Eriyo v R

Facts

1. On 13 May 2012 Australian Customs and Border Protection officers intercepted a UPS consignment from Tanzania purporting to have a telephone number 00 200 577 808 4655 to a person called Christiana Ohia at an address in Pendle Hill purporting to have a telephone number of 0470 457 943. The consignment contained 130.1 grams of pure heroin within the soles of sandals contained therein.
2. On 16 May 2012 an unknown male called the UPS call centre and requested that the consignment be delivered to Unit 6/98-100 Metella Road, Toongabbie rather than the stated Pendle Hill address. The Metella Road address was the home address of the Applicant.
3. On 17 May a controlled delivery was attempted at this address but the front door was not answered. The following day an unknown male called the UPS call centre and requested that the consignment be delivered on 21 May 2012.
4. On 22 May 2012 a controlled delivery of a substitute substance was effected. The Applicant answered the door and when asked if he was Christiana Ohia he agreed. He signed the delivery slip and took possession of the substitute parcel. A few minutes later AFP officers saw the Applicant walk towards a motor vehicle parked at the front of the unit block. When the Applicant saw the officers he ran back into the premises and attempted to exit via the rear door. He was stopped and arrested. This formed the basis for Count 1.
5. During a search of the Applicant officers located a Samsung mobile telephone. The telephone was examined and found to contain a contact listed against the number 00 255 577 808 4655 (sic) which it was accepted was the same number recorded in the consignment.
6. An examination of the phone showed four missed calls from the number ending in 4655 between 16 and 22 May 2012 as well as six outbound calls to that number between 21 May and 22 May 2012. There were also SMS messages which contained references to the UPS tracking number for the consignment, the sender's name in Tanzania and the receiver's name (Ohia) and references to the Pendle Hill address to which the consignment was directed. The numbers 25 577 (sic) were accepted by the parties as being the country code digits for Tanzania.
7. The Applicant's premises were searched. The substitute package was on a couch in the lounge room. The Applicant had opened it and the contents had been partially removed. Torn pieces of paper with handwritten notes including the name of the consignee, Christiana Ohia, and the purported contact number 0470 457 943 were located in a recycling bin. Five mobile telephones were located, one of which used a telephone number 0470 457 943. An examination of these five mobile telephones and the torn pieces of paper showed a connection between the Applicant and the consignment.
8. Also located inside a plastic bag within a running shoe under the laundry sink was 118.7 grams of pure heroin. That heroin was the basis for count 2 on the indictment.
9. During a recorded conversation the applicant said that he knew the packages he had been receiving contained drugs.
10. The Sentencing Judge was satisfied that in relation to both offences the Applicant's actions went well beyond that of a mere courier or conduit. Her Honour was satisfied the Applicant played a role akin to being a trusted middleman in an organised distribution chain. However, it was not he who conceived of the enterprise, and he did not have the funds to finance it.
11. The Sentencing Judge characterised both offences as being objectively serious offences.
12. The Sentencing Judge found that the Applicant was not a person rendered vulnerable by drug or other addiction. Her Honour said that there was no dispute that the Applicant's motivation was a financial one. However, there was no evidence to indicate he was living a life of luxury or excess. She characterised his motivation as one to earn money to supplement what he was otherwise earning from time to time.

Subjective matters

1. The Applicant was born in 1978 and at the time of sentence was aged 35 years. He was of Nigerian descent. He was educated in Nigeria and subsequently employed by the Nigerian government as an athlete. He came to Australia in 2006 to compete in the Commonwealth Games and was then granted refugee status. He has dual Australian and Nigerian citizenship. Since living in Australia he had been employed in the cleaning and security industry.
2. Although the pre-sentence report suggested that the Applicant had limited insight into the seriousness of his offending, her Honour on balance was prepared to accept that he was remorseful although aspects of his remorse related to feelings of shame and regret for himself given the predicament he was in.
3. He had no criminal history but her Honour noted that this was not unusual for persons involved in offences of the type under consideration.
4. Her Honour accepted that he pleaded guilty at an early stage for both offences and she said that this entitled him to a 25% discount. There had been limited cooperation with authorities and her Honour made a minor allowance to recognise that matter.
5. Her Honour made reference to the totality principle. She said that the offences before the Court were separate and discrete with the result that there was to be a degree of accumulation to reflect the separate criminality involved in each offence.

Grounds of appeal

1. The Crown did not contest that error had been made in the imposition of two non-parole periods contrary to s 19AB of the Crimes Act 1914 (Cth). Nor did the Crown contest that an error had been made in calculating the period of pre-sentence custody. With the latter error being adjusted in the manner to be described, the sole issue in the appeal concerned the period of the overall non-parole period.

Ground 1: The non-parole period was manifestly excessive.

1. Although her Honour ought not have imposed separate non-parole periods for the individual offences, in having done so and then accumulating them in the way that she did, her Honour has exposed her reasoning for reaching the overall non-parole period that she imposed.
2. Her Honour adopted a ratio of 66 2/3% in relation to each of the sentences imposed on the Applicant. However, when the sentences were accumulated the effect was to create an overall non-parole period of 71%. Her Honour was not unmindful that this would occur because, having accumulated the sentences to reflect the separate criminality involved in each offence, she went on to say: I recognise that a consequence of this will be a slight increase to the overall ratio between the non-parole period and the overall total term.
3. The Applicant relied on what was said by Howie AJ in Okeke v R [2010] NSWCCA 266 at [38] where his Honour referred to "the normal range of non-parole period for Commonwealth sentences". Okeke was decided before Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520 and those comments of Howie AJ, if they were intended to have general application or provide some sort of a norm, no longer apply.
4. The applicant also drew attention to nine cases involving sentencing for Commonwealth drug offences to demonstrate that the ratio of the non-parole period to the overall sentence in the present case was such that the non-parole period was manifestly excessive.
5. This Court has recently warned of the difficulties which are prone to arise from a comparison of a number of cases to show some established sentencing range for particular offences: MLP v R [2014] NSWCCA 183 at [41] -[44]; Briouzguine v R [2014] NSWCCA 264 at [74] - [78].
6. In any event an examination of the cases put forward by the Applicant shows that in only one of those cases (Alvares v R; Farache v R [2011] NSWCCA 33; (2011) 209 A Crim R 297) was the issue of the ratio between the non-parole period and the total sentence discussed. The relevant ground of appeal asserted a reliance by the sentencing judge on what was described as the "norm" of 60-65%. Buddin J (with whom McClellan CJ at CL and Schmidt J agreed) at [74] - [78] made reference to Hili at [36] - [38] and [44] where the notion of any such "norm" was disapproved.
7. It may be accepted that the ratio involved in the sentencing in all the cases referred to was in the range of 55% to 68%. In none of the cases except Alvares was there any challenge to that aspect of the sentencing and in many cases the grounds of appeal principally concerned conviction. However, by comparison with that range, a ratio of 71% in the present case is not so unusual as to raise any concern that error has occurred. That is the more so when the Sentencing Judge expressly adverted to the matter.
8. Moreover, the Applicant conceded in his written submissions that the sentences imposed by her Honour were reasonable and were clearly within the acceptable range for the types of offences. The offences involved serious amounts of a pure form of the drug, and two separate amounts of the drug pointing strongly to an ongoing involvement of a trusted middleman in what the Sentencing Judge described as an organised distribution chain.
9. In my opinion, no error is shown in relation to the non-parole period imposed by the Sentencing Judge. To the extent that error is demonstrated because she first imposed two separate non-parole periods and then partially accumulated them, no lesser sentence is warranted than the overall non-parole period produced by that exercise.

Ground 3: Period of pre-sentence custody

1. Her Honour sentenced the Applicant on 28 February 2014. In doing so she said this: I have taken into account the fact he was in custody, bail refused, between 22 May 2012 and 6 June 2012, and of course his pleas of guilty. I intend to backdate the sentence so it commences from the time he was taken into custody, that is, 21 February 2014.
2. The period from 22 May to 6 June 2012 is a period of 15 days. In addition, her Honour revoked the applicant's bail at the conclusion of the sentencing hearing on 21 February 2014. In those circumstances Her Honour ought to have backdated the sentence to 6 February, being 22 days prior to the date she imposed the sentence. The Crown accepts that her Honour erred in that regard.

Conclusion

1. I propose the following orders: (1) Leave to appeal granted. (2) Appeal allowed. (3) Quash the sentences imposed in the District Court on 28 February 2014. (4) In lieu thereof sentence the Applicant as follows: Count 1: Imprisonment for six years commencing 6 February 2014 and expiring 5 February 2020; Count 2: Imprisonment for six years commencing 6 December 2014 and expiring 5 December 2020; Fix a non-parole period of four years ten months commencing 6 February 2014 and expiring 5 December 2018.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 March 2015