Chan, Lo and Nguyen v The Queen [2010] NSWCCA 153

Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162

R v Aniezue [2016] ACTSC 82

R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106

R v Thi Bach Tuyet Do [2005] NSWCCA 258

Zhang v The Queen [2010] NSWCCA 105

Commonwealth Director of Public Prosecutions (Crown)

1. Jackson Igwebuike has been found guilty by a jury of importing a commercial quantity of a border-controlled drug, namely, methamphetamine, contrary to s 307.1(1) of the Criminal Code 1995 (Cth) and carrying a maximum penalty including life imprisonment.

3. Some of the following facts were undisputed at trial, and findings about certain other matters are implied by the jury's verdict.

4. Mr Igwebuike had been in contact with a person known as "Kalia", who asked him to arrange for the release of a consignment of three crates sent from Guangzhou in China. This consignment had been intercepted by the Australian Border Force, and was found to contain, among other things, a statue of a gold fish. Concealed within the statue was 10.58 kg of methamphetamine (being nearly 8.5 kg pure weight methamphetamine). Australian Border Force officers seized the methamphetamine for further testing and police replaced it with an inert substance, leaving the consignment to continue through the importation processes while they conducted further investigations.

5. Between 4 and 9 October 2015, Mr Igwebuike, assuming the fictitious identity of one "David Solomon", provided a freight forwarding business, ACE Global Logistics (ACE) with the necessary money and documents for the consignment to be released, and arranged for ACE to deliver the consignment to an address that was not connected with anyone involved in the offence, but was several houses away from the house in Canberra in which Mr Igwebuike was living.

6. On 16 October 2015, and under covert police surveillance, the consignment was delivered, and Mr Igwebuike took the three crates to his home. The crate containing the gold fish was opened, and 43 black, duct-taped packages (now containing only the inert substance) were transferred into a suitcase.

7. On Saturday, 17 October 2015, Mr Igwebuike took the suitcase to the Jolimont Centre bus station, intending to deliver the suitcase to a person in Cabramatta in Sydney. Around 8 am, while Mr Igwebuike was waiting to board the bus to Sydney, police officers arrested him and seized the suitcase.

8. It is implicit in the jury's verdict that when Mr Igwebuike dealt with ACE, he either knew, or believed there was a real or significant chance, that the consignment contained a border-controlled drug.

9. A number of other possibly relevant matters did not need to be determined by the jury.

10. The jury did not need to conclude that Mr Igwebuike knew exactly what drug he was dealing with, or that its street value was up to $10.2 million, but I am satisfied beyond reasonable doubt, especially by reference to some of his comments in intercepted phone calls, that Mr Igwebuike knew that there was a relatively large quantity of whatever he was dealing with.

11. The Crown's case at trial was that Mr Igwebuike opened the crates, removed the packages that had originally contained drugs from the fish statue, and packed them in his suitcase, among his clothes, ready for his trip to Cabramatta to deliver the packages.

12. Mr Igwebuike gave evidence at trial that after he picked up the consignment, two men visited his residence, opened the crates, threatened to kill him and his wife in Nigeria if he did not take the packages to Cabramatta, and then packed the suitcase for him.

13. With counsel's agreement, I directed the jury that even if they believed Mr Igwebuike's evidence about the two men, it did not establish a defence. Thus, the jury's verdict did not imply any particular finding about that evidence.

14. I note among other things that there was no mention of these two men, whom Mr Igwebuike also said had been involved at an earlier stage, in any of his intercepted phone calls with the people for whom he had agreed to facilitate the release of the consignment from Customs. I am not satisfied on the balance of probabilities that Mr Igwebuike acted as he did because of threats he said were made to him, or indeed that the two men existed at all.

15. The Crown says that Mr Igwebuike was motivated by greed in that he was to receive a financial reward for his involvement. This is another matter that did not need to be determined by the jury.

16. I do not accept, even on the balance of probabilities, Mr Igwebuike's claim that he took part in the importation exercise purely out of a sense of obligation to Kalia, who he said had, by giving him the name of a contact in Canberra, helped him to find somewhere cheap to live when he first arrived in Canberra.

17. I am satisfied beyond reasonable doubt that Mr Igwebuike was to receive a financial benefit beyond reimbursement of his expenses, but I am not so satisfied that it would have been in any way proportionate to the street value of the drugs involved, especially having regard to the risks taken by Mr Igwebuike in performing his part in the enterprise. Certainly the evidence led by the Crown suggested that Mr Igwebuike had used his own funds to make the payments necessary to release the consignment, and that he had also had to fund, at least initially, his travel to Sydney to deliver the drugs. On the other hand, there is material in the intercepted phone calls suggesting both that Mr Igwebuike was expecting something more than reimbursement for his expenses, and that he was keen to help with another importation before December.

18. The defence does not dispute the proposition that Mr Igwebuike was more than a mere courier. I accept that his role in clearing the consignment through Australian Customs, obtaining the delivery, unpacking the statue and preparing to take the drugs to Sydney was "an important and essential role" in the enterprise (Director of Public Prosecutions (Cth) v Brown [2017] VSCA 162 (Brown) at [30]).

19. Mr Igwebuike appeared before the Magistrates Court on 19 October 2015, and was remanded in custody, where he has been ever since. On that day, he was charged with attempting to possess methamphetamine, being a substance reasonably suspected of having been unlawfully imported, and on 5 May 2016, he was charged with importing methamphetamine. He pleaded not guilty to both those charges and was committed to this Court for trial on 25 August 2016.

20. At trial, the attempt to possess charge was an alternative charge; since the jury found Mr Igwebuike guilty of importing the methamphetamine, no verdict was taken on the attempted possession charge.

21. As of today, Mr Igwebuike has spent just over two years in custody in respect of these charges.

22. As well as the evidence given during the trial, the following material tendered by the Crown on sentence is in evidence before me:

(a) a pre-sentence report dated 26 September 2017; and

(b) a statement from Police Officer Michael Woodburn about the street value of the drug imported (the statement refers to "methylamphetamine", but I understand that this description is interchangeable with "methamphetamine").

(a) a letter to the Court from Mr Igwebuike;

(b) letters in support of Mr Igwebuike from three people who have dealt with him in the Alexander Maconochie Centre (AMC) and from his wife in Nigeria; and

(c) an AMC detainee statement of employment form.

24. In considering the objective seriousness offence, I have had regard to the following matters.

25. First, the fact that this offence carries a maximum sentence of life imprisonment indicates just how seriously it is regarded by the legislature and the community.

26. This offence applies to trafficking in a commercial quantity of methamphetamine, which quantity is 750 gm. It is apparent that trafficking in a quantity of methamphetamine of more than 10 kg, or even the roughly 8.5 kg of pure methamphetamine to which that quantity was equivalent, is a serious example of the offence. In the Victorian case of Brown, an offender who played a similar but slightly more substantial role than Mr Igwebuike in two separate importations of methamphetamine was sentenced on a Crown appeal to 16 years imprisonment for the second importation, which involved over 44 kg of methamphetamine. For the first importation offence, involving 3.4 kg, Mr Brown was sentenced to 11 years imprisonment, but I note that the 11 and 16 year sentences ran concurrently for 7 years.

27. In Brown, the Victorian Court of Appeal noted, at [61], the "irresistible logic" of the proposition that, "other things being equal, the greater the quantity involved the more serious is the offence".

28. As to remorse, Mr Igwebuike wrote a letter to the Court in which he apologised for his actions, expressed his sorrow and shame about what he has done, and gave an assurance that this kind of thing would never happen again. His counsel submitted that this letter amounted to an acceptance of responsibility.

29. The Crown, however, noted Mr Igwebuike's denial, throughout the trial, of any knowledge or belief that the consignment, or even the 43 small packages he eventually unpacked, contained drugs, and submitted that this showed an unwillingness to accept responsibility for the importation, despite the admissions he made at trial to his actions in facilitating the release of the consignment. This position seems to have been repeated by Mr Igwebuike in his dealings with the pre-sentence report author, who reports that he "maintained his innocence and expressed confusion and dismay regarding the guilty verdict".

30. I have no doubt that Mr Igwebuike regrets his involvement in the scheme, and may in his letter have effectively conceded that it was a conscious involvement, but it is hard to identify remorse as such. On the other hand, Mr Igwebuike's apparently exemplary conduct in the AMC, despite the alien nature of the environment he has found himself in, can also be seen as some kind of willingness to accept the consequences of his choices.

31. I have also had regard in this sentencing to Mr Igwebuike's subjective circumstances.

32. He is now 34. He has no criminal history in Australia and none known elsewhere. It is, however, a well-established principle that for offences of this kind, prior good character is not a significant mitigating factor, if only because people of prior good character are routinely chosen to participate in drug importation enterprises.

33. Mr Igwebuike came to Australia in July 2015 to undertake post-graduate studies at the University of Canberra (UC). He gave evidence during the trial that when he arrived, he was told that the rent in the UC hostel was expensive, so he called a friend for advice about other accommodation, and that friend in turn put him in touch with Kalia, who gave him the name of someone he could stay with while he looked for accommodation.

34. The pre-sentence report described Mr Igwebuike's background as follows:

Mr Igwebuike ... was born in Nigeria and is the fourth of six children born to his parents' marriage. He was raised in a religious household and both parents were school principals resulting in a strong emphasis on education for all family members. [His] mother died in 2013 and due to his father's blindness which forced him into retirement, the offender, as the eldest son, became the main source of income for the family. He relocated to Australia in 2015 to attend postgraduate studies. Mr Igwebuike stated his entire family resides in Nigeria and he is socially isolated in Australia ... he married in 2014 and his wife resides in Nigeria. Mr Igwebuike's student visa has been cancelled and he will return to Nigeria when he is released from custody. He expressed distress and shame that he is not currently able to provide for his family, and also indicated his brother was forced to leave his own postgraduate studies as [Mr Igwebuike] was no longer able to pay the university fees.

Mr Igwebuike completed a Bachelor degree in Nigeria and then worked until he was able to secure a placement in a postgraduate course in Australia. He [took] on labouring jobs while in high school to be able to pay his school fees following the loss of his father's income and again following his mother's death. Mr Igwebuike expressed concern about his future career prospects given the current offence; he indicated it was expected of him to obtain a wellpaying job to care for his father, and he is disappointed he will no longer be able to follow through on his political ambitions.

[Mr Igwebuike] has no current income and stated he has no debts. Service records confirmed he was able to obtain a partial refund of his university fees and this has been forwarded to his wife.

Mr Igwebuike said he was not involved in any organised activities prior to the current remand period as he spent all of his time working and studying. He reported he made few friends in the past due to his time constraints and is now socially isolated as he knows few people in Australia.

Mr Igwebuike denied any substance abuse issues. He admitted to experimenting with alcohol when younger, despite his parents' disapproval, and claimed no drug use.

[He] reported no physical health issues. He stated he has experienced feelings of depression as a result of the current Court matter and social isolation but had received no treatment. Service records indicated Mr Igwebuike had engaged with the Corrections Psychological Support Service ... to assist with his feelings of depression.

35. Mr Igwebuike, in his letter to the Court, described his personal situation in similar terms to those recorded in the pre-sentence report.

36. It is clear from his experiences in Nigeria, and since, that Mr Igwebuike has a good work ethic. When he first arrived in Australia he found work at the recycling plant in the ACT, and was working there before his arrest. I understand he has also been working in the AMC, and there have been no disciplinary issues during his two years there.

37. Mr Igwebuike also noted in his letter that, unlike Australian citizens, he has no access to free education while in the AMC, and that he is unlikely to be visited by any of his family from Nigeria. In his letter, he asks me to temper justice with mercy.

38. Mr Igwebuike has provided favourable references from:

(a) the Chaplain at the AMC;

(b) a trainer working for Campbell Page, the Education and Training provider at the AMC;

(c) his work supervisor in the AMC, who refers to his work as a cleaner in the AMC and now in the AMC kitchen, and describes him as a polite, reliable and willing worker with a good work ethic; and

(d) Ms Jane Reynolds, a volunteer member of Prisoners Aid ACT and former teacher in Nigeria, who has been visiting Mr Igwebuike weekly for the last eight months or so, who notes, among other things, his religious faith, his good intentions and that all the money he earns in the AMC kitchen is spent on phone calls to his family in Nigeria.

39. There is also a moving letter apparently from Mr Igwebuike's wife, who is of course still in Nigeria. She reports feelings of worthlessness and deep depression, and mentions a miscarriage shortly after Mr Igwebuike was arrested, said to be attributable to depression. The defence does not, however, rely on any claim that the miscarriage was attributable to Mr Igwebuike's arrest and imprisonment.

40. I accept Mr Igwebuike's claim that his imprisonment in Australia will impose a substantial burden on his family in Nigeria, while noting the Crown's submission that Mr Igwebuike is only one of three sons in his family, and that his brothers, who are also tertiaryeducated, will presumably be able to shoulder some of his family responsibilities. The impact on Mr Igwebuike's family is unfortunately a risk he took in agreeing to take part in this scheme.

41. It seems that for various reasons, Mr Igwebuike does not fit in particularly well with other prisoners in the AMC, and his period of incarceration may weigh more heavily on him than on a prisoner who finds himself among friends, or at least among people from similar backgrounds and with similar life experiences.

42. There is no suggestion that Mr Igwebuike is a drug user or has any other personal difficulties needing any particular form of rehabilitation.

43. I note that since his remand in custody, Mr Igwebuike's student visa has been cancelled, and he will apparently be deported on his release from custody. It seems that his UC fees have been refunded, at least in part, and the money returned to Nigeria.

44. I sympathise with Mr Igwebuike's plea for me to temper justice with mercy. I am also sympathetic to the needs of the family members in Nigeria who depended on him, and particularly to his wife's position. However, Mr Igwebuike and his family need to understand that the discretionary power involved in sentencing must be exercised in accordance with a fairly clear set of legal principles that ensure that the courts maintain a consistent approach, which is especially important to federal offences dealt with in the courts of all Australian jurisdictions.

45. One of those principles, of course, is the importance of deterring other people from becoming involved in the importation of massive quantities of prohibited drugs, especially drugs such as methamphetamine or Ice which are often seriously detrimental both to the users and to those who come into contact with users. I accept the Crown's submission that the sentence I impose "must be of such a severity that it will act to deter others from engaging in illicit drug activities of this nature", especially by making it clear that the potential financial rewards are outweighed by the risk of severe punishment.

46. One would imagine that a sentence focused on general deterrence would be sufficient to provide personal deterrence as well.

47. I am satisfied that in this case a significant custodial sentence is inevitable.

48. Counsel for Mr Igwebuike conceded that since the matter went to trial, Mr Igwebuike is not entitled to any discount for a guilty plea; on the other hand, counsel pointed out that Mr Igwebuike made a substantial number of significant admissions which considerably shortened a trial initially expected to involve 57 Crown witnesses, many of whom are based interstate, and three to four weeks of hearing. Instead, as a result of the admissions, there was only one witness called by the Crown, and the evidence in the trial ran for only four days.

49. I also accept the Crown's proposition that the evidence of Mr Igwebuike's physical involvement was overwhelming, but I do not think that this excludes consideration of the value of his concessions, even if only in assessing remorse and his willingness to facilitate the course of justice in ensuring that the jury was not overwhelmed by evidence of undisputed matters and was able to focus on the real issues in this trial.

50. It seems to be accepted that Mr Igwebuike will be deported when he is released from prison, and that this fact is irrelevant, at least, in the determination of whether to set a non-parole period and the length of any such period. (R v Thi Bach Tuyet Do [2005] NSWCCA 258). On the other hand, it is also clear that any submission that the deportation of a particular offender would constitute additional or extra-curial punishment would need to be made out by evidence.

51. In this case, there has been no suggestion that deportation itself will be a particular hardship to Mr Igwebuike, given that he was in Australia for only a few months before his arrest, and he appears to have no family, property or professional ties with this country. Accordingly, it seems to me that a non-parole period should simply be set on the normal basis.

52. As to any other kind of extra-curial punishment, defence counsel referred to the case of R v Aniezue [2016] ACTSC 82, in which Refshauge J referred to the "two limbs" of the test for extra-curial punishment, being:

(a) that the detriment suffered by the offender was imposed otherwise than by the sentencing Court; and

(b) that it was punishment as such.

53. In the case dealt with by Refshauge J the offender, who was also a foreign citizen studying in Australia, had as a result of his offending forfeited some $23,000 in nonrefundable university fees.

It seems to me, therefore, that the cancellation of Mr Aniezue's student visa, and thus his loss of enrolment in his degree course, and the loss to his family of the fees paid for his study, would all constitute extra-curial punishment.

55. In the current case, given the evidence that Mr Igwebuike's university fees had largely been refunded to his family in Nigeria, the suggested extra-curial punishment would be the cancellation of Mr Igwebuike's student visa and the loss of his opportunity to complete his studies. Counsel for the Crown submitted, reasonably, that anyone intending to come to Australia to study should be aware that the importation of drugs could jeopardise their prospects. In particular, I was not convinced by Mr Igwebuike's evidence during the trial that he had come from a tiny village in Nigeria and did not know anything about drugs.

56. In this case, it was Mr Igwebuike's possession of a student visa and his university enrolment that enabled him to come to Australia and thereby facilitate the importation of the drugs into this country (although there is no suggestion that involvement in the drug importation was in fact his motive for coming to Australia). Thus, this case differs from the case dealt with by Refshauge J, which involved an offence of transmitting indecent communications to a person believed to be under 16, an offence not dependent on an offender's presence in this country. I am un-persuaded that the specific loss of the visa and study privileges that Mr Igwebuike abused by his offending should be recognised as extra-curial punishment so as to have any significant impact on his sentence.

57. As well as referring me to the case of Brown that I have already mentioned, counsel for the Crown pointed out several other cases that might be seen as comparable, including the New South Wales Court of Criminal Appeal cases of Chan, Lo and Nguyen v The Queen [2010] NSWCCA 153; R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106; and Zhang v The Queen [2010] NSWCCA 105. I have had regard to those cases in considering the sentence to impose in this case.

58. Mr Igwebuike, please stand. I record a conviction on the charge of importing a commercial quantity of a border-controlled drug, namely, methamphetamine.

59. I now sentence you to imprisonment for 10 years and 6 months, with a non-parole period of 6 years and 6 months.

60. The sentence will be backdated to 17 October 2015, when you were arrested, and so it will run until 16 April 2026. The non-parole period will run from 17 October 2015 and will expire on 16 April 2022.

61. I am required to explain to you, Mr Igwebuike, the effect of the sentence I have just imposed, which is as follows.

62. You will be required to serve the length of the non-parole period in full-time custody (that is, until 16 April 2022, just under four and a half more years) before you are eligible for any form of release. Towards the end of your non-parole period, you may apply for release on parole, and if you have been of good behaviour during your time in custody, you are likely to be granted release on parole at that point. If you were an Australian resident, that would involve your release into the community, where you would be subject to some continuing obligations, in particular an obligation not to re-offend during your parole period. You could then complete the remainder of your sentence in the community subject to any re-offending, which would likely see you back in prison serving more of your sentence.

63. However, in your case, it is highly likely that if you are released on parole, you will be taken into immigration custody and deported, presumably back to Nigeria. In theory, your obligation to complete the rest of your sentence in the community without re-offending would remain, and if you were to return to Australia within the period of the total sentence, you might find yourself subject to parole obligations. On the other hand, in the more likely event that you do not return to Australia after you are deported, the sentence seems likely to have no further practical consequences for you once you leave Australia.

64. If you have any particular questions about the sentence or the explanation I have just given you, please ask the court or prison officials or Mr Sabharwal, if you get a chance to talk to him. You may sit down.

I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold.