Nweke v R

Court of Criminal Appeal (NSW)|2020-04-15|Before: McCallum JA, Davies J, Button J

The unknown male suggested packaging the drugs in a calendar, a method he said he had used "for a lot of successful trades". The conversation continued: "PN But you cannot compare Senegal with where I am. UM I also prepared one for someone who will be leaving for Europe this evening. PN Yeah, but it has not gone in yet my brother, it has not gone in yet, and you are not yet sure. UM My brother listen, as for going in, I am giving you the assurance that it will go in. The only thing is that, you know where it is going to, so we will still have to mix it up with other goods, you know where it is going to. But the thing is…you know…when it gets there…instead, they will bring it out bit by bit, maybe in twos and threes, two today, three next time. PN To bring it into this country? UM Yes PN Man, my brother, wow for you. How can you talk like this? Do you think I have a queue of birds waiting to bring it out?" (emphasis added)

In our view it is clear that, in that conversation, the problem the two men were discussing was the fact that the packaging of the drugs needed to be appropriate not only for the purpose of getting the drugs into Vanuatu but also for the purpose of bringing them back out of Vanuatu and into Australia ("into this country"). The submission that the applicant was rejecting a proposal to bring drugs into Australia may confidently be rejected. What he was rejecting was a proposal that the drugs be brought into Australia "bit by bit, maybe in twos and threes, two today, three next time". He rejected that proposal because it would require "a queue of birds" waiting to bring drugs from Vanuatu to Australia.
The applicant also relied on a much earlier conversation when a person from South Africa suggested bringing someone over "at your side". It was submitted that the applicant rejected that proposal because (quoting the submission), "there was no market for it". We agree that that is how the conversation went but it is clear from the context that the participants in that conversation were talking about methylamphetamine, not cocaine. The applicant said "what you want to bring for me is useless here now" because "they produce it very well here". He later explained that it is slow to sell and that he had had an experience where an importation of that drug had gone "bad" and that the people he had sold it to had brought it back and asked for a refund. The other person then asked "what of the 'ball'? Does it sell well there?" to which the applicant replied that was "the hot seller here now!" It was the Crown case that "the ball" was a reference to cocaine from Brazil because the World Cup (an international football competition) was hosted in Brazil that year.
In an earlier conversation with a person in Nigeria the applicant had also agreed that "Bethel goods" (cocaine) can be sold for a good price in Australia ("yes, why not, of course") but "the problem is for it to come in".
We do not accept that the conversation relied upon by the applicant shows that he rejected a proposal to bring cocaine into Australia on the basis that there was no market for it. On the contrary, it is clear that he wanted to import cocaine because there was a good market for it; that he appreciated the difficulty of getting cocaine into Australia; and that his planning was careful and patient for that reason.

Mr Strand's Itinerary

As outlined above, Mr Strand was in possession of an airline ticket on which Vanuatu was his final destination and Sydney only a point of transit. His bags were checked through all the way to Vanuatu. The applicant submitted that it would be "a most unusual case" that a drug courier would be sent to Vanuatu via Sydney if the ultimate destination was Sydney. However, three considerations militate against the conclusion that Vanuatu was intended as the final destination for the cocaine.
First, there are a number of conversations which indicate that Vanuatu was not the final destination for the cocaine. We have already referred to the conversation on 24 April 2014 in which it is clear the applicant was discussing how the drugs might be brought out from Vanuatu into Australia, when the applicant rejected the suggestion that they could be brought out "in twos and threes, two today, three next time". On 27 April 2014, the applicant told his associate in Nigeria to tell Mr Strand "that he should buy a sim card for that country [clearly a reference to Vanuatu] as soon as he arrives [in] that country". The applicant continued: "Then he should call you people and give you his number, do you understand? Because after he gives you his number, then my partner can leave from here and start going there. Do you understand?" (emphasis added)
Further, in a discussion of Mr Strand's movements with his associate in Nigeria on 28 April 2014, the applicant said: "I am just….we are waiting. Once he arrives, we will make plans on how to move, there is no problem. Do you understand?"
Secondly, there was no discussion at any stage as to how the drugs might be sold or made profitable in Vanuatu. Neither the applicant nor any of his associates made reference to any associates in Vanuatu, nor did they discuss the drug market in Vanuatu. By contrast, there were a number of discussions of the market for cocaine in Australia, including his exclamation on 26 January 2014 that the "ball" (cocaine) is "the hot seller here now!"
Finally, Mr Strand's itinerary was changed to make Vanuatu the final destination rather than Fiji only shortly before he left South America. That is an indication that Vanuatu was never a significant destination in the applicant's plan; the critical consideration was the ability to obtain an itinerary that would not require Mr Strand to handle the checked luggage until he reached the final destination.

Reasons for sending Mr Strand to Vanuatu

As already noted, the applicant submitted that it would be an unusual case that drugs would be sent via Australia to another destination if Australia was intended to be the final destination. However, that submission ignores the fact that the drugs in question originated in South America. It is clear from the transcripts that the applicant was acutely concerned about the likelihood of the drugs being detected. On 17 March 2014, he told his Brazilian associate that "the thing will not be successful directly from your side." The clear implication is that items brought into Australia from Brazil are likely to be subjected to greater scrutiny by Australian border control.
Our consideration of the evidence has not left us in any doubt that the applicant's negotiations contemplated that the cocaine he purchased from Brazil was ultimately destined for Australia where he could sell it for profit.

Ground 2: error in the application of s 19AQ of the Crimes Act 1914 (Cth)

When sentencing the applicant Judge Townsden said this: "The offender committed this offence whilst on parole and as a consequence, pursuant to s 19AQ(1) of the Crimes Act, the parole order is "taken to have been revoked upon the imposition of the sentence or sentences". The offender then becomes "liable to serve that part of the sentence.. .for a federal offence that the person had not served at the time of his...release under that order": s 19AQ(5). The offender's parole period for his previous offence was three years and six months. Counsel for the offender submitted that as a consequence the offender must serve 11 months' imprisonment, that being the unexpired period of his parole. Counsel referred to the decision of Khaled Jomaa v The Queen [2014] VSCA 103 at para 68. However, s 19AQ is quite clear. Subsection 5 clearly states that "the person becomes liable to serve that part of the sentence or each sentence for a federal offence that the person had not served at the time of his or her release under that order." The section clearly states that it is the period at the time of release and is not to be determined by the unexpired portion of that sentence. Indeed in the decision of Jomaa the offender was ordered to serve the entire parole period, that being one year and three months. In respect to the previous sentence, the parole order is revoked and the offender is sentenced to a term of imprisonment of three years and six months which is to commence on 30 April 2014 and expire on 29 October 2017. In respect to the present offence of conspiring to import a border controlled drug, being a commercial quantity of cocaine, the offender is sentenced to a term of imprisonment of 13 years and nine months. That sentence is to be partially accumulated on his first sentence after having served two years. It is to commence on 30 April 2016 and will expire on 29 January 2030. His overall total sentence is therefore 15 years and nine months. I set a single non-parole period of ten years and six months' imprisonment. The non-parole period, commencing on 30 April 2014, will expire on 29 October 2024. The offender is therefore eligible to be released to parole on 29 October 2024."
The applicant had been sentenced in the District Court on 9 March 2007 for aiding and abetting the importation of a trafficable quantity of a border controlled drug. The sentence imposed was imprisonment for ten years commencing 31 March 2005 and concluding on 30 March 2015. He received a non-parole period of six years and six months expiring on 30 September 2011. The present offence was committed whilst he was on parole for the earlier offence.
Sections 19AQ and 19AR of the Crimes Act 1914 (Cth) relevantly provide: 19AQ When parole order or licence automatically revoked (1) Where a person to whom a parole order relates is sentenced to life imprisonment or to a sentence of, or sentences aggregating, more than 3 months in respect of a federal, State or Territory offence committed during the parole period, the parole order is to be taken to have been revoked upon the imposition of the sentence or sentences. (2) If, at the time of imposition of the sentence or sentences, the federal parole period has already ended, the parole order is to be taken to have been revoked as from the time immediately before the end of the parole period. … (5) Where the parole order or licence relating to a person is revoked under subsection (1) or (3), the person becomes liable to serve that part of the sentence or each sentence for a federal offence that the person had not served at the time of his or her release under that order or licence, subject to the operation of subsection 19AA(2) and subject (except in the case of a life sentence) to any further remission or reduction of that sentence. 19AR Fixing of non-parole period etc. where parole or licence automatically revoked (1) Where: (a) a person who is serving or is to serve a federal sentence or federal sentences is released on parole or licence under this Act; and (b) the person is later sentenced to life imprisonment or to a term of imprisonment of, or terms of imprisonment aggregating, more than 3 years in respect of a federal offence or federal offences committed during the parole period or licence period; and (c) under section 19AQ, because of the imposition of the sentence or sentences referred to in paragraph (b) (in this subsection called the new sentence or sentences): (i) the parole order or licence is to be taken to have been revoked; and (ii) the person becomes liable to serve that part of each of the sentences referred to in paragraph (a) (in this subsection called the outstanding sentence or sentences ) that the person had not served at the time of release; the court imposing the new sentence or sentences must fix a single new non-parole period in respect of the new sentence or sentences and the outstanding sentence or sentences having regard to the total period of imprisonment that the person is liable to serve.
Section 19AA relevantly provides: 19AA Remissions and reductions of sentences (1) A law of a State or Territory that provides for the remission or reduction of State or Territory sentences applies in the same way to the remission or reduction of a federal sentence in a prison of that State or Territory. (1A) However, the law does not remit or reduce the non‑parole period or pre‑release period in respect of the federal sentence (except as provided for by subsection (4)). (2) Where a law of a State or Territory provides that a person is to be taken to be serving a State or Territory sentence during the period from the time of release under a parole order or licence (however called) until the parole order or licence is, or is taken to be, revoked, the law: (a) is, for the purposes of subsection (1), to be taken to be providing for the remission or reduction of sentences; and (b) applies to any calculation of the part of a federal sentence remaining to be served at the time of a federal offender's release under a federal parole order or licence as if the sentence were a State or Territory sentence.
The applicant was released to parole in respect of the earlier offence on 30 September 2011.

Submissions

The applicant submitted that s 19AQ is triggered, not by charge, nor conviction, but rather by a new sentence for another offence that was committed during the period on parole of the original federal offence. In that way, s 19AQ was triggered in the present case because the present offence was committed on or before 30 April 2014, being the date the applicant was arrested and charged with the present offence.
Counsel for the applicant before Judge Townsden had submitted that, consistently with the decision of the Victorian Court of Appeal in Khaled Jomaa v The Queen [2014] VSCA 103 at [68], the applicant should have received an additional term of 11 months, which was the unexpired period of the parole at the date of his arrest and charging. The applicant submitted that Judge Townsden was in error in rejecting the approach in Jomaa.
On the present appeal, the applicant submitted that because, under s 19AQ(1), the earlier parole order was taken to have been revoked upon the imposition of the present sentence, sub-s(2) must apply. He submitted that s 19AQ(1) applies only where the total sentence of imprisonment including the parole period has not expired at the time of the new sentencing. The applicant submitted that if s 19AQ(2) is engaged, then sub-s (5) does not apply because the matter does not involve either sub-s (1) or sub-s (3). He submitted that, as a consequence, s 19AR applies only where the sentence of imprisonment has not completely expired at the time of the subsequent sentencing.
In that way, the applicant submitted, no further prison time could be ordered to be served where the parole period had expired some four years before the new sentence was imposed. There was, therefore, no power in the sentencing judge to impose an additional 3.5 year sentence in respect of the earlier offence.
The Crown submitted that it is plain from the language of s 19AQ(5) that upon the revocation of parole in accordance with s 19AQ(1), the offender is liable to serve that part of the sentence that he "had not served at the time of his or her release" to parole, in contradistinction to that part of the sentence that the applicant had not served at the time he or she committed the offence on parole or at the time of his or her arrest for the later offence. The Crown submitted that s 19AR is not confined to any particular subsection of s 19AQ.
The Crown submitted that this approach was consistent with the approach of a number of intermediate appellate courts in Australia such as DPP (Cth) v WJB (2000) 78 SASR 44; Lam v R (2014) 241 A Crim R 562 at [30]; R v Ruha, Ruha and Harris; Ex parte Director of Public Prosecutions (Cth) [2011] 2 Qd R 456 at [43]; R v Piacentino; R v Ahmed (2007) 15 VR 501 at [105] - [106]; and R v Arico (No 2) [2002] VSCA 230 at [9].
The Crown submitted that what the sentencing judge did in the present case was consistent with the approach of the Victorian Court of Appeal in Jomaa.
The Crown submitted that s 19AQ and s 19AR are to be read with s 19APB which relevantly provides: 19APB Effect of parole order and licence on sentence (1) If a parole order is made, or a licence is granted, in relation to a person: (a) the person is taken to be still under sentence and not to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period, until: (i) the parole period or licence period ends without the parole order or licence being revoked; or (ii) the person is otherwise discharged from imprisonment; and (b) the person is taken: (i) to have served the part of any sentence that remained to be served at the beginning of the parole period or licence period; and (ii) to have been discharged from imprisonment; if the parole period or licence period ends without the parole order or licence being revoked. (2) Subsection (1) has effect as if the parole period or the licence period had not ended without the parole order or the licence being revoked, if the parole order or licence is, under subsection 19AQ(2) or (4), taken to have been revoked as from the time just before the end of the parole period or licence period.
The Crown submitted that the effect of s 19APB(1)(a) is that an offender, subject to federal parole, remains liable to serve the entirety of the unserved part of the sentence until such time as the parole period ends without the offender's parole being revoked. But for s 19APB(2), the relevant effect of s 19APB(1)(b) would be that an offender who had committed an offence while subject to federal parole would not be liable to serve any part of the unserved part of the sentence unless he or she had been sentenced to a relevant term of imprisonment for the further offence prior to expiry of the parole period.
The Crown submitted that the result in those circumstances is to modify the operation of s 19APB(1)(b), which would otherwise result in an offender who has breached his or her parole by the commission of a further serious criminal offence avoiding any consequences in respect of that breach simply by reason of the fact that he or she was not sentenced for the further offence until after the expiry of the original parole period. Section 19APB(2) operates in such circumstances to deem that, notwithstanding the parole period had in fact expired prior to the imposition of the sentence that results in the revocation of parole, the person is still liable to serve the entirety of the unserved part of the sentence.

Determination

In WJB Debelle J said: "[9] The prosecution contended that the combined effect of s19AQ(1) and s19AQ(2) was that the parole order should be deemed to have been revoked as from the time immediately before the end of the parole period, thus triggering the operation of s19AQ(5). The sentencing judge rejected that submission, saying that, as s19AQ(5) did not expressly refer to s19AQ(2), the provisions of s19AQ(5) did not apply. For the reasons which follow, the sentencing judge has not correctly applied the provisions of s19AQ. [10] It is a condition of a parole order made under the Crimes Act that the offender must, during the parole period, be of good behaviour and not violate any law: s19AN(1)(a). The sanction to ensure compliance with that condition is found in s19AQ and, in particular, in subs(1) and subs(5). The sanction is that the parole period is automatically revoked by s19AQ(1) if an offence is committed in the parole period and the sentence or sentences total more than three months. S19AQ(5) then provides that, if the parole period is revoked, the offender is liable to serve the whole of that part of the sentence not served when the offender was released on parole. The question in this case is whether s19AQ(5) operates if the parole period has expired at the time of sentencing. That turns on the meaning of s19AQ(2). [11] S19AQ could have been drafted in clearer terms but, when the section is read as a whole and is placed in its statutory context, it is clear that the intention of s19AQ(1) and s19AQ(2) is that where a person is sentenced for an offence committed whilst on parole, the person becomes liable to serve the unexpired portion of the parole period. There are two pre-requisites for the operation of these provisions. The first is that the offence is committed during the parole period. The second is that the sentence for that offending exceeds three months. S19AQ(1) operates in those cases where the parole period is still in force. S19AQ(2) operates in those cases where the parole period has ended. The same reasoning applies mutatis mutandis to subs19AQ(3) and subs19AQ(4). [12] These provisions are necessary because the offending could, of course, occur at any time during the parole period. It may occur at the beginning or towards the end of that period. If it occurred at the end, it might not be possible to deal with the offender before the parole period has expired. S19AQ(2) addresses that particular situation and provides that, if the parole period has expired before the offender is sentenced, the parole order is taken to have been revoked immediately before the end of the parole period. Subs(2) is expressed in terms which make it apparent that it is a deeming provision and, when s19AQ is considered as a whole, it is apparent that its purpose is to be a deeming provision. It does not itself effect the revocation because that is effected by subs(1). Instead, it addresses a particular fact situation and deems the time when the revocation should take effect. That conclusion is reinforced by the fact that subs(2) is expressed in terms which directly refer to "the time of the imposition of the sentence or sentences" referred to in subs(1). [13] When subs(1) and subs(2) of s19AQ are read together, it is apparent that the intent is to ensure that all persons who offend whilst on parole are treated alike to the intent that all must serve that part of the sentence which has not been served when released on parole. If it were not for subs(2), those who had offended during the parole period but who were sentenced when the parole period had expired would be in a more advantageous position than those sentenced when the parole period had not expired. Thus, if a person is released on parole for a period of three years and within those three years commits an offence, the intention is that, subject to the qualifications in s19AQ(5), that person shall be required to serve the whole of that three year parole period notwithstanding that the sentence might have been committed the day following the release on parole or the day before the parole period was due to expire. Any unfairness which might thereby result is capable of being addressed when the non-parole period is fixed pursuant to s19AR. There is a policy reason which reinforces the above conclusion. If s19AQ(2) is not a deeming provision to be read in conjunction with s19AQ(1), persons charged with an offence alleged to have been committed during the parole period would be encouraged to take steps to delay the imposition of a sentence so as to avoid the operation of s19AQ(1). [14] For these reasons, the sentencing judge erred as a matter of law in not giving effect to the combined effect of s19AQ(1), s19AQ(2) and s19AQ(5). It was necessary, in the circumstances of this case, for an order to be made pursuant to s19AQ(5) which in turn refers to s19AA. As already mentioned, the consequences of s19AA are that the respondent was by virtue of s19AQ(5) required to serve a further term of one year five months and 11 days. There is no appeal against the sentence imposed. That sentence should stand and pursuant to of s19AQ(5) the period of one year five months and 11 days remaining to be served must be added to it. It will then be necessary to fix a new non-parole period pursuant to s19AR. As s19AR requires a new non-parole period to be fixed, the Director asked that the matter be remitted to the sentencing judge for that purpose. It is appropriate to adopt that course."
In the same case, Lander J (with whom Prior J agreed) said: "[34] In my opinion if a person breached a parole order in the circumstances envisaged in s19AQ(1) by being sentenced to imprisonment for more than three months in respect of the type of offence mentioned in the sub-section, the parole order is taken to have been revoked "upon the imposition of the sentence or sentences". Subs(1) provides the only circumstances which trigger the revocation of the parole order. [35] Two things are necessary to trigger the revocation of the parole order. First, the parolee must be sentenced to a sentence of imprisonment for more than three months in respect of a federal, State or Territory offence. Secondly, the offence must be committed during the parole period. [36] If both things happen then the parole order is taken to have been revoked at the time of imposition of the sentence or sentences. [37] Subs(2) provides that, if at the time of the imposition of the sentence the parole period has already ended, then the parole order is deemed to be taken to have been revoked as from the time immediately before the end of the parole period. [38] Subs(2) only refers to the circumstances where the imposition of the sentence occurs after the parole period has expired and in those circumstances deems the revocation to have occurred immediately before the end of the parole period. [39] Subs(5) refers only to subs(1) and subs(3), but in my opinion needs only to refer to those subsections, because only subs(1) triggers the revocation of the parole order and only subs(3) triggers the revocation of the licence. Subs(2) can never, by itself, trigger the revocation of the parole order, because it refers to only one aspect of the two elements which need to be satisfied before the parole order is taken to have been revoked. The same is true of subs(4) in respect of the licence. [40] There is no lacuna in my opinion in the legislation. Subs(2) must be read as complimentary (sic) to subs(1) and in those circumstances there needs to be no reference in s19AQ to subs(2). Again the same is true of subs(4) and subs(3). [41] The same result can be arrived at by the following approach. S19AQ(1) operates according to its terms. It operates without any need to refer to the rest of the section if, during the parole period, a person to whom a parole order relates is sentenced to more than three months in respect of the type of offence mentioned in the subsection. In those circumstances the parole order is taken to have been revoked upon the imposition of the sentence. No more is necessary. However if at the time of the imposition of the sentence the parole period has already ended, subs(2) deems the parole order to be taken to have been revoked as from the time immediately before the end of the parole period. [42] That is to treat subs(2) as merely a deeming provision in circumstances where subs(1) operates in its own terms. [43] Upon that construction again subs(5) does not need to refer to subs(2) because it only operates in conjunction with subs(1). [44] It follows that I must respectfully disagree with the sentencing Judge. S19AQ(5) operates in circumstances when at the time of the imposition of the sentence the parole period has already ended. [45] Where the parole order is revoked under subs(1) the person becomes liable to serve that part of the sentence not served at the time of the release under the parole order. On the face of it s19AQ requires a person who has been released under a parole order to serve the whole of the time not served at the time of that release if that person's parole order is revoked under s19AQ."
We accept the Crown's submission regarding s 19APB. If the applicant's submission, that s 19AQ(5) has no operation where the sentencing for the further offence occurs after the expiry of the earlier parole period because that subsection does not refer to s 19AQ(2), is correct, the result would be inconsistent with what s 19APB provides. Section 19APB(2) expressly picks up, relevantly, the circumstances in the present case where the offender is not sentenced until after the earlier parole period has expired. The result is that s 19APB(1) applies, and the offender is taken to be still under sentence and not to have served that part of the sentence that remained to be served at the beginning of the parole period.
However, the Crown's submissions do not take account of the fact that s 19AQ(5) is subject to the operation of s 19AA(2). Section 19AA qualifies the prima facie harshness of s 19AQ(5) by enabling the offender to receive a credit in respect of the period spent on parole up to the date of the commission of the further offence.
The correct approach where the sentencing for the further offence takes place after the expiry of the earlier parole period is described by Mahony DCJ in R v Hughes [2020] NSWDC 98 at [137]-[138] as follows: "[137] The fact that the offences occurred whilst the offender was subject to a federal parole order enlivens s 19APB and s 19AQ of the Crimes Act 1914 (Cth) which deem the person's parole to have been revoked immediately prior to its expiry. Pursuant to s 19AQ(5) of the Act, when a federal parole order is revoked, the person to whom it relates becomes liable to serve that part of the original federal sentence that the person had not served at the time of their release. Notwithstanding that, ss 19AQ(5) and 19AA(2) of the Act afford the person a reduction for what is known as "clean street time", being the days between their release and the date of the earliest offending giving rise to the revocation. [138] I accept the Crown submission, which was not challenged, that the clean street time reduction is calculated by applying the laws of NSW, namely, s 132 and s 171(3) of the Crimes (Administration of Sentences) Act 1999, which deem a person to be serving their sentence during the period between release and the expiry and revocation of the parole order. The offender is therefore liable to serve one year, two months and one day of his original federal sentence made up of the balance of one year and six months parole, less three months and thirty days of "clean street time" from 20 May 2013 to 18 September 2013 inclusive."
That is also the effect of Debelle J's judgment in WJB at [14].
It is not possible to discern from the judgment in Jomaa if the period of one year and three months is a reference to the whole of the parole period in relation to the earlier Commonwealth offence or is a reference to the period from the time of the commission of the later offence to the date on which the parole would have expired, but for the commission of that offence. It is likely that "unexpired period of parole" is a reference to the latter, but without the actual sentence being set out in the judgment there can be no certainty about that.
In the first place, this Court should not depart from a decision of another intermediate appellate court in another jurisdiction on the interpretation of Commonwealth legislation unless it is convinced that the interpretation is plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135]. In our opinion, the construction of ss 19AA, 19AQ and 19AR in WBJ is, with respect, plainly correct.
The construction of those sections set out in WBJ (and in Hughes) is not the approach adopted by the sentencing judge in the present case. His Honour did not consider that s 19AQ(5) was subject to s 19AA(2). In that way, he failed to give credit for what Mahony DCJ referred to as "clean street time". In our view, the proper approach is that offenders against the criminal law of the Commonwealth are entitled to credit for "clean street time" whilst on parole.
The applicant was released to parole on 30 September 2011. His sentence, but for the commission of the present offence, would have expired on 29 March 2015. The present offending commenced on 27 March 2014. His "clean street time" was two years, five months and 27 days. The period he was required to serve by reason of the breach of that parole was 12 months and two days, and not the whole of the parole period earlier imposed of three years and six months.
We would uphold ground 2.

Ground 3: the sentence imposed was manifestly excessive

The result of ground 2 being upheld is that this Court must proceed to re-sentence the applicant. That is because the belief of the learned sentencing judge that the applicant "owed" 3 years 6 months of balance of parole, when in fact there were only 12 months remaining to be served, necessarily calls for substantive re-consideration of the head sentence imposed for this conspiracy. That is not only because the new head sentence was partly cumulative on the balance of parole, but also because the sentencing judge, in accordance with the Commonwealth sentencing regime, imposed a new, single non-parole period that encompassed both bases of incarceration. The error established with regard to calculation of the balance of parole cannot be characterised as a discrete arithmetical error that can be corrected without substantive reflection on re-sentence: see Lehn v R [2016] NSWCCA 255; Obiekwe v R [2018] NSWCCA 55.
That means that ground 3, which asserts that the sentence imposed by the sentencing judge was manifestly excessive, does not require formal determination. We propose to recount concisely the submissions made by both parties with regard to that ground, and to take them into account on the question of re-sentence.

Findings made at first instance, and some supplemental matters

No factual finding or evaluative judgment arrived at by the sentencing judge was impugned on appeal. Nor was any evidence of events since the imposition of sentence placed before us by either party. It is convenient therefore to recount briefly the findings made in the remarks on sentence, supplemented by some additional aspects of the subjective case at first instance, for the purposes of consideration of re-sentence.

Objective features

Judge Townsden recounted that the offence was committed between 27 March 2014 and 30 April 2014, a period of a little over a month.
The offence was committed in its entirety whilst the applicant was detained in an immigration detention centre in a suburb of Sydney. He was arrested on 30 April 2014, after the arrest of Mr Strand as he transited through Sydney Airport on his way from Santiago, Chile to Port Vila, Vanuatu. On that date, the police searched the accommodation of the applicant in the detention centre and found, amongst other things, the four mobile phones.
Contrary to ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth), the offence attracted a maximum penalty of imprisonment for life and a very large fine.
As already noted, the offence related to a combined pure weight of 2.514 kilograms of pure cocaine, the commercial quantity of which is 2 kilograms.
There was evidence that the drug, if successfully imported into this country, would have been worth over $450,000 wholesale (analysis at that level, as opposed to at retail or street level, is favourable to the applicant).
The role of the applicant in the importation, discussed above in the consideration of ground 1, was undoubtedly significant. The failed conspiracy was founded upon the heartless manipulation of an innocent agent, the hapless Mr Strand.

Subjective features

Subjectively, expressions of remorse by the applicant were placed before the sentencing judge. Even so, in light of the plea of not guilty and the failure of the applicant to enter the witness box in the proceedings on sentence, the sentencing judge did not give those expressions great weight.
His Honour was called upon to impose sentence after a trial. Nevertheless, in light of the highly efficient way in which the trial had focused upon a single issue, a discount of 5% was applied to the starting point of the head sentence.
Born in August 1974, the applicant was 39 years of age at the time of the offending in April 2014, was 44 as at the date of imposition of sentence on 22 March 2019, and is now aged 45.
Raised in Nigeria, he was born with hepatitis B. A soccer injury in the same country led to a significant impairment to his vision. When he was a child, the applicant witnessed the violent death of his father. He left school at the age of 11. One can readily infer that his life in West Africa was not an easy one.
The applicant first came to this country, on his own, in the year 2000, when he was in his mid-20s. He commenced to build a new life here: he married for the first time some years ago, and he has three adult children as a result of that earlier union. As at the date of sentence, he maintained a romantic relationship with his second wife, and enjoyed support from her and two further children, despite the fact that by that time, he had been continuously detained or incarcerated for many years.
A very important part of the evidence on sentence was the criminal record of the applicant, along with the intertwined history of his incarceration in prisons and his detention in immigration detention centres. The upshot of it is that, except for a period of some months in 2012 and very early 2013, the applicant has not been at liberty since March 2005, a period of more than 15 years.
Between his arrival in this country in 2000 and 2003, the criminal record of the applicant featured nothing other than driving offences, which can be effectively disregarded on re-sentence. Between 7 and 10 November 2003, however, the applicant aided and abetted the importation of a trafficable quantity of cocaine into this country. He was found guilty of the offence at the conclusion of a trial by jury, and was sentenced by Judge Ainslie-Wallace on 9 March 2007 in the District Court of this State.
The facts shortly stated of that offending are as follows. On 10 November 2003, a woman arrived at Sydney on a flight from Auckland, New Zealand with 1.873 kilograms of cocaine secreted in some children's books. The applicant exercised a deal of control and authority with regard to that criminal venture, in that he had handed the books over to the courier in New Zealand before her departure for Australia, and furthermore had arranged for funds to be available for her air ticket, and either arranged or paid for her accommodation and expenses.
In the event, the applicant was sentenced to a head sentence of imprisonment for 10 years to date from 31 March 2005 and to expire on 30 March 2015, with a non-parole period of 6 years 6 months to expire on 30 September 2011.
As already noted, the applicant was released to parole on the latter date. He was immediately detained, however, and held in a detention centre. He was released from detention on 23 March 2012, some six months later, and gained his permanent residence. In January 2013, however, his visa was cancelled on character grounds, and he was returned to detention.
From then on, he was resisting deportation from Australia. He remained in the detention centre, and was still subject to that status until his arrest for the commission of the conspiracy to import drugs in the first part of 2014. After that, he was taken from the detention centre back to prison, where he has remained ever since. In other words, since March 2005, the applicant has spent merely 10 months living in the Australian community.
Whilst in custody, the applicant was also charged with the offence of recklessly dealing with the proceeds of crime on 21 February 2017, an offence that was committed in late 2013 and early 2014. On 30 October 2018, he was sentenced in the District Court of New South Wales to a head sentence of imprisonment for 1 year and 10 months, backdated to commence on 31 January 2017 and expiring on 30 November 2018, with a non-parole period of 1 year and 4 months concluding on 30 May 2018. (It can be seen that the straightforward step of backdating that sentence to the first date upon which the applicant returned to prison was not adopted, perhaps because the balance of parole was under consideration.)
The remarks on sentence relating to the proceeds offence were before neither Judge Townsden nor this Court. According to the agreed facts pertaining to that offence, which were placed before his Honour, the romantic partner of the applicant had provided $400,000 cash to a female friend. She told her friend that the money belonged to herself and the applicant, "from his dealing in gold and diamonds". In fact, the cash "was the proceeds of a serious indictable offence namely supplying prohibited drugs and that he [the applicant] was reckless as to whether it came from the supply of drugs". Eventually, the enormous sum of cash was allegedly stolen from the premises at which it had been stored for safe keeping.
To conclude this analysis of offences, incarceration, and detention: at the time of the conspiracy in April 2014, the applicant was accordingly still on parole, even though he was not at liberty. Indeed, because the head sentence for the first importation would not expire until March 2015, he was on parole for an offence to do with the importation of a significant quantity of the very same substance, cocaine.
A psychological report was placed before the sentencing judge to the effect that, at the time of the conspiracy, the applicant was suffering from anxiety and depression, chiefly because of his further loss of liberty and fear of deportation. He had also allegedly developed a drug problem whilst in the detention centre. Having said that, it could not be denied that the motivation for the commission of this second effort at importation was simply financial.
The sentencing judge accepted that the quantity of cocaine the subject of the conspiracy was not far beyond the statutory "cut-off point" relating to a commercial quantity of the substance. To be weighed against that was the brazenness of committing an offence of this gravity inside a detention centre; the fact that the applicant was not only on parole but also it was for the same kind of offence; the patently high moral culpability of the applicant; the obviously important role to be played by specific deterrence; and the necessarily guarded finding about the prospects of rehabilitation.

Sentence imposed at first instance

As already noted, the sentencing judge proceeded on the basis that the applicant "owed" 3 years 6 months balance of parole. When imposing sentence, the sentencing judge ordered that that period was to commence on 30 April 2014 and expire on 29 October 2017.
His Honour adopted a starting point for the head sentence for the conspiracy of 14 years 6 months. Applying the 5% discount to that period, one arrives at a little above 13 years 9 months. With some very minor rounding down, that is the head sentence that his Honour imposed.
The new head sentence was expressed to date from 30 April 2016, that being precisely 2 years after the commencement of the balance of parole. The new head sentence of 13 years 9 months is accordingly to expire on 29 January 2030.
In accordance with the Commonwealth sentencing regime, Judge Townsden imposed a single non-parole period that was referable to both the balance of parole and the new head sentence of 13 years 9 months. The length of the single non-parole period is 10 years 6 months. It commenced on 30 April 2014, and is to expire on 29 October 2024.
The complete sentence structure imposed at first instance then is a continuous head sentence of 15 years 9 months, with a single non-parole period of 10 years 6 months.
A diagram attached to this judgment sets out all of the above in readily comprehensible form.

Submissions with regard to manifest excess

The submissions of the parties about the sentence previously imposed are summarised below, not in order to resolve ground 3, but simply so that they can inform the process of re-sentence.

Submissions for the applicant

Counsel for the applicant submitted that, despite the finding that the role of the applicant was at a high level and that he had a previous conviction for drug importation, the sentence imposed was nevertheless manifestly excessive.
It was asserted that the amount imported was just above the commercial threshold, and was therefore objectively at the lowest end of the commercial range.
Counsel relied upon a table of comparative sentences relating to importations of similar quantities of the same drug to demonstrate that the sentence imposed here was unusually long. Conversely, a separate table of cases was relied upon recording similar sentences that had been imposed for offences involving significantly greater quantities, said to demonstrate separately that the sentence imposed upon the applicant was erroneous.
It was further submitted that the period of time that the applicant spent in detention at Villawood whilst on parole should be recognised as time spent in a restrictive and difficult quasi-custodial setting, and should have been taken into consideration. It was conceded that no such submission had been made to the sentencing judge.
Finally, counsel for the applicant contended that there was a real risk that the sentencing judge had placed too much weight on the prior conviction for drug importation of the applicant, and in doing so, imposed a sentence that was wholly disproportionate to the gravity of this offence.
All of those written submissions were emphasised at the hearing before this Court. Counsel also submitted that, even if there had been an oversight by defence counsel appearing on sentence in failing to submit that the period of the time spent in immigration detention should be favourably taken into account, it was incumbent upon the sentencing judge to do so in any event.

Crown submissions

The Crown submitted that, despite the tables of cases proffered by the applicant, the sentence imposed was not outside the range of sentences open to the sentencing judge for a conspiracy pertaining to the importation of this quantity of cocaine, for the following reasons.
While the quantity of a drug sought to be imported and comparative tables of cases are relevant factors in determining sentence, they are not determinative. Rather, all the circumstances, objective and subjective, must be considered.
Once one does so, it was submitted, it is clear that the sentence was appropriate. Indeed, it may be somewhat lenient: this was a serious example of the offence, it required significant planning, the applicant played a principal role, his moral culpability was high, he was on parole at the time of its commission, the offence was motivated by profit, the subjective features of the matter were not compelling, and his criminal history contained a similar serious offence of this kind.
With regard to the period of time spent in immigration detention, the Crown confirmed that such a submission had not been made in written or oral submissions to the sentencing judge. And whether it had been or not, the Crown submitted that the period of detention was not referable to the offence under consideration, and accordingly could not be taken into account pursuant to s 16E of the Crimes Act 1914 (Cth).
At the hearing before us, the Crown largely relied upon its written submissions, save for emphasising that the submissions of the applicant focused too tightly on the quantity of the drug in question.

Determination of re-sentence

As already noted, the ground asserting manifest excess does not require resolution, because re-sentence is necessary in any event. But the alternative sentence that we propose in sentencing afresh demonstrates our rejection of the proposition that the sentence imposed at first instance was beyond the discretion reposed in the sentencing judge.
Exercising the sentencing discretion afresh, and having had the benefit of considering sentencing tables in broadly similar matters placed before the sentencing judge by the Crown, further tables and sentencing statistics placed before his Honour by defence counsel then appearing, and the materials placed before this Court, our approach can be summarised as follows.
We accept that the applicant has not enjoyed a life of privilege or ease. We also accept that the quantity of the drug sought to be imported into this country on this occasion was not, in comparison to some joint criminal enterprises, enormous. We also accept that this offence may have been committed in an attempt to raise funds to avoid deportation from the country in which he had lived for quite some time, and forged significant ties (although some of the intercept material suggests that it was, rather, to raise funds to support a comfortable life upon his return to Africa). Without regarding it as an explicitly mitigating feature, we are also mindful of the simple incontrovertible fact that the applicant has spent over 15 years in a gaol or a detention centre, interrupted only by a period of 10 months.
To be weighed against those factors is the brazen and determined commitment of the applicant - first demonstrated almost 17 years ago - to trying to import significant quantities of prohibited drugs into this country, simply for his own financial gain. Nor can his readiness to commit two serious criminal offences even whilst detained be ignored.
Looking at the matter as a whole, a stern sentence is undoubtedly called for. Unanchored by the sentence imposed at first instance, we would adopt a starting point for the head sentence for the conspiracy of 14 years.
We would replicate the 5% discount granted by the sentencing judge, with the result that the head sentence is reduced (with very slight rounding down) to 13 years 3 months.
It is to be recalled that the outstanding balance of parole is 12 months and 2 days. Subject to the issue raised at the conclusion of this judgment, we would be inclined to replicate the commencement date of 30 April 2014 fixed by the sentencing judge, being the date when the applicant was returned to prison. We would commence the new head sentence six months after the commencement of the balance of parole on 30 April 2014; that is, on 30 October 2014. The new head sentence would therefore expire on 29 January 2028.
Section 19AR of the Crimes Act 1914 requires the Court to fix a single new non-parole period in respect of the new sentence and the outstanding sentence. We would fix a non-parole period of 8 years 6 months, to commence on 30 April 2014 and to expire on 29 October 2022.
We appreciate that this approach means that the sentence imposed for the proceeds of crime offence is effectually wholly concurrent with the periods of imprisonment imposed for the two Commonwealth offences. But that was a leniency originally extended by Judge Townsden, and we are content to replicate it.
Because the alternative sentence at which we have arrived is shorter than that imposed at first instance, it follows that we are persuaded that a lesser sentence is warranted in law, in accordance with s 6(3) of the Criminal Appeal Act 1912 (NSW).

Proposed orders

It remains to address a concern as to the structure of the sentence we propose. Neither party addressed the Court as to the operation of s 19AS(1)(d) of the Crimes Act 1914. That section appears to provide that a person in the position of the appellant (whose parole order has been automatically revoked upon the imposition of a new sentence for a further federal offence committed during the parole period) can only begin to serve the outstanding sentence (the balance of parole) from the day on which the new sentence is imposed. That would produce a curious structure for the sentences in the present case. The appellant has been in custody in relation to the new offence since 30 April 2014. One way or another, the sentences imposed, whether at first instance or by this Court, would ordinarily be backdated to that date.
At first instance, the Crown invited the sentencing judge to backdate the commencement of the balance of parole to the date of arrest and to fix the new sentence to commence upon the expiration of that period. The Crown further submitted that the single non-parole period required to be fixed in accordance with s 19AR(1) should also commence on the date of arrest (POS 14/12/18 p 23.04). In that way, the requirement to serve the outstanding sentence increased the total period of imprisonment to be served, which was presumably the intention of s 19AQ. However, s 19AS(1) appears to require a different structure, namely, that the outstanding sentence not commence until the day on which the new sentence is imposed. In the present case, where the appellant is undoubtedly entitled to have his sentences structured so as to date from the date of his arrest, that would create the curious result that the non-parole period would commence before either of the sentences. We consider, therefore, that the parties should be given the opportunity to file submissions as to the structure of the proposed sentences.
But for the application of s 19AS(1)(d), the order we would have made in the sentence appeal is: 1. Quash the sentence imposed upon the applicant, Dirichukwu Patrick Nweke, by Judge Townsden on 22 March 2019 and in lieu therefor: 1. sentence the applicant to serve the outstanding sentence of 12 months and 2 days to commence on 30 April 2014 and to expire on 1 May 2015. 2. for the offence of conspiring to import a commercial quantity of the border controlled drug cocaine, sentence the applicant to a sentence of imprisonment for 13 years 3 months, to date from 30 October 2014 and to expire on 29 January 2028. 3. fix a single non-parole period of 8 years 6 months, to commence on 30 April 2014 and to expire on 29 October 2022, on which date he will become eligible for release to parole.
A second diagram attached to this judgment sets out the structure of the proposed sentence in readily comprehensible form. However, for the reasons outlined above, it will be necessary to hear from the parties as to whether that structure contravenes the provisions of the Crimes Act 1914.
For those reasons, the Court makes the following orders: 1. Grant leave to appeal against conviction. 2. Dismiss the appeal against conviction. 3. Grant leave to appeal against sentence. 4. Allow the appeal against sentence. 5. Grant leave to the parties to provide supplementary submissions as to the issue raised at [137]-[140] of this judgment within 7 days. 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: 09 July 2020

Principles to be applied

This ground invokes s 6(1) of the Criminal Appeal Act 1912 (NSW), which requires the Court to "allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence." The principles to be applied in determining such a ground are well established. The question the Court must ask itself is "whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63. This requires an independent examination of the whole of the evidence while also having "particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial": M v The Queen at 492, 494; MFA v The Queen (2002) 213 CLR 606 at 621-622 [49]-[51], 623 [56]); [2002] HCA 53; Morris v R (1987) 163 CLR 454; [1987] HCA 50; SKA v R (2011) 243 CLR 400; [2011] HCA 13 at [14].
As recently explained by the High Court in Fennell v The Queen (2019) 373 ALR 433; [2019] HCA 37 at [82], the same principles apply in a circumstantial case: "In an appeal where a ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence, and particularly where the Crown case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole. A circumstantial case cannot be considered in a piecemeal fashion."
The approach to be taken in a circumstantial case was also considered by the High Court in R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35. The Court noted at [50]: "the prosecution's burden requires it to exclude all reasonable hypotheses consistent with innocence". In such a case, it is necessary for the appellate court to consider and weigh the whole of the evidence in order to determine whether there is an inference consistent with innocence that was reasonably open to the jury: Mulholland v R [2019] NSWCCA 257 at [68]; Dickson v R [2017] NSWCCA 78 at [84], considering Baden-Clay at [46]-[48].
The notion of a reasonable hypothesis consistent with innocence was central to the High Court's decision in R v Baden-Clay. The Court said at [47] (citations omitted): "For an inference to be reasonable, it 'must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis in original).
In the present case, the Crown had to establish beyond reasonable doubt the inference that the illegal agreement contemplated that the cocaine found in Mr Strand's luggage as he transferred through Sydney International Airport in transit to Vanuatu would later be brought into Australia from Vanuatu (apparently not by Mr Strand). Trial defence counsel emphasised the need for the Crown to exclude beyond reasonable doubt any reasonable alternative hypothesis as to the fate of the cocaine after it arrived in Vanuatu. The argument on appeal had a different emphasis but it remains necessary for this Court to consider that issue.

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