Obiekwe v R

1. [1]

   PAYNE JA: This is an application for leave to appeal brought by the applicant, Mr Obiekwe, against the sentence imposed by Hock SC DCJ in the District Court.

2. [2]

   The applicant pleaded guilty to importing a commercial quantity of a border controlled drug, namely, methamphetamine, contrary to s 307.1 of the Criminal Code Act 1995 (Cth). The maximum penalty for this offence is life imprisonment and/or a fine of 7,500 penalty units (being $1,275,000).

3. [3]

   On 10 March 2017, the sentencing judge imposed a sentence of imprisonment of 12 years with a non-parole period of 7 years, each to date from 4 December 2014, the date the applicant was taken into custody. The non-parole period will expire on 3 December 2021. The head sentence will expire on 3 December 2026.

Relevant facts

1. [4]

   The following facts are taken from the agreed statement of facts before the sentencing judge in Exhibit A, and her Honour’s sentencing remarks.

2. [5]

   On 18 November 2014, Australian Customs and Border Protection Services conducted a targeted examination of a consignment that was shipped by sea cargo from a business in Guangzhou, China, to a person identified as Alieu Bah at 52/56 Robertson Road, Bass Hill, Australia.

3. [6]

   The description of the consignment was “LED lamps”. The consignment consisted of 18 cardboard cartons. Nine of the cartons displayed anomalies. One of these boxes was opened, and found to contain six air cylinders. One air cylinder was examined and found to contain a white crystalline substance which tested positive for methamphetamine.

4. [7]

   The consignment was seized by Australian Customs and Border Protection Services and handed over to the Australian Federal Police. The police made enquiries with Unity International Cargo Pty Ltd (Unity Cargo), the company authorised to act as a customs broker for the consignment. Those enquiries revealed that:

   1. (1)

      on 4 November 2014, Unity Cargo received a “Letter of Authority” from the Guangzhou Triumph International Freight Company which authorised Unity Cargo to act as a customs broker for the consignment. The letter contained the details of the consignee, including the name “Alieu Bah”, a mobile telephone number ending in 707 and a delivery address, being 52/56 Robertson Road, Bass Hill, New South Wales, Australia; and

   2. (2)

      on 27 November 2014, the applicant, purporting to be Mr Alieu Bah, and using the mobile telephone number ending in 707 contacted Unity Cargo and quoted the number of the consignment to confirm the delivery address as 52/56 Robertson Road, Bass Hill.

5. [8]

   Police investigations confirmed that Mr Ali Baha in whose name the mobile telephone number ending in 707 was registered had no involvement with the importation of the consignment and was not the subscriber to the mobile telephone number ending in 707.

6. [9]

   The mobile telephone number ending in 707 associated with the consignment had been connected on 8 October 2014. On the same date, the email address abah8325@gmail.com was created and an Australian Business Number ending in 542 was registered to a “Mohamed Bah”.

7. [10]

   On 28 November 2014, a lawfully recorded telephone intercept recorded the applicant’s telephone call using the mobile telephone ending in 707 with Mr James Chen from Unity Cargo. The applicant inquired whether the consignment could be delivered that afternoon. The applicant provided Mr Chen with the correct freight number for the consignment of “LED lamps”.

8. [11]

   On 1 December 2014 at 1.53pm, a lawfully recorded telephone intercept recorded the applicant’s telephone call, using the mobile telephone ending in 707 with Mr Chen. That call recorded further details of arranging delivery of the consignment to the Robertson Road address. At 2.19pm that day, a lawfully recorded telephone intercept recorded the applicant’s telephone call using the mobile telephone ending in 707 with Mr Chen in which further details about the delivery of the consignment were discussed. At 6.39pm, Mr Chen received an email from brendonlarry@gmail.com confirming delivery details as the Robertson Road address. The email attached a photo identification card belonging to Mohamed Alieu Bah born on 10 October 1991 of the Robertson Road address.

9. [12]

   The email address brendonlarry@gmail.com was accessed via the IP address of Video Ezy at Luxford Court Shopping Centre in Zoe Place, Mount Druitt. An invoice dated 1 December 2014 from Video Ezy Mount Druitt for internet use was located in the applicant’s wallet when he was arrested.

10. [13]

    On 2 December 2014, Mr Chen contacted the mobile telephone number associated with the consignment and confirmed the delivery date as Thursday 4 December 2014.

11. [14]

    On 4 December 2014, the police simulated delivery of the consignment to the Robertson Road address. A police officer purporting to be a TNT delivery driver saw Mohamed Alieu Bah walking from the Robertson Road address. The officer asked Mr Bah for identification. Mr Bah provided a photo identification card. This was the same photo identification card that had been attached to the email to Mr Chen of Unity Cargo on 1 December 2014. At 2.17pm on 4 December 2014, Mohamed Alieu Bah was placed under arrest.

12. [15]

    At the same time, the police observed the applicant in the passenger seat of a black vehicle which was positioned so as to have a direct view of 56 Robertson Road from the rear windscreen. The applicant was also placed under arrest.

13. [16]

    During a search of the vehicle in which the applicant was found, the police found the mobile telephone containing the sim card of the mobile telephone associated with the consignment ending in 707. They also located documents relating to the registration of the Australian Business Number (ending in 542) which was registered to a “Mohamed Bah”. The police also found an Australian passport and a Nigerian passport in the name of the applicant. Both passports had stamps which indicated the offender had travelled to China.

14. [17]

    Later analysis of the crystalline material in the consignment gave a calculated weight of 21.8 kilograms of methamphetamine with a purity of 77.8 per cent to 80.3 per cent. The pure weight of methamphetamine was 17.43 kilograms. The wholesale price in NSW for this quantity of the drug in 2014 was estimated as being between $3,800,000 and $4,700,000. The street price in NSW for this quantity of the drug in 2014 was estimated as being between $13,374,620 and $15,285,280.

The remarks on sentence

1. [18]

   The applicant tendered, without objection, numerous documents on sentence. These exhibits included a report prepared by a psychologist, Ms Player, dated 29 August 2016 and an undated letter of apology written by the applicant.

2. [19]

   In relation to the seriousness of the applicant’s offending, the sentencing judge found:

3. [20]

   In relation to the role of the applicant, the sentencing judge found that the applicant played a “central and significant role in the importation”. Her Honour found that he was solely in charge of getting the consignment to the Robertson Road address once it arrived in Australia, and “[t]he fact that there may have been others involved overseas does not diminish his culpability”.

4. [21]

   The sentencing judge considered the subjective circumstances of the applicant. The applicant was 31 at the time of the offence with no previous convictions. Her Honour found:

5. [22]

   The sentencing judge found that the applicant had very good prospects for rehabilitation and would be unlikely to reoffend. In so finding, her Honour noted that the applicant’s conduct in custody had been “exemplary”, and that he had commenced further study in the metal working and engineering fields.

6. [23]

   In sentencing the applicant, the sentencing judge took into account the plea of guilty which was entered a week before the date fixed for trial, and reduced the sentenced by 10 per cent as it indicated “…an acceptance of responsibility and a willingness to facilitate the course of justice”.

Appeal to this Court

1. [24]

   At the outset of the oral submissions counsel for the applicant sought and was granted leave to file out of time an amended Notice of Appeal containing three grounds:

   1. (1)

      the sentencing judge’s finding that the applicant’s reward for committing the offence “must have been a significantly greater sum” than the $8,000 benefit claimed was not open on the evidence;

   2. (2)

      the sentencing judge failed to take into account the degree to which the applicant had shown contrition pursuant to s 16A(2)(f) of the Crimes Act 1914 (Cth); and

   3. (3)

      the sentencing judge erred in not taking into account utilitarian considerations when allowing a 10 per cent discount for the applicant’s plea of guilty.

Ground 3

1. [25]

   It is convenient first to address ground 3. In Xiao v R [2018] NSWCCA 4, which was delivered after the sentencing judge had delivered her decision, this Court held that the utilitarian value of the plea of guilty should be taken into account in addition to any relevant subjective factors such as contrition or remorse. Earlier authority to the contrary was not followed.

2. [26]

   The sentencing judge said:

3. [27]

   It is clear in making this finding the sentencing judge followed, as she was invited to do by the Crown at the sentencing hearing, the earlier decision of this Court in Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458 at [114], which was not followed in Xiao.

4. [28]

   The Crown accepted that ground 3 was established and that it would thus be necessary for this Court to itself sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

5. [29]

   The Crown accepted that the sentencing judge did not take into account the objective utilitarian value of the applicant’s plea of guilty, but submitted that on the correct approach, no greater discount was warranted. The case was in the same category as that discussed in Xiao at [369]:

6. [30]

   The Crown submitted that, upon the re-sentencing this Court must undertake, no lesser sentence than that imposed was warranted in law.

7. [31]

   As error has been established and it is incumbent upon the Court to itself re-sentence the applicant, it is unnecessary and undesirable for this Court to address grounds 1 and 2 of the appeal.

Sentence

1. [32]

   The relevant facts have been identified above. The applicant is to be sentenced for the offence against Commonwealth law and the Court is required to apply the terms of Part 1B of the Crimes Act 1914 (Cth). The governing 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.

2. [33]

   Neither party suggested that the following sub-sections were relevant here: 16A(2)(b), (c), (e), (ea) or (fa).

3. [34]

   The maximum penalty for the offence is life imprisonment and/or a fine of $1.275 million. The maximum penalty serves as a yardstick: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25. It is important to have regard to the maximum penalty to determine the degree to which the applicant’s conduct offends against the legislative object of suppressing the illegal importation of narcotics. In addressing this question, care should be taken to ensure that what the applicant actually did is considered, rather than any shorthand label: Olbrich v The Queen (1999) 199 CLR 270; [1999] HCA 54.

4. [35]

   The applicant was the central person in the importation hierarchy at the Australian end of the illegal importation. In performing his role the applicant did the following things:

   1. (1)

      registered an Australian Business Number;

   2. (2)

      created an email address, using a false name;

   3. (3)

      created a mobile telephone account, using the identity of an innocent third party, which was used to communicate in relation to the importation;

   4. (4)

      used the name and address details of another person, including the photo identity of that person, as providing the address for the delivery of the importation;

   5. (5)

      procured a letter of authority from an international freight company to present to a customs broker in Australia;

   6. (6)

      communicated with the customs broker in Australia, including by providing the details of the consignment;

   7. (7)

      arranged delivery of the importation;

   8. (8)

      communicated with the customs broker and provided the identity of another person as the importer;

   9. (9)

      recruited a second person to accept delivery of the consignment; and

   10. (10)

       drove to the delivery site to observe the delivery of the consignment.

5. [36]

   There was a significant degree of planning by the applicant in the importation of the 17.4 kilograms of methamphetamine. The commercial quantity of methamphetamine is only 0.75 kg: Sch 4 Criminal Code. While I cannot conclude that the offender knew the weight of the drug imported, he must have known that it was a significant quantity given the size of the consignment. The applicant used numerous false details in an attempt to prevent detection by law enforcement.

6. [37]

   Whilst care should be taken to avoid the application of sentencing principles based principally on the weight of narcotics detected, the applicant imported over 20 times the commercial quantity of pure methamphetamine.

7. [38]

   Although there is no specific evidence that the applicant received a financial reward for his role in the offence, this is the obvious motivation for his involvement. In R v Kaldor [2004] NSWCCA 425; (2004) 150 A Crim R 271 at [104] Howie J said:

8. [39]

   The proposition, that as a matter of common sense, unless there is evidence to the contrary, a person who is importing drugs is doing so for profit, has been followed on numerous occasions: R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106; Wang v R [2010] NSWCCA 319; Tiknius v R [2011] NSWCCA 215; 221 A Crim R 365; R (Cth) v Yuan [2015] NSWCCA 198; 252 A Crim R 422; R v Constant [2016] SASCFC 87; 126 SASR 1; R v Scott [2017] SASCFC 96.

9. [40]

   It is appropriate to draw that inference here. I reject the submission based on what the applicant told his psychologist, Ms Player, that he would “clear the debt” of $8000 owed to unnamed “peers” in exchange for his participation in the offence. Whilst Ms Player’s report was admissible, I propose to exercise considerable caution in relying upon it in the absence of sworn evidence from the applicant: R v Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 at [58]-[59]. I do not accept the evidence that the applicant’s participation in the importation was to “clear the debt” of $8000 owed to unnamed “peers”.

10. [41]

    It is not possible on the evidence to identify the financial reward the applicant was to receive for his participation in the importation. Nor, beyond the finding I have made that the applicant participated for profit, is it necessary to do so.

11. [42]

    In my view, the applicant’s conduct constitutes a very serious breach of s 307.1(1) of the Criminal Code. On all of the available evidence, the applicant’s role in the importation was central. There is no evidence that anyone other than the applicant, beyond Mr Bah who was not an organiser, was involved at the Australian end of the operation. This was a very significant importation of methamphetamine, being over 17 kilograms pure.

12. [43]

    I take into account that the applicant was 31 at the time of this offence. He had no previous convictions.

13. [44]

    Despite the caution with which I approach the untested assertions contained in the report prepared by Ms Player, it is nonetheless appropriate to take into account, based on that report, the following matters.

14. [45]

    The applicant was born and raised in East Nigeria. He is the eldest of five sons and two daughters. I accept that his early childhood was characterised by financial difficulty, and that he was the victim of coercive physical punishments (particularly by his father). His parents separated when he was young.

15. [46]

    When the applicant was 12 his mother reconciled with his father and re-established her status as his “first wife”. The applicant was subjected to his father’s continued emotional and physical abuse but this was moderated as he aged.

16. [47]

    After finishing high school in 2002, the applicant progressed to the equivalent of a TAFE institution, where he completed a two year diploma in business and graduated in 2005.

17. [48]

    The applicant emigrated to Australia when he was 24. The applicant adjusted well to residing in Australia and enjoyed stable accommodation prior to his incarceration in December 2014. The applicant completed a business management diploma at a private education institution in 2010. The applicant undertook and completed a Bachelor of Nursing from the University of Tasmania between 2012 and early 2014.

18. [49]

    The applicant, after arriving in Australia in March 2008, worked for about four months in a meat factory and subsequently as a labourer at a metal fabrication company for two months. From 2009, the applicant worked in a nursing home on a casual basis, including when he was studying for his nursing degree. He was working casually in this role at the time of his offending in late 2014.

19. [50]

    The applicant began a serious intimate relationship in 2006 with an Australian woman who he met online, and she visited him in Nigeria. She sponsored him to emigrate to Australia in 2008. This partner dissolved their relationship at the end of 2008.

20. [51]

    The applicant met and subsequently married an Australian woman in September 2009. After the applicant returned from a two week vacation in Nigeria in late 2011, he and his wife mutually agreed to separate.

21. [52]

    Additionally, I find as follows:

    1. (1)

       the applicant has lived in Australia without significant family support since emigrating in 2008. He obtained a Bachelor of Nursing and did reasonably well in his studies to obtain that degree;

    2. (2)

       the applicant has very good references from friends, local church leaders and housemates; and

    3. (3)

       the applicant’s behaviour in gaol has been exemplary (both before and after his sentence). He is adept at metal work and has an offer of employment in that field when his term of imprisonment is over.

22. [53]

    I also take into account the affidavit of the applicant sworn on 2 March 2018. It demonstrates that he has committed no offences in prison. The applicant is now housed at the South Coast Correctional Centre at Nowra. He plans to apply to do a Business Degree course at the University of Southern Queensland when that becomes available in March 2018.

23. [54]

    The applicant is entitled to have all of these matters taken into account in his favour.

24. [55]

    The applicant did not give evidence on sentence, although a letter written by him was tendered. There is some evidence of the applicant’s contrition in that letter and the report of the psychologist, Ms Player.

25. [56]

    I give the applicant’s letter some limited weight in assessing whether he has shown contrition “in any other manner”. The letter does contain some expressions of remorse for his participation in the importation but reveals little insight into the devastation likely to be wreaked by the amount of methamphetamine he was engaged in importing.

26. [57]

    I also give some limited weight to the report from Ms Player in assessing whether he has shown contrition “in any other manner”. As Ms Player said, “he also took responsibility and appeared remorseful for his actions”. The report contains little else which demonstrates any contrition on the part of the applicant. In any event, whilst Ms Player’s report was admissible, as I have said, I exercise considerable caution in relying upon it in the absence of sworn evidence from the applicant.

27. [58]

    Accordingly, I take both of these matters into account, but give them only limited weight. The extent to which the applicant has shown contrition is limited, but must be taken into account in his favour in fixing an appropriate sentence.

28. [59]

    I specifically take into account that the applicant has pleaded guilty. He did so at a relatively late stage, but before his trial first commenced. The applicant is entitled to a utilitarian discount for his guilty plea: Xiao. Given the late stage at which the plea was entered, I nominate that utilitarian benefit as entitling the applicant to a discount of 10 per cent from the sentence which would otherwise have been imposed.

29. [60]

    No greater discount is warranted in this case by reason of the unsuccessful earlier attempts by the applicant to enter a plea of guilty to a lesser offence which would not have reflected the criminality involved in this case.

30. [61]

    Save that a plea of guilty was entered before the trial, the applicant did not cooperate with or assist law enforcement agencies in the investigation of this offence or any other offence. This is not a matter to be taken into account against his interests, but neither does it entitle him to any consideration in his favour.

31. [62]

    The sentence imposed must be adequate to deter the applicant from ever again participating in an importation of narcotics into Australia. To give effect to specific deterrence, a fulltime custodial sentence is required.

32. [63]

    The sentence imposed upon the applicant must also be of such severity as to deter others from seeking to import prohibited narcotics into Australia. Evidence of the utter devastation wrought by methamphetamine on victims, users and communities is an all too regular background to proceedings in this Court. Those who seek to import commercial quantities of prohibited narcotics into this country must understand that when they are detected, condign punishment will follow.

33. [64]

    A lengthy period of imprisonment is the only appropriate sentence in the circumstances of this case. The offending is very serious. The applicant took a risk that his offending would not be detected and took deliberate steps to hide his involvement in the importation.

34. [65]

    I have taken into account the cases provided by the Crown involving similar conduct. I have treated these cases as providing a yardstick, and not as fixing boundaries within which the offender should be sentenced.

35. [66]

    The schedule of cases said to be comparable and relied upon in this Court were: Saab v The Queen [2012] VSCA 165, DPP (Cth) v Peng [2014] VSCA 128 and R v Tam [2013] WASCSR 226.

36. [67]

    In Saab v The Queen [2012] VSCA 165, the offender pleaded guilty to importing 14.6 kilograms of cocaine (a commercial quantity), contrary to s 307.1(1) of the Commonwealth Criminal Code 1995 (Cth). The drugs were contained in plastic-wrapped blocks which were hidden in the legs of a lifting device known as a “Beam Four Point Spreader”. The spreader was sent by air from Canada and landed at Sydney Airport. One of the co-offenders arranged transportation and collection of the spreader. The offender supervised both co-offenders in arranging for the collection of the spreader and the retrieval of the drugs. The offender had kept people residing overseas informed about the movements of the spreader and received instructions from them as to how precisely the device was to be dismantled so that the drugs could be removed. The Court of Appeal (Buchanan, Weinberg and Mandie JJA) said at [11]:

37. [68]

    The offender was sentenced by the sentencing judge to a term of 14 years’ imprisonment with a non-parole period of 10 years. The Victorian Court of Appeal dismissed the appeal. In relation to the guilty plea ground, the Court said at [62]:

38. [69]

    In DPP (Cth) v Peng [2014] VSCA 128, the offender pleaded guilty to importing 23.154 kilograms of pure methamphetamine from Taiwan contrary to s 307.1(1) of the Criminal Code. The offender arrived in Australia, registered a mobile number, and rented a room in a house in Melbourne for the purpose of delivery. The plea of guilty was entered on the morning of the committal hearing. The offender was sentenced to 11 years in prison by the sentencing judge, with a non-parole period of 7 years and 6 months.

39. [70]

    The Crown appealed the sentence. Nettle and Redlich JJA (with whom Priest JA agreed) upheld the appeal and said at [14] and [16]:

40. [71]

    The principal ground of appeal was that the sentence imposed by the sentencing judge was manifestly inadequate. Nettle and Redlich JJ said at [39]:

41. [72]

    The Victorian Court of Appeal allowed the appeal, and re-sentenced the offender to imprisonment for 13 years, with a non-parole period of 10 years.

42. [73]

    In R v Tam [2013] WASCSR 226, the offender pleaded guilty to two counts: one of importing a commercial quantity of methamphetamine and the second of trafficking in a commercial quantity of methamphetamine. In relation to the first count, the offender was involved in arrangements to ship large quantities of methamphetamine from China. In relation to the second count, the offender bought mobile phones and SIM cards in false names under his housemate’s instructions. He and his housemate purchased items for use in drug dealing, including scales and clip seal bags. The housemate would send methamphetamine by post to an intermediary, and the offender’s role was to collect and hold the drugs until he was requested to provide them to the housemate. The sentencing judge found that the offender’s role later expanded to placing some drugs in a car for delivery, attending to the sale of drugs and placing drugs in a hiding place in a restaurant.

43. [74]

    The offender was sentenced to 10 years and 6 months, with a non-parole period of 6 years and 4 months. The sentencing judge noted that the offender’s principal factors of mitigation were his guilty plea and offers of cooperation. At [20]:

44. [75]

    It is clear that those cases involve a wide range of conduct. The closest to the present is Peng, where, following a plea of guilty in relation to an importation of 23.154 kilograms of pure methamphetamine and on a Crown appeal, the offender was re-sentenced to 13 years with a non-parole period of 10 years. Using this case as a yardstick, the sentence imposed here of 12 years with a non-parole period of 7 years appears favourable to the applicant. The same may be said of Saab and, to a lesser extent Tam, where past and future cooperation loomed large.

45. [76]

    I also take into account what the High Court made clear in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [18], that consistency in federal sentencing is not demonstrated by, and does not require, numerical equivalence.

46. [77]

    I have taken into account the age of the applicant. That age is not particularly young or impressionable. At 31, the age he was when the offence was committed, he was not a youth. I have taken into account the absence of any criminal antecedents in the applicant’s favour. The means of the applicant are modest. This is not a factor either in his favour of tending against his interests on sentence.

47. [78]

    I have taken into account, in the limited way earlier identified, the evidence in Ms Player’s report about the physical and mental condition of the applicant. There is, in any event, no evidence about any physical health issue and the “underlying [psychological] vulnerabilities” identified by Ms Player lead me to conclude no more than she did; that he could benefit from engaging in some treatment to teach him strategies to better manage anxiety and stress.

48. [79]

    I regard the applicant’s prospects of rehabilitation as very good. It is a first offence. His behaviour in prison has been exemplary and he has taken significant steps towards rehabilitation. He is unlikely to re-offend. All of these matters tend strongly in his favour.

Conclusion and orders

1. [80]

   Taking all of these matters into account I have formed the view that no lesser sentence is warranted in law than a sentence of imprisonment of 12 years with a non-parole period of 7 years, each to date from 4 December 2014.

2. [81]

   I propose that leave to appeal against the sentence imposed be granted but the appeal be dismissed.

3. [82]

   JOHNSON J: I agree with the reasons of Payne JA and with the orders proposed by his Honour.

4. [83]

   CAMPBELL J: I agree with Payne JA.