Okeke v R

LEGISLATION CITED: Crimes Act 1914 (Cth), ss 19AB, 19AB(1)(b) Criminal Code 1995 (Cth), ss 11.1, 307.6, 307.9(1), 400.5

Georgopolous v R [2010] NSWCCA 246 CASES CITED : Nahlous v R [2010] NSWCCA 58 Sivell v R [2009] NSWCCA 286

PARTIES: Ronny Obinna OKEKE - Applicant Regina - Crown

COUNSEL: Ms Nicole Carroll - Applicant Mr Lincoln K Crowley - Crown/Respondent

SOLICITORS: Maria Margaret Sten, George Sten & Co - Applicant John Davidson, Commonwealth Director of Public Prosecutions - Crown/Respondent

• 1 - IN THE COURT OF CRIMINAL APPEAL 2009/5481

SIMPSON J PRICE J HOWIE AJ

Wednesday 1 December 2010 RONNY OBINNA OKEKE v REGINA Judgment 1 SIMPSON J: I agree with Howie AJ. 2 PRICE J: I agree with Howie AJ. 3 HOWIE AJ: This is an application for leave to appeal in respect of sentences imposed in the District Court by Sorby DCJ (the Judge). The applicant pleaded guilty in the Local Court to five offences in breach of Commonwealth law and was committed for sentence to the District Court. He was sentenced on 4 February 2010. 4 The offences for which sentence was imposed are as follows:

Count 1: Between 12 December 2007 and 18 December 2007 did attempt to possess a marketable quantity of a border controlled drug, namely cocaine;

Count 2: Between 20 January 2008 and 31 May 2008 did attempt to possess a marketable quantity of a border controlled drug, namely cocaine and heroin;

Count 3: Between 21 February 2008 and 31 March 2008 did attempt to possess a marketable quantity of a border controlled drug, namely cocaine;

Count 4: Between 31 July 2008 and 1 August 2008 did possess a marketable quantity of a border controlled drug, namely heroin;

Count 5 Between 30 July 2008 and 1 August 2008 did recklessly deal with the proceeds of crime, namely $61,500. 5 Each of the first three counts was an offence contrary to s 307.6 and s 11.1 of the Criminal Code 1995 (Cth). Count four was an offence contrary to s 307.9(1) of the Code. The maximum penalty prescribed for each of these [four] offences was relevantly imprisonment for 25 years. The fifth count was a breach of s 400.5 of the Code. The maximum penalty prescribed for that offence was imprisonment for 7 years. 6 His Honour imposed the following sentences:

His Honour then purported to impose a "parole period" of 2½ years. 7 The period of imprisonment imposed for the five counts in total is to expire on 31 July 2016, the date upon which the applicant would be considered for release to parole. The parole period dated from 1 August 2016 and is to expire on 31 January 2019. It is clear, from what his Honour said, that he intended to sentence the applicant to an overall sentence for all offences made up of a head sentence of 10½ years with a non-parole period of 8 years. However, neither the sentencing regime that applies for State offences nor that for Commonwealth offences would permit the sentencing structure that his Honour adopted. 8 Written submissions placed before the Judge detailed the provisions of the Crimes Act 1914 (Cth) that related to the imposition sentences for Commonwealth offences. They included the following:

Where a person is sentenced in relation to two or more Commonwealth offences, and the sentence is more than 3 years, the Court must fix a single non-parole period: s 19AB(1)(b) 9 Presumably, although his Honour does not say so, each of the sentences imposed for the counts of the indictment was intended to be a non-parole period. Hence they resulted, by partial accumulation, in an overall non-parole period of 8 years. His Honour then imposed a single parole period that appears to have had no relationship with any particular non-parole period. With respect, his Honour clearly misunderstood the import of s 19AB(1)(b). Rather than the imposition of a single parole period, as his Honour imposed, the section requires the imposition of head sentences for each offence and then a single non-parole period relating to the aggregate head sentence. 10 Although the Crown submitted that this Court should re-exercise the sentencing discretion afresh, his Honour's error, that is apparent from the structure of the sentences, was one in the pronouncement of the sentence he intended to impose rather than an error in the determination of the sentence. It is an error that can be corrected by replacing the non-parole periods with appropriate head sentences. The applicant, realistically, does not oppose an increase in the individual sentences, so as to replace the non-parole periods with head sentences, provide that there is, of course, no increase in the overall head sentence. It is clear that, whatever be the outcome of the application for leave to appeal, this Court must re-sentence the applicant in order to make the sentences comply with s 19AB. 11 However, the applicant contends that, apart from the obvious error in the application of the relevant provisions of the Crimes Act, there were errors in the exercise of his Honour's discretion that would lead this Court to re-determine both the appropriate overall sentence to be imposed upon the applicant and the non-parole period. The grounds relied upon in this regard are as follows:

The overall sentence imposed was too severe in all the circumstances of the offences, including that:

b. the subjective circumstances were not given enough weight

c. there was unnecessary accumulation of penalties between related offences, and;

d. the assessment of the objective criminality of the applicant's role was inaccurate. 12 The facts can be briefly stated. Each of the first three counts related to the conduct of the applicant in arranging to receive, or in receiving, packages sent from overseas that he believed contained narcotics. The packages were intercepted by Federal police and the drugs removed. The applicant in most cases used false identities to lease privately owned mailboxes, known as a Keep Me Posted (KMP) boxes, at newsagencies. In some cases the applicant received the packages. In other cases he failed to obtain the packages despite efforts to do so. The three charges involved six packages. 13 The first count related to the applicant's attempt to obtain a package sent from Brazil to a person named Aslem Campbella that contained 80.4 grams of pure cocaine. The estimated street value of the drug was between $15,000 and $25,000. The applicant had leased a KMP box using a fraudulent driver's licence. Despite attempts by the applicant to locate the package through Australia Post, he was unable to do so. When ultimately advised that the parcel was at a particular post office he failed to collect it. 14 The second count related to three packages sent to the applicant under the name of Victor Jackson. The applicant had a fraudulent driver's licence in this name. The applicant had arranged for the packages to be received by a newsagency that leased KMP boxes. The applicant offered to pay the owner of the newsagency for each package received. The first of these packages was an envelope sent from Brazil on 21 January 2008 and which contained a greeting card. It also contained 2 plastic bags in which was a total of 16.4 grams of pure cocaine with a street value between $3,000 and $7,500. The applicant attended the newsagency on 2 March 2008 and collected the envelope. 15 On 21 March 2008 the second package was sent to the applicant from Laos. It contained about 71 grams of heroin with an estimated street value between $17,500 and $30,500. On 20 May 2008 the third parcel was received at Arncliffe Post Office and had been sent from France. The parcel contained 529.5 grams of cocaine with a street value between $73,000 and $101,000. The owner of the newsagency informed police he had given other packages to the applicant. 16 The third count related to two packages sent to the applicant under the name of Campbella Aslem. Again the applicant arranged with a newsagency for the collection of the packages. On 9 March 2008 a package arrived from Brazil. It contained 68.9 grams of pure cocaine with a street value between $17,000 and $31,000. On 6 May 2008 the second package was received at the newsagency from France. It was redirected to a post office because of its size. The applicant enquired at the post office about the package. It contained about 303 grams of pure cocaine with a street value between $75,000 and $136,000. 17 The fourth count concerned the offender collecting a package in Queensland. The applicant drove with his wife to Brisbane and obtained the package from persons staying at a motel. During the course of his return to Sydney police stopped his vehicle. A search revealed a red backpack hidden in the tyre well of the boot. It contained pellets that were made up of 473 grams of pure heroin. The estimated street value of the drug was between $121,680 and $162,240. There were also located three mobile phones, $800 in cash and six bundles of keys. The applicant said that he had been paid $800 to bring the package to Sydney. He denied owning the keys. 18 The fifth count related to $61,150 in cash located in a search of the applicant's premises. There were also found seven mobile phones and numerous money transfer documents. Analysis of the mobile phones SIM cards revealed that the applicant had been in frequent contact with persons in Nigeria, Brazil, Ghana and Suriname. It was believed that the two persons, from whom the applicant received drugs in Queensland, were Malaysian nationals who had imported the drugs into Australia. There were documents indicating that the applicant had transferred money overseas in various names. Amongst the keys found in the applicant's vehicle were 11 keys for KMP boxes at six newsagencies. 19 It should be noted that the marketable quantity prescribed for both heroin and cocaine is 2 grams. The amount of pure drug involved in each count was as follows: count 1 - 80.4 grams; count 2 - 617.2 grams; count 3 - 372.2 grams; count 4 - 473.2 grams. The total amount of drugs that the applicant attempted to take into his possession was just over 1,500 grams. The commercial quantity for these drugs is 2 kilograms. By reference to the amount of pure drug alone, the applicant's involvement in the trafficking of drugs was substantial. Further, the activity covered by the charges spread over a period of about 7 months and involved him travelling interstate. There was a degree of planning, although not of a sophisticated nature. 20 The applicant is a New Zealand national but with permanent residency status in Australia. He was born on 25 November 1963 in Nigeria. A pre-sentence report was in evidence. The applicant reported a difficult and impoverished life in Nigeria until at the age of 14 he went to live with a cousin. He was then educated to the standard of obtaining a Diploma in Business Administration. He worked in his cousin's business until the applicant immigrated to New Zealand in 1991 at the age of 28 years. There he was self-employed in the building industry. He came to Australia in 2001. He is married and has a daughter aged 9. The applicant was not initially honest with the writer of the report claiming that the child was born of the marriage in Australia. Further investigation indicated that the child was not his wife's and had been living in America with his sister since 2008. 21 The probation service had been unable to make contact with the applicant's wife despite repeated attempts to do so. The applicant could not initially explain this failure. However, again the applicant was not honest with the writer of the report in relation to his wife's situation. Contrary to what he said initially, the applicant later admitted that his wife was working and attending school. The applicant also appears not to have been completely frank about his employment situation before being incarcerated for these offences. 22 The applicant suffers from an enlarged heart. He told the writer of the report that the condition was fatal and he was likely to die "at any moment". However, the condition was not so serious and was treatable. The applicant is medicated in the gaol for both the heart condition and depression. He also said that he had drunk alcohol to excess and used cocaine since losing employment because of his heart condition. The probation officer reported that there was no record in the gaol files to support the applicant's claim of a serious cocaine addiction. He had not sought treatment or counselling in this regard since being incarcerated. 23 The applicant claimed that he committed the offences to obtain money to pay for his use of drugs. The report states the applicant asserted that of the $60,000 found by police, half of it belonged to a close friend whom he could not name. He said $8,000 belonged to his brother-in-law and the balance of $22,000 was his legitimate savings. He denied using false driver's licences and, to the extent he was willing to discuss the offending with the writer of the report, he attempted to minimise his involvement. 24 A report from Justice Health indicated that the applicant had "quite severe cardiac disease". However, he was relatively stable under treatment but suffered occasional chest pains. 25 There was a psychological report in evidence. The psychologist concluded that the applicant suffered from Post-traumatic Stress Disorder arising from head injuries suffered in an assault in 2004, a major depressive disorder, a generalised anxiety disorder and substance abuse at the time of the offending. The psychologist formed the view that, as a result of his mental conditions, the applicant had impaired judgment evidenced by his lack of regard for the consequences of his criminal conduct. Contrary to the opinion formed by the probation officer, the psychologist concluded that the applicant was remorseful. 26 There was a report from a cardiologist. He concluded that the applicant's risk of sudden death as a result of his heart disease was "in the order of 1% per annum". He noted there had been no change in his condition over the last 8 years. He concluded that the applicant "should avoid any strenuous activity and try and maintain good hydration at all times". He thought his prognosis was good. 27 The applicant gave evidence before his Honour. He claimed to suffer from persistent headaches as a result of the assault in 2004. However, he had continued in employment until he lost his job in 2005 because of his heart condition. It was then he commenced using drugs to take his mind off his headaches and family problems. He claimed that in the course of his offending he was taking instructions from people to whom he owed a debt arising from his drug use. During the course of his evidence he sought to dispute the statement of facts that had been previously tendered without objection. His counsel had to seek an adjournment to obtain instructions from the applicant. When he returned to the witness box, the applicant continued to minimise his involvement in the trafficking of drugs despite the facts tendered to the court. He stated, contrary to what was in the pre-sentence report, that the money located by police did not belong to him. 28 I will deal with the particular complaints contained in the second ground of appeal in reverse order. It is asserted that the judge erred in an assessment of the objective seriousness of the applicant's offences. Complaint is made about the following passage of the sentencing remarks:

It was submitted on behalf the offender that the offender was merely a conduit through which the drugs were intended to be brought into the country. In relation to the heroin offence, it was submitted that the offender's role was only to assist taking possession of the drugs landed in Brisbane and then to act under the direction of a person higher up in the chain.

There is no evidence that the offender was under directions from anybody higher up in the chain of importing. The offender was in regular phone contact with overseas persons as revealed by the analysis of the SIM cards in his possession. In my opinion, the offender's role, the amount of drugs, cocaine totalling 697.2 grams pure and heroin 473.2 grams, and a significant amount of money together with the lengths to which he went to try and secure the packages and therefore the drugs over a period of some six months bring these offences above the mid range of objective seriousness for these type of offences. 29 It was argued on the applicant's behalf that the finding that there was no evidence that the applicant was under the direction "from anyone higher up in the chain of importing" was contrary to the applicant's evidence that he was taking instructions from persons to whom he owed drug debts. In my opinion his Honour was entitled to reject any account the applicant gave of his involvement in the offending. He was clearly dishonest in that regard and was trying to minimise his role, just as he had with the probation officer. 30 In my opinion, in the passage quoted above, the Judge was simply indicating that he did not accept that the applicant was no more than a courier who was doing as he was instructed without any planning on his part. The evidence overwhelmingly supported that finding. Contrary to submissions made to this Court, I do not believe that his Honour was indicating that the applicant had been involved in the importation of drugs. He was merely commenting upon the fact that, whatever instructions the applicant was receiving, they were coming from the importers of the drugs. The applicant's role was clearly to receive the drugs from the importers, including the persons in Queensland, and was then involved in distributing them in some way. 31 Further, he was receiving some of the profits from the distribution of the drugs and sending them back to the importers. Regardless of what evidence or account the applicant gave about the money located by police, the plea acknowledged that he was involved in dealing with over $50,000. The inference is clear that he was involved in sending money out of the country and ultimately that is what he would have done with the bulk of the money found in his possession. 32 It was argued that his Honour erred in his assessment of the objective seriousness of the offending. However, this is yet another case where a sentencing judge has unnecessarily embarked upon an analysis of the objective seriousness of the offences to the degree required for a standard non-parole period case governed by State legislation; see Sivell v R [2009] NSWCCA 286; Georgopolous v R [2010] NSWCCA 246. Not only was this not a standard non-parole period case, it was an exercise in sentencing for Commonwealth offences where the standard non-parole period had no relevance whatsoever. It was enough for his Honour to determine that, having regard to the factors he mentioned, it was an objectively serious example of such offending notwithstanding the applicant's subjective circumstances. The submission by the applicant that the "offending behaviour should have been determined to be something around the middle of the range or just below" should be rejected because such a finding was unnecessary. 33 Next it was submitted that there was "unnecessary accumulation of penalties between related offences". The complaint was centred upon the degree of accumulation between the 4th and 5th counts. Reliance was placed upon the applicant's assertion that the money was not his. This submission is misconceived. As has already been noted, the plea to count 5 accepted that he was involved in "money-laundering" of at least $50,000 and the overwhelming inference is that he was involved in transferring money overseas. 34 Although the charge was related to his drug activity, it could not have been said to be the proceeds of any particular charge or charges. It certainly was not the proceeds of the fourth count because those drugs were found and confiscated by police. There was a strong suggestion that the applicant had been involved in receiving other drug imports. Even though he could not be sentenced on that basis for the possession offences, the inference was that the money was the proceeds of drug sales and that he was intending to send it overseas. An effective sentence of 12 months for that offence, as against a maximum penalty of 7 years, could not be said to be manifestly excessive. 35 In any event, the sentences for the second and third counts were made completely concurrent. There was no reason in fact or principle for concurrent sentences for those separate and distinct criminal activities. The second count was the most serious of the offences because of the number of packages and the amount of drug involved. The real issue is whether the overall sentence was too severe. 36 The applicant's counsel took the Court to statistical information from the Judicial Commission and a number of decisions of this Court. None of this information seems to me to assist the applicant. In most of the cases referred to there was significantly less drug involved and not as many acts of criminality as in the case of the applicant. What they indicate to me is that the applicant's level of criminality was high when compared to the persons to which those cases related. 37 Next it is contended that the Judge failed to give sufficient weight to the subjective factors, and in particular the applicant's poor health. It was submitted that "any prisoner suffering as the offender currently is, will undoubtedly endure a more difficult and onerous time in custody". There is not the slightest evidence to support that contention. The only consequence of the applicant's heart condition was that he should avoid strenuous activity and should maintain his hydration at all times. There is no suggestion that the applicant's mental state impacted significantly upon his custodial situation. I am unpersuaded that the total sentence is excessive whatever discount was allowed for the facilitation of the course of justice. The Crown case was overwhelming. 38 Finally, it is submitted that the relationship between the overall non-parole period and the overall sentence, being 76.2 per cent, is excessive. There is no reason in the present case for a departure from the normal range of the non-parole period for Commonwealth sentences to the detriment of the applicant. The Crown conceded that the non-parole period should be varied. In my opinion the non-parole period should be 65 per cent of the overall sentence. 39 With respect, there is a very significant degree of arbitrariness about the individual sentences imposed. For example, I do not understand why the sentence for the fourth count should be 25 per cent greater than for the second count or why the sentences for the second and third counts are wholly concurrent. I cannot understand what head sentence his Honour had in mind for count 4 to result in a non-parole period of 6½ years. There is no indication of the discount allowed for the pleas of guilty and it is difficult to identify it from the sentences imposed. Therefore, there is a degree of artificiality in attempting to re-construct the sentences in order to comply with s 19AB and to reflect the relative seriousness of the individual offences but arriving at an overall head sentence of 10½ years. 40 My intention is to impose an overall sentence of 10½ years to date from 1 August 2008 and to expire on 31 January 2019. There is to be a non-parole period of 6 years 10 months to expire on 31 May 2015 the date upon which the applicant will be eligible to be released to parole. 41 I propose the following orders:

1. Application for leave is granted and the appeal allowed.

2. The sentences imposed in the District Court are quashed.

3. In lieu the applicant is sentenced as follows Count 1: a term of imprisonment of 2 years that commenced on 1 August 2009 and expires on 31 July 2011; Count 2: a term of imprisonment of 7 years that commenced on 1 August 2010 and expires on 31 July 2017; Count 3: a term of imprisonment of 4 years 6 months that commences on 1 August 2010 and expires on 28 February 2015; Count 4: a term of imprisonment of 6 years 6 months that commences on 1 August 2012 and expires on 31 January 2019; Count 5: a term of imprisonment of 18 months that commenced on 1 August 2008 and expired on 28 February 2010;

In relation to those sentences there is a non-parole period of 6 years 10 months that commenced on 1 August 2008 and that expires on 31 May 2015. **********

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.