R v Basri, Okonkwo and Madubuko

District Court of NSW|2009-10-16

CITATION: R v Basri, Okonkwo and Madubuko [2009] NSWDC 398

Saripah Zamrut Binti Syed Basr: Import commercial quantity of border controlled drug: Sentenced to 5 years and 3 months imprisonment to date from the 25th February 2008 and expiring on the 24th May 2013. Non-parole period of 3 years and 3 months to expire on the 24th May 2011. Ifeanyi Fidel Okonkwo: DECISION: Possess commercial quantity unlawful import border controlled drug: Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012. Henry Ugo Madubuko: Possess commercial quantity unlawful import border controlled drug: Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012.

Evidence Act 1995 LEGISLATION CITED: Crimes Act 1914 (Cwh) Criminal Code Act 1995

R v Filippetti 13 A Crim R 335 R v Taha, unreported NSW CCA 18.2.1990 Pang (1999) 105 A Crim R 474 CASES CITED: R v Hashmi, unreported NSW CCA 13.8.1999 R v Ghale, unreported, NSW CCA 7.7.2000 R v Chua, unreported, NSW CCA 2.3.2001 Markar [2000] NSWCCA 72

Regina PARTIES: Saripah Zamrut Binti Syed Basri Ifeanyi Fidel Okonkwo Henry Ugo Madubuko

FILE NUMBER(S): 2008/8060; 2008/9319; 2008/8434

Crown: D Jordan COUNSEL: Defence for Basri: S Russell Defence for Okonkwo: C Watson Defence for Madubuko: B Glennon

Saripah Syed Basri, (Ms Basri), is charged with importing a commercial quantity of a border control drug namely heroin into Australia on 25 February 2008. Henry Ugo Madubuko, Ifeanyi Okonkwo are each charged with attempting on 25 February 2008 to possess a commercial quantity of heroin unlawfully imported by Ms Basri.

All three were tried by a jury in a trial running from 8 October 2008 to 4 November 2008. The jury found each guilty on 4 November 2008. There is an unfortunate delay of nearly one year between verdict and sentence. Hearing on sentence had been scheduled during this time and I was desirous of dealing with the three offenders together. For one reason or another the hearings had to be adjourned consequently the setting of dates required accommodation for four counsel and the trial judge.

As sentencing judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentences for these offences before this court, committed by these offenders. My initial task requires an assessment of the objective criminality of the offences before the court. I will also need to have regard to matters personal to each offender called subjective matters. The starting point requires the sentencing judge to make findings of fact from the evidence before the court relating to the offence and to the offender.

My fact-finding task necessarily requires me to find facts consistent with and reflective of the jury's verdicts. There is no obligation to find facts at either extreme of favourability or un-favourability to the accused. Thus in determining the facts of the case I am mindful of the jury's verdict and the evidence before the court upon which those verdicts were determined. None of the offenders gave evidence before the jury thus the facts to be found against each offender will necessarily be found from material in the Crown case against each accused.

My own view of the appropriate findings of fact from the evidence properly before the jury will be my guideline or my guide to the facts that I determine.

Facts 6. The heroin imported into Australia by Ms Basri was packaged and concealed in a suitcase and trusted to her care in India by an Indian based drug syndicate. Ms Basri was recruited from Malaysia. She stayed some eleven days in India with a lady by the name of Gina and her boyfriend Johnnie both of whom would appear to be members of an Indian based drug syndicate. Johnnie is Nigerian. They were based in Delhi in India. Ms Basri's ticket to India had been obtained by services of a middle man, she travelled to Delhi on 14 February departing there on 24 February. During her stay in India most if not all was spent in contact with Gina and Johnnie. An Australian visa was issued to her twelve days before she came to Australia. It is difficult to imagine the visa could have been obtained without access to her passport and signature. There is certainly no evidence before me suggesting she did not participate in obtaining the Australian visa.

The account given in her interview seeks to establish her trip to Delhi was for the purpose of joining a business where she would take Sari material and Punjabi suits to Malaysia where Gina's cousin would distribute them. It was only after some days she was asked if she would deliver, she says, sari's to Gina's brother in Australia. In either case it is not explained in the evidence why the saris could not have been packaged and freighted to the relevant destination at a fraction the cost. She was to remain in Australia she was told for two or three days and then return to Malaysia.

This account in her interview must have been rejected by the jury, it is not difficult to see why. Her Australian visa was issued within a short time of her arrival in Delhi. Further, the account in the interview does not see the offender with any work to do in Malaysia with Punjabi suits or saris once the delivery to Australia has been completed. The significance of this is she does not appear on her account to have complained to Gina about her lost opportunity to work for Gina in Malaysia which was the whole purpose of her trip to India. She told Probation and Parole she was motivated to travel to India by the lure or promise of $4,000 Malay per week. That promise does not seem to be the subject of any subsequent challenge by her or substituted promise by them for going to Australia and losing access to the Malay business, apparently.

Further I have assumed she was on a tourist visa. If so would not that require an ongoing destination from Australia; that destination could have easily been Malay or return to India. The evidence disclosed it was a return to India. The giving US of a $1,000 for purchasing a one way ticket in Australia appears an absolute waste of money when the ongoing ticket to Malaysia could have been purchased in India for less, that is from Sydney to Malaysia purchased in India.

I am satisfied Ms Basri well knew she was couriering illicit contraband into Australia. The identity of the contraband as heroin may not have been made clear to her. I accept she checked the relevant luggage before she left India. I find that she knew there was substance concealed in the lining and sari's within the suitcase as providing a plausible excuse for her bringing the bag into Australia. I am, as was the jury, satisfied beyond reasonable doubt her importing of an unspecified substance was intentional. I am also satisfied, as was the jury, that she was aware of a substantial risk that the substance was a border control drug and having regard to the circumstances as she knew them to be it was unjustifiable for her to take that risk.

I am fortified in that finding by her travelling with two sim cards for her phone one an international sim card dedicated for international calls at a cheaper rate. It carried it's own phone number; it was provided by and to give Johnnie and Gina phone access to her on a phone number different from her own phone number thereby making detection of the Indian based syndicate more problematic for the authorities.

It was Ms Basri's account, she was directed not to phone Johnnie or Gina and to delete all phone numbers in the memory an hour before leaving Mumbai. Those arrangements if they be accurately recorded by her are only consistent with all future contact with Johnnie and Gina being terminated. In those circumstances the unexplained loss of engagement in the Sari and Punjabi suit business in Malaysia without complaint by her makes that supposed reason for the initial contact so hollow as to be extremely dubious. Frankly her narrative to the police does not survive analysis.

What did not come out in the trial but has come out subsequently is that she was in fact in contact with Gina before she left Malaysia. When seized, the admixture in the suitcase was 3.04 kilograms. Upon analysis the admixture was found to contain 1.88 kilograms of pure heroin. The admixture was assessed as being 61.8 per cent pure heroin.

Upon her arrest Ms Basri co-operated with the police. As the evidence in the trial unfolded it became clear, police had prior intelligence indicating the unlawful arrival of the border control substance and the identity of Ms Basri as the person in whose custody that item would be when imported into Australia.

Customs and police quickly identified the bag after it was unloaded from the plane but prior to its arrival in the custom's hall. She was arrested whilst waiting in vain for her bag at the luggage carousel in the custom's hall. Once arrested she agreed to assist Federal police in a controlled delivery of the trolley suitcase to those who were sent by the drug syndicate to collect it from her. She was afforded the status of a "protected person" for the purpose of undertaking this controlled delivery.

The jury by its verdict found that both Okonkwo and Madubuko were jointly involved in attempting to retrieve the illegally imported heroine. Ms Basri, together with the trolley bag now containing a substitute packet of inert substance or the packet of heroin it previously contained, was conveyed by police to the Travelodge Motel/Hotel at Bankstown. She had been in phone or SMS contact with Johnnie or Gina on a number of occasions since her arrival and indeed since her arrest.

Madubuko and Okonkwo were in the area of the Travelodge. She had been told by Johnnie after she arrived at the Kingsford Smith Airport that there were "two black guys supposed to be meeting [her]". These instructions would appear to differ from her account that she was supposed to give the contents of the suitcase to Gina's brother or cousin. Gina was described as possibly Chinese. It is likely Ms Basri would have assumed Gina's brother to be of a similar ethnicity to her (Gina).

By 5.30pm or so the Australian Federal police had Ms Basri in room 415 at Bankstown Travelodge. There were a number of phone calls made by her. By 7pm with her trolley suitcase she made her way to level 1 in the hotel's car park. Okonkwo and Madubuko are both Nigerian. Because of their skin colour and the message re "two black guys" they were obviously persons of interest to the police in the area. Both were seen to be using their mobile phones. Ms Basri left the car park and hotel, met and conversed with Okonkwo and Madubuko, followed them for a short period, they stopped, she further conversed with Madubuko, then continued on with Madubuko, it would seem to the motor vehicle that was owned by Okonkwo. Meanwhile Okonkwo left them, apparently to attend an ATM machine for cash.

Some thirty minutes later Madubuko and Okonkwo were arrested leaving the parking spot they had secured on Chapel Road. Okonkwo was driving his Lancer, Madubuko was seated in the passenger seat. In the boot of this car was the controlled delivery suitcase. Madubuko was searched and found upon his person were one thousand US dollars. Two mobile phones were found under the passenger seat, one of them had an SMS message "No room 415" and had come from an Indian based mobile phone.

The jury must have been satisfied beyond reasonable doubt that each of Madubuko and Okonkwo attempted intentionally to possess an illicit substance believing it to be a border controlled drug which they knew would be passed over to them by a courier who was acting on directions of someone in India. I am also satisfied each knew it had arrived in Australia very recently and most likely that day.

All parties co-operated in the trial with the prosecution by compiling and agreeing to a seventeen paragraph agreed facts pursuant to s 191 of the Evidence Act. In my experience three accused litigants agreeing to such a statement is unique. It certainly had a significant value to the conduct of the trial, in particular reducing the required number of witnesses considerably, the number of issues the Crown had to formally approve, the length of the trial considerably and issues the jury had to evaluate from competing evidence and contested evidence considerably.

These gains to the trial present as worthwhile contributions to the administration of criminal justice. Hopefully the initiative taken by defence counsel in this trial will become a template or pathfinder for other defence counsel.

Since writing the above I have now read exhibit B3, record of interview with Federal agent, Tim Rose dated 8 January 2009. The subject of the interview was, of course, Ms Basri. In that interview Ms Basri admits to communicating with the Indian female on the internet who told her she had vacancies and gave her a phone number. I am satisfied telephone communication with Gina by Ms Basri followed.

Objective Criminality 24. From the facts as he finds them to be, a sentencing judge is required to assess the objective criminality of the offences before the court as an essential step in assessing the seriousness of the criminal behaviour of these offenders. That is done by comparing objectively the criminality exhibited in this trial with criminality of offences of a similar kind. It is in this way that the objective seriousness of the criminality of these offences is evaluated.

Objective criminality has an important impact, indeed the most important impact, upon the overall sentencing outcome. The importation of illicit drugs into Australia should be seen as an offence against the public health. My understanding is that all heroin in Australia is here as a consequence of importation. Courts have long recognised that in assessing the objective seriousness of a drug offence, it is necessary to have regard to that drug's potential for harm. I am satisfied the heroin was imported with a view to it being distributed on the illegal drug market for financial reward.

Drug dealing is harmful to the community by those who purchase drugs. It also has an indirect impact upon the community at large. Drug distribution is anti-social because it is a crime against public health. Importation of illegal drugs, not otherwise available in Australia, is a first step in their illegal distribution into this country.

For some, if not most, drugs such as heroin are addictive. Some are destructive of, or contributing to mental health problems Supplying drugs leads to or sustains drug addicts. Drug addicts are human beings whose capacity to function and feel human is smothered to a greater or lesser extent by addiction and the other effects of drugs. That is the real essence of the criminal harm done by those who supply drugs and who rely upon importers. That is, in a greater or lesser way, the disenabling of other human beings is accomplished by those who deal in or traffic in drugs.

Heroin as I mentioned earlier is a particularly addictive form of drug. The weight of the heroin amounted to 1.88 kilograms. The marketable quantity of heroin is set at 2 grams. The commercial quantity is one that commences at a threshold of 1.5 kilos. 1.88 kilos is 380 grams above the commercial quantity threshold or roughly 33% more than the commercial threshold. Clearly the actual quantity of pure heroin imported increases the potential for harm.

I do not have before me evidence of any range of street deals that would be available from this quantity of heroin but it must be considerable. The present quantities 1.88 kilograms would need to be cut into quantities available to on-suppliers. There is a substantial potential for harm to health of a substantial number of persons. From the perspective of the Indian drug syndicate, this enterprise is motivated by financial greed.

The Indian drug syndicate presents as sophisticated in terms of the size of its operation, the presentation of heroin for importation purposes by which I mean the skill in merging it into the unsighted area of a suitcase and the organisation is sophisticated in its systems of protecting itself from detection.

Ms Basri was the courier whose responsibility was to shepherd this contraband from India to Bankstown for on-delivery to the tentacles of the Sydney-based distribution network. So far as is known, her reward included a twelve day stay in India, a trip to Australia, stay here for three or four days and US $500. She was tasked with monitoring the progress of the illicit importation and reporting back to Johnnie and Gina. She was also required to contact them on arrival to receive delivery instructions. It was, of course, as part of her task, to notify them of disaster or danger to the product.

Okonkwo and Madubuko were the first point of distribution in Sydney. Precisely what that means in the context of this case is unclear. I cannot be satisfied beyond reasonable doubt that either was the principal point of contact in Australia although I confess some suspicions. Obviously I cannot act on them. The giving of $1000 to Madubuko is capable of several interpretations with some or all of it for him, with some or all of it for Okonkwo. Was it seeding money or was it their payment for taking the contraband to the next link in the distribution chain. I am satisfied the decision for the two men to come to Bankstown was made after Ms Basri left Delhi.

The evidence suggests it is likely Okonkwo was the late inclusion although that is rather speculative, but frankly in the absence of evidence, I cannot be satisfied on the balance of probability that this is so.

Likewise it is likely both mobile phones found in the vehicle belonged to Madubuko as they were found under the passenger seat. Again, in the absence of evidence, I am unable to be satisfied on the balance of probabilities that they did not belong to Okonkwo.

Thus each is left with the liability that falls to them as a consequence of their being involved in a joint venture. Acts done associated with a joint venture create equal liability for each accused.

The travelling to the pick-up site, the collection of the assumed contraband, the placing of it in the getaway vehicle and the setting out to deliver the contraband to the next phase of its Australian journey, coupled with the phone calls made to and received by whoever it was that contacted India, fall equally on both males. Neither of them can be found, on the evidence before me, as an initiator of, or facilitator for, the distribution of heroin into the Australian community.

I note once the heroin was seized, the potential for real harm to the community ceased to be a reality. In that sense the criminality associated with the importation must be less than an importation which is consumed into actual delivery of drugs into the community. The tariffs for importation cases, where the potential for harm has been frustrated, establish that the benefit accruing to offenders in such circumstances is marginal.

Defence counsel for Ms Basri submitted she presented as having a vulnerable person profile. Police identified features of such a profile as including females being overweight, of low income and of poor personal esteem. To that profile one could also add of poor education. The difficulty, however, with the submission is that on her own account she instigated the contact with Gina and Johnnie. She travelled to India, she participated almost immediately upon her arrival for an Australian visa, whatever had enticed her to India, within hours of her arrival if not before she knew she was going to Australia. It is unlikely she would have been taken to India by the drug syndicate if she had not already agreed to travel from there to Australia. It makes no sense from the point of view of the Indian-based drug syndicate for her to be taken to India from Malaysia to be screened there.

There is no evidence she was targeted. On her account she responded to some enticement to travel to India. On her account it was saris back to Malaysia.

Absent evidence of actual targeting by the drug syndicate, I am really unable to determine what motivated her. I have already indicated I regard her evidence as unreliable especially her evidence that she was tricked. But the circumstances by which arrangements were made for her to come to Australia as set out by her in her account have already been discounted.

A proper evaluation of the objective criminality leads to the inescapable conclusion that all of these offences are sufficiently serious as to require substantial sentences of full-time custody.

I turn now to review the subjective factors for each of the offenders. I am both entitled and required to do this. Not only am I sentencing for the criminal offence each has committed, but also I am sentencing each particular offender for it. Each offender coming before the court varies from other offenders who stand or who have stood for sentence, circumstances personal to this offender may offer to the court some explanation and insight into the commission of this offence by an offender or some reason why a more or a less sentencing outcome is appropriate.

Saripah Basri - Family Dynamics, Personal Background, Relationships 43. Miss Basri was born in Malaysia thirty-nine years ago. Her mother married five times and most of her children were fostered out. Miss Basri was fostered to her grandmother when aged twelve months. She was subject to physical abuse from her grandfather. He would strike her on her head and body. He would heat up a piece of metal and burn her ears with it. She was made to spend time studying the Koran daily. She ran away on occasions but was returned to the same grandparents. She was raped by a neighbour, ran away and was returned to her grandparents home. For a while she lived with her mother; then she was required to rise early and bake cakes for the market. Both parents are now deceased. At fifteen she was subject to an arranged marriage, gave birth to the first of her eight children at the age of eighteen. Their ages range from nine to twenty. She claims when she left Malaysia she only intended to be away for a week and left the children in the care of relatives. She and her husband separated in 2005 but remained, as it were, in the same premises. That marriage was marked by violence. She left the house she shared with her husband in 2007.

Education, Employment and Skills 44. She says her schooling was, "inconsistent" by which she appears to mean unstable. In some years she would go to four different schools. She held employment in a video parlour game as a security officer, sales assistant and despatch officer.

General Health 45. Much of her life she has been subject to physical abuse, some of it severe. Miss Pullman, who prepared a personal/psychological profile at the request of the defence, was of opinion she may have suffered some level of traumatic brain injury with long lasting sequale.

I have viewed Miss Pullman's report with some caution for reasons I will explain shortly. She experiences headaches, osteoporosis, back pain, poor vision in left eye and loss of hearing in the left ear. One can not rule out that the majority of these symptoms have their origin in physical attacks upon her head.

Mental Health 47. She reported symptoms of depression. One would hazard a guess that the depression may have been reactive to her current situation in gaol and also reactive to the unfortunate life she had experienced thus far. She is reported to have low self-esteem. Her intellectual functioning gauged upon the tests conducted by Miss Pullman that the offender was able to complete is assessed as being in the extremely low range and the eighth percentile.

Although it may be difficult for a judicial officer to accurately assess within the context of trial and the use of interpreter, I would not accept that her presentation revealed an intellect impoverishment to that extent. In so saying I would not want it thought I viewed her as being anything other than intellectually impoverished at some level. I have reservations based on her presentations, albeit in compromised circumstances, that her level of impoverishment is so extreme. She was able to give Miss Pullman and to Therese Sartor from Probation and Parole, what appeared to be detailed and consistent histories. Her ability to record short passages of new auditory information appeared intact. She was able to express anxiety about her situation in court, which anxiety had its origins in assisting police at Bankstown in a controlled delivery.

She was able to travel independently to India, Rio De Janeiro and to Australia and to Spain. She was aware her luggage was missing and able to communicate to someone at a time when her luggage had not appeared both by way of telephone and, it would seem, to another person in the Customs Hall.

She is aware of where her children are and is appropriately concerned that she is unable to care for them, understanding that would be causing her grief. She was able to recall to Probation and Parole explicit detail of the advertisement she said she answered that saw her travel from Malaysia to India. All of those functions are well above the capacity of those unfortunate to function at the eighth percentile of intellectual functioning.

I am fortified in this finding by the absence of any comment from the PSR author as to any compromised intellectual functioning which I would have expected had there been any noticeable to her.

Drugs and Alcohol 52. Miss Basri denies any history of drug or alcohol abuse. She does not smoke cigarettes.

Character 53. Aged forty-eight with difficult childhood which led into a difficult marriage, she has been out of criminal trouble in her home country. She presents as having a good ethic in circumstances where she was also raising eight children. About one month before leaving India she was involved in divorce proceedings in the Malay judicial system.

Attitude to Offence 54. Her case was that she did not have the requisite criminal knowledge. There was no denial of the importation or of the nature or quantity of the drug. No allegations were made against police conduct. As I earlier remarked she was party to an agreed set of facts that sought to isolate the issues to be determined by the jury to one of criminal knowledge.

That the Commonwealth Crown felt it necessary to prove some agreed matters was a matter for him; it is a well-known and recognised feature of Commonwealth jury trials that evidence from several sources will be harnessed to prove a single and sometimes minor proposition "for the sake of completeness".

Since her conviction she has maintained she lacked the requisite knowledge. Subject to that caveat, she claimed awareness that drugs cause considerable harm to family and community generally. She stated she was sorry for her involvement.

While I am conscious the jury and I find against her on the knowledge issue, I accept that the human psyche is capable of experiencing more than one conflicting feelings on the same issue. Such contrition as she has, is thus made imperfect, but I accept that it exists at some level. This finding is, I note, consistent with my finding that she functions at a higher intellectual level than Miss Pullman opines.

Cooperation with Police 58. I have referred to the fact that she assisted police in the investigation stages of this matter immediately after her arrest. There can be no doubt that had she refused to do so neither of the male defendants would have been at trial. Her service to the administration of justice on this account is important. It is also a matter I am required to take into account in a substantial way by virtue of 16A(h)(1) of the Crimes Act 1914 (Cwh).

I have read the interview between Ms Basri and the Australian Federal Police agents on 8 January 2009 (exhibit 3). The interview in terms of any assistance to police has not been assessed in evidence before me by them. So far as I can assess there may have been a fact or two emerging from that interview that could have been added to the AFP intelligence database, otherwise there would appear to be no value from the interview. If her intention in doing the interview was to demonstrate cooperation with the police, it backfired. I am satisfied when questioned about her own situation in regards to this offence she was unreliable and on occasions deliberately deceptive. The only credit for which she is entitled to some mitigation, by virtue of her cooperation with the police, occurs on 25 February 2008.

Rehabilitation 60. It is most unlikely Ms Basri will ever offend against an Australian law in future. Her prospects of rehabilitation would be assessed as high. She has family ties in Malaysia, no prior criminal history there, and will have strong personal deterrence as a consequence of her period in incarceration.

What Effect Will Custody Have on Third Parties 61. I am satisfied no third party in Australia is impacted by Ms Basri being in custody. Her return to Malaysia will necessarily be delayed. Her continued absence will impact on her children. In that sense one anticipates they will miss her and the quality of care she gives to them. But it would seem they are being cared for by others. The quality of that care is not in evidence before me.

Okonkwo Family Dynamics, Personal Background, Relationships 62. Ifeanyi Okonkwo is forty-five years old, a separated man with two children - a daughter aged eleven, son aged nine - living in Nigeria. He is the eldest of nine children. He maintains contact with his aged father. His mother is deceased. He has been in Australia for some eight or so years, having overstayed on a tourist visa. He came for the Olympic Games. He is currently holding a criminal justice visa.

In Australia he formed a relationship with a girlfriend who is supportive of him even whilst he has been in custody. His family in Nigeria were poor.

Education Skills and Employment 64. He had difficulty obtaining employment in Australia. His application for refugee status was rejected. In 2001 he obtained employment as an unskilled labourer, was injured in 2002 (rotor cuff injury). At the time of his arrest his income stream was $705 per fortnight by way of Workers' Compensation. He is currently taking antiinflammatory medication. He completed his schooling in Nigeria aged fourteen and worked as a salesman dealing in building materials (plumbing) for six years. He began his own building material business which he ran until attending the Sydney Olympic Games.

He has undertaken courses whilst in custody in public speaking(?) and obtained his Certificate III in Employment, Education and Training. Between July 2008 and May 2009 he obtained nine certificates in religious studies from the Emmaus Correspondence School. He was associated with the Nigerian Sydney soccer team as one of that team's coaches from 2001. He was also associated with the Igbo Cultural Dance Group of New South Wales.

General Health 66. He had had an operation to the right shoulder as a consequence of the work injury earlier mentioned. He has been diagnosed in custody as having an enlarged heart and hepatitis.

Mental Health 67. Apart from some counselling following his employment injury, and a history of depression, there appear to be no other mental health issues. Because of a past history of depression he came into custody with a mandatory risk intervention team assessment. He has received counselling on reception into custody. When interviewed by Dr Westmore, a psychiatrist for the defence, he denied major depressive illness. Dr Westmore diagnoses that depression as being in remission.

Drugs and Alcohol 68. He denies using illicit drugs or abusing alcohol.

Character 69. The offender has never previously been in trouble with the law in Australia or Nigeria. He has remained in Australia after his tourist visa expired and after his refugee application was refused. Otherwise so far as respect for government requirements, there appears to be no criticism.

As the father of two children he was sending money to Nigeria for their support. He keeps in phone contact with his aged father. There are references, several of them, which make clear he was making major contributions to the African and particularly Nigerian community in Sydney through sport, cultural dancing and his church community. The references make mention of his generosity of time to handle church equipment, organise events, coach soccer, interact with the parish children. A number of his referees described this offending conduct as being entirely out of character for him.

I have already noted he has been attending courses whilst in custody. Since writing this, by consent of the Crown, more certificates of courses completed have been tendered. He has attended four Certificate I and II courses including Spoken and Written English, Skills for Work Training. There is also evidence he is employed whilst in custody since July 2008.

Cooperation with the Police 72. Once arrested, he complied with police orders. He exercised his right to silence at the investigation stage which cannot be used adversely to him. There is no other area in which he has assisted police.

Attitude to Offence 73. He disagreed with the police facts he told Probation and Parole. The account he gave to the author of the pre-sentence report was that he was with a friend who asked for a lift to Bankstown. He drove his friend there. There were mobile phone conversations between the friend and other persons. Ultimately the friend met a woman, the two of them greeted each other. The friend walked towards where the car was, the woman followed pulling her suitcase. Okonkwo said he left to attend an ATM, returned to the car, the woman left. His friend had the suitcase which was then placed in the boot. They drove off and very shortly thereafter were arrested. He still maintains he is innocent.

While there was no onus on him at trial to prove anything that version was not before the jury by way of direct sworn evidence. On the evidence before them the jury were not prepared to draw the inferences necessary to raise any reasonable doubt. As matters stand, he claims he is innocent.

Rehabilitation Prospects 75. Notwithstanding the absence of expressed contrition there appears to be good prospects of rehabilitation. There is no other offending in his forty-five year history, he has been conscientious whilst in custody advancing his level of education and fitness for future job opportunities. He has strong community support in Australia; while that support will not transfer to Nigeria should he be sent there or return there, as seems likely, the skills and attitudes he has developed that created that level of community support are likely to transfer well to his homeland. In Nigeria he has family support.

I am satisfied the custody of the offender does not effect any person in Australia. There is evidence which I accept Okonkwo was sending some portion of his compensation payments to support his children. On the evidence before me I am unable to determine what has happened to his compensation payments whilst he is in custody therefore I am unable to determine what if any effect his custody has upon the income stream that was flowing to someone on behalf of care of his children. I imagine phone communication with his father and children is less than otherwise would be.

There is no evidence to suggest one way or the other whether his custodial situation has been conveyed to any family members in Nigeria. Custody will necessarily delay his return to Nigeria assuming he accepts deportation, and therefore to his family.

Madubuko Family Dynamics, Personal Background, Relationships 78. Madubuko was born in Nigeria forty-four years ago. He is one of two siblings raised in a supportive family environment. However, his schooling was interrupted during his teenage years on account of his father's illness. One of the consequences of the father's diabetes was the amputation of both legs. The family financial situation thereafter was impacted by the loss of the main income earner. It affected his family and saw Madubuko loaded with new responsibilities. Those new responsibilities led to isolation from his peer group. His father passed away in the early 1990's, shortly thereafter Madubuko moved from the village to the city looking for employment, apparently only with sporadic success.

In 2003 he arrived in Australia, aged thirty-nine, probably on a tourist visa. In any event his status became unlawful non-citizen having negative employment implications for him. He formed a relationship in June 2007 with his current partner. He claims the relationship is positive and supportive. He claims a social network in Sydney. He entertains an intention of residing in the Bankstown area upon release. No doubt the Immigration Department is reviewing his file to see whether that dream is realistic or otherwise.

Education, Skills and Employment 80. He attended school in Nigeria, leaving in his teenage years. He later obtained his school certificate as a mature age student. He claims his literacy skills are satisfactory. In Australia he has worked in casual positions, the frequency of work, and no doubt of employers, will have varied.

General Health 81. For reasons that have not been explained he has shoulders that dislocate easily. Whether this is a consequence of sporting or work injury or some idiosyncratic condition is unclear, otherwise he appears in reasonable physical health for a forty-four year old man.

Mental Health Issues 82. There is no evidence upon which any mental health insight can be based.

Drugs and Alcohol 83. He denies any history of drug addiction. He consumes alcohol on occasions perhaps two times weekly, drinking heavily, four to six bottles (I have assumed 750ml). There have been periods of greater alcohol consumption but at the time of his arrest it had decreased because of concerns he had that it was affecting his physical health. He has never sought professional help in respect of drinking and it would seem never felt the need to do so.

Character 84. So far as is known he is a person without prior convictions. While he may have had a good start in life, during his father's illness matters became more difficult, he left school early and sought employment in the city without much success. He blames the uncertain economic conditions in Nigeria for this. He visited Australia and stayed with consequent employment problems as a consequence of his immigration status.

There has been no career path for him. To his credit he obtained a school certificate at a mature age. There are no institutional charges against him nor has he presented in custody with any behavioural issues.

Attitude to Offence 86. He told Probation and Parole the jury reached the wrong verdict. He acknowledged presence at the scene, apparently including being with Okonkwo and in Okonkwo's car. He disputes an observation by the pre-sentence report author that "he did not have any knowledge of the suitcase or its contents". It would appear he lacks acceptance of, and insight to, his offending conduct.

Rehabilitation Prospects 87. It is more difficult to assess this offender's rehabilitation prospects. He claims support in Australia, his partner. He has he says a social network. His contact with persons, if it be his contact, associated with the Indian based drug network remain unexplained. His motivation for being involved and his level of involvement in this offence remain unexplained. His work history and income stream appear less certain. On the other hand this is his first offence in forty-four years, there are no institutional charges against him, nor has he presented in custody with behavioural issues. I would assess his rehabilitation prospects as probably positive.

Cooperation with Police 88. Once arrested there is no issue but he obeyed all police requests. He has exercised his right to silence and that will play no real part in the sentencing disposition but for his cooperation in the sense of behavioural cooperation with the police, there is no other real assistance given to the police.

Impact of the Sentence on Third Parties 89. On the evidence before the court his custodial sentence will impact upon his partner who will be without his presence, company and support in Australia. So far as I can tell no other person of importance within his social network will be seriously effected.

Personal Deterrence 91. In respect of each offender, the sentence under consideration for that offender will be sufficient to constitute powerful personal deterrence.

Section 16A(3) Crimes Act 1914 requires a court to regard the nature and severity of the conditions that may be imposed upon or applied to an offender under the sentence to be imposed. Each offender will be held in a secure single sex environment for the duration of the non-parole period. Each one's capacity to make decision or choices concerning herself or himself is necessarily severely compromised. Each one's capacity to chose the company he or she will keep is severely compromised. Contact with persons beyond the prison walls is compromised. Persons speaking the language of their origin, that is of the origin of the offenders and coming from their culture will be few. Indeed, so far as the Nigerians are concerned, I imagine very few. There is a high level of violence and noise or shouting and iron doors and bolts closing and opening. While there may be employment facilities, they are poorly paid and would depend upon whether the correctional institution in which an offender is housed maintains an employment program. Likewise education programs are at the whim of the custodial system. Prisoners are frequently required to spend inordinate times in their cells in an unproductive, mind-numbing and lonely environment.

Setting the Sentences 93. The case law in s 16A(1) makes plain the court must impose a sentence that is of severity appropriate in all the circumstances. I regard the purpose of s 16A(3) to which I have just referred, as requiring the judge imposing a sentence of full time prison to recognise imprisonment must be, because of its nature and severity, a sentence of last resort.

Nevertheless the case law also makes clear that in the circumstances of this case full-time custodial sentences are called for. The provision of a maximum sentence of life imprisonment for all of these offences before the court, makes clear general deterrence must be a factor playing some part in the sentencing determination.

Section 16A(2)(a) - (c) require the court to assess the nature and circumstances of the offence and the role each offender played in it. That requires an assessment of what each actually did and if possible where each fitted within the framework of the structural make up of the group, if there be one, that was responsible for the offence being committed.

I have described Ms Basri's role as the courier who's responsibility it was to shepherd the heroin from India to Bankstown for on delivery to the tentacles of the Sydney distribution network of the organisation. In that role she was required to report the progress and presumably any problems associated with it, as the heroin journeyed from India to Bankstown.

Okonkwo and Madubuko were the first point of contact with the distribution network. I indicated I was unable to determine on the evidence whether either was a principal or overseer of the distribution, frankly it is unlikely. The Crown case against Madubuko and Okonkwo was a joint venture to collect the contraband. The jury must have accepted that proposition beyond reasonable doubt to have found both guilty. The Crown sought to argue Madubuko's role in the attempt possession was the greater, that would be true if the evidence satisfied me beyond reasonable doubt that the phones found under his seat were in his custody. From that would spring findings that he was the person making contact with India and received a copy of the SMS text originally sent by Ms Basri. There is no point in having a standard of proof beyond reasonable doubt for fact finding adverse to an accused and then applying a lessor standard.

Determining who had custody of the evidence laden mobile phone appears a classic "Filippetti" conundrum (Filippetti 13 A Crim R 335). The vehicle was Okonkwo's, the seat under which they were found, had last been used by Madubuko. It is possible they were deposited, indeed probable they were deposited when the men were confronted with an arrest situation. In those circumstances albeit it with slightly different reasoning either Madubuko or Okonkwo could have deposited the phones there. The other seriously incriminating evidence of Madubuko is his possession of the US one thousand dollars. There is no explanation in the trial evidence as to why he received the money. The trial evidence does disclose a late announcement from India to Ms Basri that "two black guys" would be collecting the suitcase. There is hearsay evidence from Ms Basri's January interview that the US $1000 was to be divided between the two. While that is not evidence in the sentence proceedings against Madubuko or Okonkwo, its importance is to remind me that drawing conclusions of fact adverse to Madubuko from evidence, must be a justified conclusion of fact. I am not prepared to find the $1000 was intended for Madubuko alone, otherwise that would seem to suggest the other member of the joint venture Okonkwo, was to go unrewarded by the Indian based drug syndicate for providing the car and the support to Madubuko that comes from personal presence.

In assessing then the significance of Madubuko and Okonkwo to the Indian based drug syndicate or an independent Australian distribution network, it is important to attach significance to the distribution of the reward coming from India. Ms Basri received the Indian base journey, the trip to Sydney and four day stay, return air fare to India and US$500. Madubuko and Okonkwo it would seem shared US $1000 between them. Their rewards appears significantly less than that allocated to Ms Basri. That would be consistent with their task being less demanding and less risky than hers. On the evidence before me I am prepared to find that neither Madubuko nor Okonkwo was a lieutenant in the Indian based drug syndicate.

Such a finding would have to be made beyond reasonable doubt. I cannot make it. It appears I am left with the fact that they have been recruited for the transfer of the heroin from Bankstown to those who were charged with responsibility of distributing it in Sydney. On the evidence before me I am unable to determine whether the distribution was being undertaken by the Indian based drug syndicate for itself or for some independent Australian group, who purchased from India on condition of delivery being to the front door of the distribution network.

The criminality of Madubuko and Okonkwo is therefore limited to the acceptance of a suitcase from Ms Basri for delivery to the door of the distribution network and all steps taken by them incidental to that function including the phone contacts. I cannot, however, saddle them with any knowledge or consequence of any phone calls prior to Bankstown. What was contained within the telephone and its use prior to Bankstown was not part of the joint venture. On that view the criminality is equal to each other and aggravated by their being in company; but overall less than Ms Basri's.

The case law makes clear that a further factor to be taken into account is the quantity of drugs. The threshold for this charge of commercial quantity is 1.5 kilograms of pure heroin (314.1 Criminal Code Act 1995). That, of course, sits within the benchmark above the marketable quantity; the maximum penalty of life imprisonment as against twenty-five years for the maximum quantity also takes into account this increased threshold. The quantity of pure heroin was 1.88 kilos; that is, one-third kilogram higher than the threshold.

A commercial quantity would embrace shipments of tens of kilos, perhaps even hundreds of kilos more than the quantity I am concerned with. In those circumstances the quantity I am concerned with is certainly in the lower reaches of the commercial quantity.

Okonkwo and Madubuko are charged with attempt; the same maximum penalty applies to attempts. At common law attempts have generally been regarded as less serious than the consummated offence. The measure of seriousness was the steps taken by an offender to complete the offending conduct. In this case both offenders took all steps necessary to complete the crime of possessing heroin. On that measure their criminality would have to be assessed as though they had actually possessed the heroin. However, on another measure the potential for harm arising from their criminal conduct, the criminality is not as great. My memory of the authorities so far as drug importation and possession is concerned is that less weight than usual is given to this aspect. I note, however, that some weight, although not much, will be given.

Because of police intervention, the potential for harm to the community was avoided. While it is true neither male offender knew this, objectively the offence could not be as serious as one where the heroin was successfully retrieved and let us say they had succeeded in delivering it.

The personal circumstances of Madubuko and Okonkwo are not so different as to require any differing mitigation of penalty. Okonkwo's subjective features present him in a slightly better light by comparison to Madubuko, but the differentiation is not so substantial as to require adjustment to the parity principle.

The personal circumstances of Ms Basri include her post-arrest participation in the control of delivery. There was a further meeting between her and the police which may at best have added one or two facts to their institutional intelligence data. She will be given a thirty per cent discount on a sentence I otherwise would have passed but for her participation in the control of delivery. I have not added anything for her interview with police in January 2009.

Concerning the sentences I also take into account the cooperation of the parties with the prosecution in reaching an agreed statement of facts earlier referred to. Some adjustment downward to the sentence is made on that account. In setting the sentences I have also relied upon the JIRS statistics in respect of both cocaine and heroin imports captured by s 307.1 Criminal Code Act 1995. The number of cases revealed by those statistics are so limited that one cannot with any confidence establish the full range of sentencing for a commercial quantity of heroin although it is likely it is the upper regions of the range that are yet to be filled in.

I have also paid some regard to sentences and remarks made in Taha NSW CCA 18.2.1990 on a plea of guilty for a professional courier expecting significant reward; Taha (2.234 kilos); Pang (1999) 105 A Crim R 474 (2.495 kilos), a plea of guilty, courier, some assistance police; Hashmi NSW CCA [439] 13.8.1999 (1.88 grams pure), courier, needed money, assistance fifty per cent discount; Ghale (37) NSW CCA [249] 7.7.2000 - I cannot remember the quantity of drugs, but I will put in the remarks if they need to be printed - Chua (28) NSW CCA [50] 2.3.2001, courier (1.9264 kilograms). All those cases were concerned with the importation of heroin. I have also had regard to Markar [2000] NSWCCA 72, an attempt to possess(2.635 kilograms).

The starting point for Ms Basri's sentence will be seven and a half years. A discount of thirty per cent reduces that figure by two years and three months, leaving her overall sentence to be one of five years and three months. The non parole period will be three years and three months.

The sentences for each of Madubuko and Okonkwo will be six years and six months, with a non parole period of four years and two months. Notwithstanding that their criminality is less, the discount of thirty per cent has brought the sentence of Ms Basri below theirs. Sentences will date from the date of their arrest of 25 February 2008.

I note the time is 4.30pm, I can also note and for me to explain the figures in the JIRS statistics would take another 10 or 15 minutes, I will include that in the judgment, I will be put that in square brackets so that it is clear that while I had it here, I did not orally deliver it, but it will explain at least for those who are prepared to accept it in any other place, how I got to where I am, if they are prepared to accept it. (Material referred to by HH has been mislaid)

Ms Basri, would you stand up please. Ms Basri, you are convicted that you on 25 February at Sydney, New South Wales, did import a substance, the substance being a border control drug, namely heroin, and the quantity imported being a commercial quantity, for that offence, you are sentenced to a sentence of five years and three months, to date from 25 February 2008 and to expire on 24 February 2013. Your non-parole period is one of three years and three months, which will expire on 24 May 2011.

Mr Madubuko and Mr Okonkwo, would each of you stand up. Henry Madubuko and Ifeanyi Fidel Okonkwo, each of you is convicted that you on 25 February 2008 at Sydney, did attempt to possess a substance being a border control substance, namely heroin, which had been unlawfully imported, and the quantity being imported was a commercial quantity, for that offence each of you will be sentenced to an overall sentence of six years and six months, to date from 25 February 2008 and to expire on 24 August 2014. Your non-parole period will be four years and two months, and that will expire on 24 April 2012.

I should indicate to all of you that what I have just done is sentence you to prison. In the case of Ms Basri, until 24 May 2011 when you will be released on parole. From what I am told, it is likely you will be deported at that time to Malaysia, but that is no part of my function. You will have a balance of term to serve of two years, that is likely that you will serve it at liberty in Malaysia, but you will be released from custody.

In respect of Mr Madubuko and Mr Okonkwo, you will not be released from custody until 24 April 2012 on the sentence I have set. I cannot work out how much more that is for any of you, you will have to do it yourselves, counsel will no doubt assist you. And again, the balance of your sentence will be served in the community. I have no doubt that the Department of Immigration will have an interest in deporting both of you, that does not mean that they will and I have nothing to do with any of that, in any event, but I guess that if one was a gambling man, it would be anticipated that the balance of your sentence may be served at liberty somewhere other than Australia.

HIS HONOUR: I do want to thank, if I haven't already done so, all counsel, including those not present, for their assistance during the trial. I want to thank all accused for their cooperation with the authorities and with the court during the trial.

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