the number which had been listed in Mr AA’s phone as the contact ‘Dave’.

5. [8]

   Sometime in 2019, Mr AA met Alexandru Coptil, who he knew as ‘Alex’. Mr Coptil told him he knew African people who imported drugs and that they could meet these persons and “go three ways” in the profit. Mr Coptil told Mr AA that his role was to find houses for the delivery of the drugs and collect the imported drugs and that another person would divide the drugs between the three of them. In March 2021, Mr Coptil introduced Mr AA to the applicant. Mr AA was told the applicant’s name but did not pick it up and so just called him ‘Dave’. As they separated the applicant gave Mr AA a piece of paper with his phone number and Mr AA saved the number in his phone as ‘Dave’.

6. [9]

   Soon after that first meeting, the applicant and Mr AA met and discussed arrangements between them. The applicant’s role was to track the consignment and provide Mr AA with the tracking number. The applicant kept Mr AA updated on the status of the consignment's arrival (whether it arrived or delivery had failed) and the details of the consignment for Mr AA to get possession of it.

7. [10]

   It was intended that Mr AA would sell the border controlled drug for money and would provide the applicant with a certain amount of money as payment for the applicant’s assistance.

8. [11]

   In September 2021, the applicant and Mr AA met at a park and discussed the consignment. Mr AA provided the applicant with the Glebe address. After that meeting the applicant and Mr AA spoke regularly regarding the consignment. In addition, Mr AA left multiple voicemail messages between 2 September 2021 and 8 October 2021 asking the applicant to call him back.

9. [12]

   On 2 October 2021, the applicant called Mr AA to advise that the consignment would arrive at the Glebe address around 24 or 25 October 2021. Between 18 October 2021 and 26 October 2021, Mr AA left multiple voicemail messages for the applicant. Between 21 October 2021 and 25 October 2021, the applicant and Mr AA communicated by call or text frequently. On 24 and 25 October 2021, Mr AA waited at the Glebe address for the consignment but nothing arrived. On 26 October Mr AA left two messages for the applicant asking him to call him back. That afternoon the applicant called Mr AA and advised that the consignment was expected to be delivered to Broadway Post Office. An hour later Mr AA called the applicant requesting the EMS tracking number and name of the person who sent it. The applicant confirmed he would send those details and shortly after sent the messages referred to above.

10. [13]

    At 4.50pm Mr AA attended Broadway post office and was arrested. Between 12.52pm and 10.07pm that day the applicant’s phone made 23 calls to Mr AA’s phone.

11. [14]

    On 29 March 2022, a search warrant was executed at the applicant’s residence and documents and business cards were seized. Later that day the applicant was arrested and his phone seized. He identified the phone number as his and said his mobile phone was in his sole possession at all times. The applicant’s phone was examined and Mr AA’s number found saved as a contact ‘Alex Friend’. The phone number associated with the consignee Brendan Whitney was saved as ‘Joey’. Text messages and voicemail exchanges between the applicant and Mr AA between 1 September 2021 and 26 October 2021 were also located.

12. [15]

    The applicant agreed to a recorded interview in which he confirmed his mobile phone number. The applicant denied knowing Mr AA and denied having his number in his phone. The applicant did not recall who had called from Mr AA’s number or sent the text messages exchanged on 26 October 2021. The applicant admitted knowing a person named ‘Sam’ who he had messaged. The applicant denied knowledge of anyone living at the Glebe address. When asked about Mr AA’s phone number the applicant said that “someone else must have sent this”. The applicant said he did not know the number of Mr AA and could not explain how his phone could have messaged that number. The applicant denied any involvement in the consignment.

Consideration

1. [16]

   As noted at the outset the Crown concedes that error has been established on both grounds. Once specific error in the sentencing exercise has been established, it is the duty of the Court to exercise the sentencing discretion afresh, exercising its independent discretion in order to determine whether the sentence is appropriate for the offender and the offence: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

2. [17]

   On that exercise the Court must take account any evidence of relevant events which have occurred since the sentence hearing, but if the Court concludes either that the same sentence or a greater sentence should be imposed, it is not required to resentence (see Kentwell at [43]). It is conceded by the Crown here that the sentencing discretion miscarried and this Court is required to resentence the applicant. No additional evidence was relied upon by either party on resentence.

3. [18]

   The offender is to be sentenced for offences against Commonwealth law and the Court is required to apply the terms of Part IB of the Crimes Act 1914 (Cth). The guiding principle under s 16A(1) of the Crimes Act is the imposition of a sentence which is of a severity appropriate in all the circumstances of the offence. The Court must consider the matters identified in s 16A(2) of the Crimes Act, to the extent that they are relevant.

4. [19]

   I turn now to the list of factors I must take into account under s 16A(2) of the Crimes Act. I will not address those factors that the parties agreed did not apply here.

5. [20]

   I find that the applicant’s role was to track the consignment and provide Mr AA with the tracking number. The applicant kept Mr AA informed of the status of the consignment’s arrival and provided details of the consignment for Mr AA to take possession.

6. [21]

   The applicant’s role was relatively limited, but like the sentencing judge I find that he was a necessary participant in the offending and he was trusted with information necessary to the success of the criminal endeavour.

7. [22]

   The sentencing judge did not make an express finding regarding the objective seriousness of the offending, although her Honour found that there was some degree of planning and organisation on the applicant’s part, albeit not sophisticated or elaborate (noting for example, that the applicant used his own phone in the offending). Neither party urged the Court to make an express finding about objective seriousness on re-sentence and I will refrain from doing so.

8. [23]

   The amount of pure methylamphetamine involved in the offending was 416.9 grams (gross weight 538 grams, purity 77.5%). This is over 200 times the marketable quantity. The sentencing judge found that there was no evidence that the applicant knew the weight of the drug involved and I make the same finding.

9. [24]

   I find that the applicant was motivated by financial reward. Unlike Mr AA, there was no intention that the applicant would share in the profits of the eventual sale of the drugs; rather, Mr AA would pay the applicant for his assistance. There was no evidence as to the amount of money the applicant was to receive. I find that the applicant participated in the offending for financial reward. By virtue of his plea, the applicant admitted that he knew all the relevant facts and circumstances relating to the elements of the offence, including that he knew the consignment contained a border controlled drug.

10. [25]

    I find that the applicant committed the offence in the expectation and with the knowledge that his co-offender, Mr AA intended to take possession of a border controlled drug. Like the sentencing judge, I conclude that the applicant’s moral culpability for the offence was reasonably high.

11. [26]

    The applicant did not give evidence on sentence, but relied upon a letter of apology. I have taken that letter of apology into account. There was no evidence led by either party directed to the question of resentence.

12. [27]

    An important feature of this case is that the applicant had on his record a conviction for a very similar offence from April 2010, namely the attempted possession of a marketable quantity of heroin (pure weight 355.6 grams). The circumstances are remarkably similar to the present offending, involving the attempted possession of an international consignment in which the drug had been concealed. In April 2012, his Honour Acting Judge Puckeridge imposed a term of imprisonment of 6 years and 4 months, with a non-parole period of 4 years and 4 months for that offending.

13. [28]

    In light of all the circumstances of the case, including the earlier conviction, I do not accept the essential conclusion in the evidence of the psychiatrist called by the applicant, Mr Wong, that the applicant should be characterised as “naïve and gullible” and “taken advantage of” in relation to the offending. I note that, in any event, Mr Wong ultimately opined that the applicant had a moderate risk of re-offending. I agree with that conclusion. The applicant’s willingness to engage in the offending despite his prior conviction and sentence meant that he was a moderate risk of reoffending.

14. [29]

    I find on the basis of the contents of the letter of apology that the applicant has demonstrated little insight into his offending, and that he continues to blame others for his offending and to minimise his own responsibility for his actions. The letter of apology blames problems in his relationship with a girlfriend as “fuelling his behaviour”. The applicant blames his associate Mr Coptil for introducing him to Mr AA and blamed them both, Mr Coptil and Mr AA, for the applicant’s participation in the offending.

15. [30]

    Like the sentencing judge, I find that the applicant still has progress to make in taking full responsibility for his offending, but accept that he says that he was sorry and has learned a “great lesson in life”.

16. [31]

    I allow a discount of 10% for the applicant’s plea of guilty.

17. [32]

    General deterrence is a fundamental consideration in the present sentencing exercise. The attempted importation of marketable quantities of prohibited narcotics is a serious offence. A sentence must be imposed for offending of this kind such as to deter others who may consider committing such a crime.

18. [33]

    In relation to the deterrent effect on the offender, like the sentencing judge I am concerned about the strikingly similar earlier offending and the fact that the applicant, even now, has demonstrated little insight into his offending. The applicant continues to blame others for his offending and to minimise responsibility for his actions. I find that specific deterrence has an important role to play in fixing an appropriate sentence.

19. [34]

    Section 17A of the Crimes Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless the court, after having considered all other available sentences, is satisfied no other sentence is appropriate in all the circumstances of the case. Sentences for offences of this kind should have both a deterrent and punitive effect.

20. [35]

    I have concluded that a sentence of full-time imprisonment is the only appropriate sentence to impose in this case. Mr Terracini who appeared for the applicant on the appeal accepted as much. Given the gravity of the offending, a significant sentence of full-time imprisonment must be imposed.

21. [36]

    The applicant was 49 years old at the time of the offence and is now 53.

22. [37]

    As detailed in the sentencing assessment report, the applicant was in stable accommodation and had support from family. It noted that the applicant had a 14 year old son. The applicant was employed in a casual position but was working full-time hours.

23. [38]

    The applicant did not give evidence at the sentencing hearing and relied upon the letter of apology. In that letter the applicant said he believed trauma he was “nursing” contributed to the offending in that he was “not thinking properly and that fuelled my behaviour”.

24. [39]

    The applicant’s personal history was primarily found in the report of Mr Wong, clinical psychologist and supplemented by his letter to the court and two references from a friend and an employer. The applicant had been born in Zimbabwe and was the oldest of 5 to his parents’ marriage. He described his family as middle class and recalled that his basic needs were always met. His father was a farmer and his mother worked in “petty trading”. He described them as having a prosocial and close relationship.

25. [40]

    He had maintained a good relationship with both parents until his father suddenly died as a result of a heart attack in 2021. He was unable to return to Zimbabwe at that time due to COVID-19 restrictions. He continued to have a close relationship with his mother who he would speak to on a weekly basis. He has also maintained contact with his siblings.

26. [41]

    The applicant attended school and received average grades. He then completed a bachelor’s degree in political science before working as a personnel manager for two years. He joined a political party named “Movement for Democratic Change” and was an active member of the party before experiencing persecution from the Zimbabwe government leading to him fleeing to Australia as a refugee. He told Mr Wong that he believes he is still wanted by the Zimbabwe government.

27. [42]

    Dianne Hill was operations manager of a labour hire company. The applicant had worked with the company prior to his arrest and returned to work following his release to bail. She regarded the applicant as an asset to the company who would be missed if he were to be incarcerated. Elzzy Keny also provided a character reference in which she vouched for the applicant as an “upstanding citizen of the community” and a devoted family person. I take that evidence into account in the applicant’s favour.

28. [43]

    The applicant was in good physical health and had not previously received a mental health diagnosis. He told Mr Wong that when in Zimbabwe he had witnessed significant traumatic events including kidnappings, executions and torture. He denied experiencing fear or negative emotions related to this trauma but acknowledged that in the past he had experienced intrusive thoughts, flashbacks and nightmares.

29. [44]

    Like the sentencing judge, I take into account the fact that the lengthy remand period coincided with the COVID-19 pandemic and meant that the applicant experienced significantly more onerous conditions of custody.

30. [45]

    It is clear that, under s 16A(2)(p) the Court may take into account any probable effect on the offender’s family or dependents, and not only those effects that rise to the level of “exceptional hardship”: Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 at [77]-[93].

31. [46]

    I find that the applicant’s incarceration has undoubtedly had an impact on his son. The evidence as to extent of that impact, however, is limited and is given only by the applicant in his letter of apology and was not supplemented by any further evidence as to the actual impact of his incarceration upon his son since the sentence was imposed. I also take into account the probable effect the sentence under consideration would have on the financial support that the applicant could offer his son.

32. [47]

    I take these matters into account in fixing an appropriate sentence.

33. [48]

    The primary point of contention on appeal was the role of the applicant versus that of Mr AA in the offending. It is correct, as Mr Terracini pointed out, that the applicant was to receive payment for his role, whereas Mr AA was to sell the drugs and take a share of the profit. It is also correct that Mr AA had contact with another unknown person on 26 October 2021 who provided information about the consignment via a text message. Like the sentencing judge, I find that this warrants a conclusion that Mr AA had “some greater involvement on this issue” than the applicant.

34. [49]

    Neither of these features, however, warrant a conclusion that the applicant’s role should be seen as “substantially less” than Mr AA’s. I do not accept that the applicant's role was significantly less than Mr AA's, although it was marginally so. Both had their roles to play in the commission of the offence, and both were necessary participants. Mr AA was responsible for collecting the consignment and moving it on. The applicant was responsible for tracking the parcel.

35. [50]

    Although the applicant’s argument on this issue was confined to a comparison of role in the offending, it is also relevant in comparing the sentences imposed on each to have regard to Mr AA’s subjective case which included the fact he was 68 and had significant health issues which were likely negatively to impact his experience in custody. This emerges from the sentencing remarks of Judge Sutherland which were before the Court on resentence. Mr AA had a lengthy criminal record, including for drug-related offending. The starting point for Mr AA’s sentence imposed by Sutherland DCJ was approximately 5 years and 11 months before receiving any discount. In relation to the applicant, the starting point before the 10% discount was approximately 5 years and 2 months.

Conclusion and proposed orders

1. [51]

   In exercising the sentencing discretion afresh, I have come to the conclusion that the sentence imposed of 4 years and 9 months imprisonment with a non-parole period of 2 years and 7 months was a merciful one. Having regard to all of the matters required to be taken into account by Part IB of the Crimes Act, I have concluded that no lesser sentence is warranted in law.

2. [52]

   Accordingly, the orders I propose are:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.

3. [53]

   SWEENEY J: I agree with Payne JA.

4. [54]

   COLEMAN J: I agree with Payne JA.