Court of Appeal (ACT)|2014-08-11|Before: Refshauge J, Ross J and Walmsley AJ

Ojielumhen v R [2014] ACTCA 28 (11 August 2014)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The sentence imposed on Osaro Ojielumhen on 30 October 2013 be set aside.

(i) For the offence of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to s 11.1 and s 307.9(1) of the Criminal Code a sentence of five years' imprisonment with a non parole period of two and a half years.

(ii) Taking into account the prior period in custody the sentence will commence on 27 January 2013. The sentence will end on 26 January 2018 and the non parole period will end on 26 July 2015.

APPEAL - GENERAL PRINCIPLES - sentence manifestly excessive - possession of a marketable quantity of unlawfully imported border controlled drug - numerical sentence range proffered by counsel - Crown nominated sentence - discretion miscarried - appeal upheld - re-sentenced

Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323

Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372

R v MacNeil Brown [2008] VSCA 190; (2008) 20 VR 677

R v Lopez-Alonso (1996) 86 A Crim R 270

R v Salgado-Silva (2001) 126 A Crim R1

Wong v R [2001] HCA 64; (2001) 207 CLR 584 at 610

Commonwealth Director of Public Prosecutions (Respondent)

I have had the advantage of reading in draft the reasons of Ross J. I agree with those reasons and the orders he proposes.

2. On 14 June 2013 Osaro Ojielumhen pleaded guilty to one count of attempting to possess a marketable quantity of an unlawfully imported border controlled drug contrary to ss 11.1 and 307.6(1) of the Criminal Code (Cth). On 30 October 2013 the appellant was sentenced by Neild AJ to six years' imprisonment with a non parole period of four years. This is an appeal by Mr Ojielumhen against the sentence imposed by his Honour.

3. The circumstances of the offending are not in dispute. On 4 March 2011 a package said to contain a DVD player arrived in Australia from Thailand. The package was addressed to Fred Manyathale of Higgins ACT. The package was inspected by customs officers and found to contain a white powdery substance that returned a positive test when subjected to a presumptive test for cocaine.

4. The white powder was later found to weigh 325.1 grams. A sample of the powder was analysed by the Australian Forensic Drug Laboratory and was found to contain cocaine of 60.4% purity. The total weight of pure cocaine removed from the package was 196.3 grams. A marketable quantity of cocaine, for the purposes of the Criminal Code (Cth), is 2.0 grams.

5. The police substituted an inert substance for the cocaine, obtained a controlled operations certificate and arranged to deliver the package to the Higgins address. On 8 March 2011, a police officer posing as an Australia Post courier left a parcel collection card at the Higgins address, which informed the consignee that the parcel could be collected from the Kippax post office.

6. Later on 8 March 2011 police observed the appellant and a co-offender going to the Kippax post office. The co-offender collected the package after presenting photographic identification in the name of Lenin Manyathala.

7. The police followed the appellant and the co-offender to a house in Hughes. The appellant and the co-offender went into the house with the package and had a lawfully intercepted conversation which included the following exchange:

Male 1 said: "This is good quality. We need to sell this at a good price. This is ah 300 grams or even less maybe ... What did they tell you to expect? What did they say? How many grams ... ?"

Male 2 said: "around 250".

Male 1 said: "You recording it? You can send them a video".

8. Police entered the premises and found the appellant and the co-offender, the cardboard box and package wrappings and the DVD player, which had been unscrewed to show a black plastic package that contained the inert substance. Both the appellant's and the co-offender's fingerprints were subsequently located on the interior of the dismantled DVD player.

9. On 7 June 2013 Nield AJ gave judgement on a pre-trial application allowing the search warrant evidence to be admitted into evidence in the trial listed to commence on 17 June 2013. On 14 June 2013 the appellant was re arraigned and entered a plea of guilty.

10. In the sentencing hearing before Neild AJ the appellant's counsel proffered a numerical sentencing range. Counsel for the appellant tendered an extract from the NSW Judicial Information Research Systems (JIRS)[1] showing the head sentence and non parole period imposed in six cases of possessing a marketable quantity of cocaine contrary to s 307.6(1) of the Criminal Code (Cth). Counsel submitted that the sentencing outcomes for such an offence "falls within the range of 54 months to seven years on the top and from 30 months to 48 months on the bottom".[2]

11. The context in which this submission was made is important. The submission was preceded by counsel for the appellant referring to the prospect of the Crown submitting that the appellant had a vested commercial interest in the sale of the cocaine. The appellant's counsel then says:

... we will submit that there seems to be a range of outcomes for offences of this type that arise both from the authorities that the Crown's identified and from the statistics from JIRS in New South Wales in relation to what the sentencing range is. Now, what the significance of what the Crown seeks to attest is that - that has the potential at least - to enable the Crown to make a submission, well, they're not the range. That's the range over there. Now, whether or not the Crown does that ultimately is a matter for the Crown but it puts us in the obviously difficult position as the counsel for the accused to counter that possibility.[3]

12. Then, after the proffering of the numerical sentencing range, the following exchange took place between counsel for the appellant, his Honour and the Crown:

Appellant's counsel: Now, if your Honour was minded to indicate that whatever approach your Honour took to it that that was the range in which you were going to exercise your discretion then I would seek instructions from client not to press ahead with the excursion that at the moment seems necessary.

His Honour: Well, it's more, I think a question for the Crown as to whether the Crown is going to press for a sentence beyond what JIRS, in a mere six cases has commented upon ...

Appellant's counsel: The authorities that the Crown have otherwise provided to you - and I think they are with you.

His Honour: Yes I have them.

Appellant's counsel: ... don't, in our submission, suggest any departure from that outcome at all. There's some cases there dealing with much longer amounts and people with long histories or priors and so on. But looking at likes cases and outcomes, with respect, seems to be much the same. Now, if the Crown is pushing for an outcome beyond that range then I'll take instructions but if they're not I'll also take instructions.

His Honour: Madam Crown?

Crown: Your Honour, on the comparative sentences would provide you with, in our submissions, it would appear that on a plea of guilty seven years is within the appropriate range for this quantity of cocaine and the ...

His Honour: And you would not be asking for anything more?

Crown: That's within range, your Honour. We wouldn't be asking for anything more.

His Honour: Well, there you are Mr Archer. Does that satisfy you?

Crown: That's on a plea of guilty your Honour, and ...

His Honour: Yes, I appreciate that.[4]

13. Following this exchange the appellant's counsel stated that he would not be seeking an adjournment and the hearing proceeded.

14. The proffering of a numerical sentencing range - as occurred in this case - is a practice which the High Court has subsequently said is wrong in principle and should cease: Barbaro v The Queen; Zirilli v The Queen ("Barbaro").[5]

15. Barbaro was an appeal from sentences imposed for serious drug offences. The appeal was argued on the basis that the sentences were not manifestly excessive and that the sentencing judge made no factual or legal error in fixing the sentences imposed. Rather, the appellants submitted that the sentencing hearing was unfair because the sentencing judge said at the outset that she did not seek, and would not receive, any submissions from the prosecution about what range of sentences she could impose on each appellant. The appellants submitted that in adopting this course the sentencing judge precluded herself from taking into account a consideration relevant to sentencing.

16. By way of background in R v MacNeil-Brown[6] the majority of the Victorian Court of Appeal held that "the making of submissions on sentencing range is an aspect of the duty of the prosecutor to assist the court".[7] Accordingly, a sentencing judge could reasonably expect the prosecutor to make a submission on sentencing range if either "the court requests such assistance" or,"even though no such request has been made, the prosecutor perceives a significant risk that the court will fall into error regarding the applicable range unless such a submission is made".[8] The majority in MacNeil-Brown held in respect of the first appellant in that case that the sentencing judge had not erred in insisting that counsel for the prosecution state the range within which the sentence to be imposed on the offender should fall. The offender's appeal against sentence was dismissed.[9]

17. As a result of what was said by the majority in MacNeil-Brown a practice had developed in Victoria of a sentencing judge asking counsel for the prosecution to make a submission as to the "available range" of sentences.

18. In the course of their judgment the plurality in Barbaro (French CJ, Hayne, Kiefel and Bell JJ) said that the practice to which MacNeil-Brown has given rise 'should cease' and was "wrong in principle". Their Honours went on to state:

It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.

Once it is understood that a submission by the prosecution about the bounds of the available range of sentences is no more than a statement of opinion, it follows that the sentencing judge need not, and should not, take it into account in fixing the sentences to be imposed.[10]

19. In the present matter the appellant's counsel proffered a sentencing range of between four and a half to seven years as a head sentence with a non parole period of between two and a half and four years. Counsel then asked his Honour if he "was minded to indicate ... that that was in the range in which [he] was going to exercise [his] discretion". His Honour replied that it was a question for the Crown as to whether the Crown was going to press for a sentence beyond the range proffered by the appellant's counsel. The Crown responded by nominating seven years on a plea of guilty as the appropriate head sentence and submitted that such a sentence was "within the appropriate range".

20. Two observations can be made about what occurred in the proceedings at first instance.

21. The first is that the Crown did not proffer a numerical sentencing range but rather took the unusual step of nominating a particular head sentence - seven years on a guilty plea - as the appropriate sentence to be imposed in this case. It is clear from the passage from Barbaro set out above that the plurality's observations applied to the Crown proffering a statement as to the specific result which should be reached in the case (as occurred here) as well as where the Crown proffered a range within which the offender should be sentenced.

22. The second point is that the head sentence ultimately imposed by his Honour was in accordance with the Crown's submission.

23. As mentioned earlier, his Honour sentenced the appellant to six years' imprisonment with a non parole period of four years. The head sentence of six years reflected a 10% discount on account of the guilty plea and a further 15% discount for the assistance the appellant provided to the authorities. It follows that but for the assistance provided to the authorities his Honour would have sentenced the appellant to seven years' imprisonment. This is significant because that was the actual sentence nominated by the Crown, that is, seven years' imprisonment on a plea of guilty.

24. On appeal the Crown submitted that despite the fact that a particular sentence was nominated in the proceedings at first instance it did not necessarily follow that his Honour failed to instinctively synthesise the material before him in a proper exercise of his sentencing discretion. In particular the Crown submitted that:

His Honour's remarks on sentence show he determined the appellant's sentence after properly considering and synthesising the applicable sentencing principles. His Honour did not determine the appellant's sentence by reference to an opinion expressed by counsel Rather, the sentencing remarks reveal his Honour reached a sentence to be imposed on the appellant as a result of the proper exercise of his sentencing discretion.

25. I am not persuaded by the Crown's primary submission on the appeal.

26. The imposition of a head sentence in accordance with the Crown's submissions as to what constituted an appropriate sentence leads irresistibly to the conclusion that the sentencing judge took the Crown submission into account. As the plurality observed in Barbaro:

If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution view of what punishment should be imposed.[11]

27. The above observation may be said to apply with even more force in circumstances where the Crown has proffered a statement as to the specific sentence which ought to be imposed and the sentence ultimately imposed was in accordance with that submission.

28. I am satisfied that the sentencing judge had regard to an irrelevant consideration, namely the Crown's submission as to the appropriate head sentence. As a consequence of this error the sentencing discretion is reopened.

29. If the Court was not persuaded by the Crown's primary submission and concluded that the sentencing discretion should be reopened the Crown submitted that 'a consideration of the relevant sentencing principles, in conjunction with the unifying principles disclosed by the yardstick of comparative sentences, demonstrates that no change to the appellant's sentence would be warranted'. For the reasons which follow I am not persuaded that the same sentence should be imposed.

30. As the appellant has committed a federal offence he is required to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth).[12] Section 16A(1) of Part 1B provides that the court must impose a sentence 'that is of a severity appropriate in all the circumstances of the offence'. Read in isolation s.16A(1) might be read as directing sentencing judges to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or the offender's prior criminal history. But as the plurality (Gaudron, Gummow and Hayne JJ) said in Wong[13]

... s 16A(1) does not stand alone. To the extent that the matters identified in s 16A(2) are relevant and known to the court, the sentence must take them into account.

31. The matters listed in s 16A(2) are quite diverse and include "the nature and circumstances of the offence" (s 16A(2)(a)); the degree to which the offender has shown contrition (s 16A(2)(f)); the offender's "character, antecedents, cultural background, age, means and physical or mental condition' (s 16A(2)(m); and "the need to ensure that the person is adequately punished for the offence" (s 16A(2)(k)).

32. In Wong the plurality identified features of the offence of being knowingly concerned in the importation of heroin which could properly be taken into account in sentencing:

... the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that the deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of the drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation. All these matters properly to be taken into account in determining a sentence.[14]

33. While these observations were made in relation to the importation of heroin they apply with equal force to the offence committed by the appellant.

34. At the time of the offending the maximum penalties for this offence were twenty-five years' imprisonment, a fine of 5000 penalty units, or both. As the plurality stated in Markarian v The Queen:

careful attention to maximum penalties will almost always be required, first because the Legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.[15]

35. The maximum penalty indicates that this is objectively a very serious offence.

36. It appears from the material put in the proceedings at first instance that the appellant's role was to collect the parcel containing the cocaine from the post office and then provide it to another party. The appellant was to receive a payment of $1500 for undertaking this task.

37. The quantity of the cocaine involved, 196.3 grams, while significantly above the threshold for a "marketable quantity", was well below the 2kg threshold of a commercial quantity. In the course of oral argument in the appeal proceedings the Crown acknowledged that the quantity involved was towards the bottom of the range for this type of offending.

38. The appellant was aged thirty-six years six months when he committed the offence and is now almost forty years of age. The appellant is a well educated man with no prior convictions, he has an unblemished character. I note the authorities to the effect that good character carries less weight in crimes involving drug importation in circumstances where persons with clear records are selected so as not to attract suspicion.[16] But there is no evidence in the present case to suggest that the appellant was selected for the role he undertook because he had no antecedents.

39. While on remand the appellant was a compliant prisoner with no disciplinary issues and while on bail he was compliant with supervision. As noted in the Pre-Sentence Report: "He attended all appointments as directed, without complaint".

40. The appellant's behaviour on bail/remand; his stable upbringing; education and employment history all suggest that he has a very good prospect of rehabilitation.

41. I note that the appellant pleaded guilty, albeit that it was not an early plea, and that he has provided additional assistance to the police. I have taken these matters into account in determining the appropriate sentence.

42. In all the circumstances I am satisfied - as required by s 17A of the Crimes Act 1914 (Cth) - that the only appropriate sentence is one of imprisonment.

43. Balancing all the relevant considerations I would impose a sentence of five years' imprisonment. I would fix a non parole period of two and a half years, as that is the minimum time that justice requires the appellant to serve, having regard to all of the circumstances. Taking into account the prior period in custody the sentence will commence on 27 January 2013.

44. I agree with Ross J's reasons and the orders he proposes.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

[10][2014] HCA 2; (2014) 305 ALR 323 at 331 at [39] and 333; [49].

[12] Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 527-530.

[16] See R v Lopez-Alonso (1996) 86 A Crim R 270.

Ojielumhen v R [2014] ACTCA 28

At a glance

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Judgment (81 paragraphs)

Ojielumhen v R [2014] ACTCA 28 (11 August 2014)

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Cases Cited (5)