R v NTSELE

SONNY NTSELE FILE NUMBER(S) : CCA 60508 OF 2002 M Cinque (Crown) COUNSEL : G Jones (Respondent) Commonwealth Director of Public Prosecutions (Crown) SOLICITORS : Freemans Solicitors (Respondent)

LOWER COURT District Court JURISDICTION : LOWER COURT 02/11/0045 FILE NUMBER(S) : LOWER COURT Shilington DCJ JUDICIAL OFFICER :

IN THE COURT OF CRIMINAL APPEAL 60508 of 2002

SULLY J LEVINEJ BUDDIN J

2 LEVINE J: By notice dated 5 December 2002 the Commonwealth Director of Public Prosecutions appeals against the inadequacy of sentences imposed upon the respondent by his Honour Judge Shillington QC in the District Court on 5 September 2002. 3 For each of the offences under s233B(1)(c) of the Customs Act 1901 of attempting to possess a prohibited import, namely not less than the trafficable quantity of heroin (311.9 grams pure - 394 grams gross) and the offence of possessing prohibited imports, namely not less than the trafficable quantity of cocaine (1,307 grams pure - 2,304 grams gross), his Honour imposed a penalty of 6 years with a non-parole period of 3 years and 2 months, to be served concurrently and to date from 28 March 2001. It will thus be seen that the respondent is presently eligible for release to parole on 27 May 2004. 4 The Director, by letter dated 6 September 2002 (exhibit C3) informed the respondent's solicitors that he was "considering an appeal" against the sentences handed down the previous day. In the course of the appeal no other information was provided to the Court by way of an explanation for the delay between the letter and the institution of the appeal three months later. To that I shall return. 5 An outline of the relevant facts is as follows. On 28 March 2001 members of the Australian Federal Police (AFP) intercepted a number of calls between the respondent and Emmanuel Onyeka. At 9.52am Onyeka called the respondent and, in a coded conversation, said he was attempting to cut something from a package and had already used 7 packets of razors. Onyeka said the package was to yield up to 900. A minute later Onyeka called the respondent again and said he would prepare "all of them" so that the respondent would know "how many there are". At 6.03pm Onyeka called the respondent and informed him that he had not finished preparing the stuff, and that he would be another hour. The respondent stated that he would call in one hour's time. At about 8.00pm the respondent and Onyeka spoke again by telephone and arranged to meet at 9.00pm for the purpose of the respondent obtaining a package from Onyeka. 6 At about 9.25pm on 28 March 2001, members of the AFP observed a blue Mitsubishi Mirage (the respondent's car) parked in Audley Street, Petersham. Shortly after, an AFP member observed a silver Ford Laser enter Audley Street, Petersham from New Canterbury Road, and park behind the respondent's vehicle. The occupant, Onyeka, then alighted carrying a white-coloured bag in his left hand and entered the respondent's car. A short time later, AFP members intervened and found the respondent and Onyeka seated in the car. A white plastic bag was located under the front passenger seat. The bag contained electronic scales and four packages of an off-white coloured powder substance. Subsequent analysis of the contents of the packages revealed that the substance was heroin with a pure weight of 311.9 grams (the gross weight was 394.6 grams). A search of both vehicles located $44,500 in the boot of the Mitsubishi Mirage and $12,000 in the glove box of the silver Laser. 7 AFP members then searched the respondent's premises at 31 Albert Street Burwood and found a quantity of white powder and $125,050 concealed in the chimney. The powder was subsequently analysed and found to contain 1,307.7 grams pure cocaine (2,304.3 gross). 8 Later, in a taped record of interview the respondent told police that he had met an Asian male named Yen at the Bourbon and Beefsteak Bar in Kings Cross in December 2000 and they had become friends. During January 2001 he met a man at a McDonalds and handed him a package on behalf of Yen. Over the time he had known him, Yen would give the respondent money to do favours for him. Yen had given him a total of between $5,000 and $10,000, possibly more. He met Yen on the Saturday prior to his arrest and Yen had asked him to look after some cocaine and $170,000 for him, saying that the Cabramatta police were after him. He asked Yen whether he was interested in buying some heroin from Onyeka and Yen agreed to buy the heroin. He was to meet Onyeka at Petersham and the exchange of heroin and money would occur. He would then take the heroin and meet Yen about 50 metres down the road. Yen would pay him about $5,000 upon delivery of the heroin. 9 The other offender, Onyeka, appeared for sentence before his Honour Judge Solomon in respect of two offences of possessing not less than the trafficable quantity of heroin (the same amount with which the respondent was charged arising from the incident) and cocaine (85.4 grams pure). He was sentenced by Solomon DCJ to a 6 year term of imprisonment with a non-parole period of 3 years and 2 months. 10 Before Solomon DCJ there was agreement between the Crown and the representatives of the offender Onyeka that it was open to his Honour to impose the same sentence in respect of each offence. 11 Solomon DCJ's remarks on sentence are amongst the appeal papers and indeed were part of exhibit A in the proceedings before Shillington DCJ. Appended to the remarks on sentence of Solomon DCJ, and expressly stated to be so, was a statement of facts prepared by Federal Agent Christine Jaeger who gave evidence before Shillington DCJ on the issue of assistance. It is to be noted, and this was raised at the conclusion of submissions before this Court, that in the statement of the facts for the offender Onyeka the present respondent is described as "a person believed to be the principal of a Nigerian drug syndicate based in Sydney" and "a person who entered Australia using a passport in another's name, the visa, issued in Pretoria, issued to yet another person". 12 Solomon DCJ was satisfied that the offender with whom he was concerned, Onyeka, was more than a courier and that he was involved at a low level in the hierarchy of the organisation which was involved in the importation of the heroin. In relation to the offender Onyeka his Honour was satisfied that he gave "significant" assistance to the police following his arrest. His Honour noted that that assistance was of little value to the authorities by reason of, apparently, the material being known to them. His Honour was impressed that the police did not indicate to him that Onyeka's information was in any way false. His Honour found that that offender was entitled to a 25 per cent discount in respect of his assistance. Solomon DCJ, as is apparent from his remarks on sentence, was impressed by the early plea, the absence of prior convictions in the 26-year-old offender, and evidence called by that offender's wife. His Honour was also impressed by the absence otherwise of family support in this country. 13 With respect to the present respondent, Shillington DCJ had no evidence from him. He had the benefit of written submissions from the legal representatives for the Commonwealth DPP and the respondent. Exhibit A was made up of the remarks of Solomon DCJ, the statement of facts and two records of interview, the first conducted on 29 March 2001, reproduced in the appeal book, and the second, which is an induced statement, on 4 October 2001 which is exhibit C1 in the appeal proceedings. His Honour had, as exhibit C2, an Australian Federal Police letter of assistance and a Pre-Sentence report. His Honour also had the transcript of lawfully intercepted telephone conversations. It is apparent that these were admitted without objection notwithstanding that the telephone conversations intercepted commenced on 7 March 2001 and continued to 28 March 2001, the date of the arrest in relation to the two matters the subject of the charges. One explanation for this otherwise curious turn of events is that to the extent that evidence was given before Shillington DCJ about "assistance", it related to the respondent informing the authorities of the meaning of the term "white cloth" which appeared in the first recorded telephone conversation. 14 As to the induced second record of interview, as I perceive the situation, it was admitted before his Honour on the basis of the fact of "assistance" only. Notwithstanding this, it appears that the Crown before his Honour, and indeed before this Court, has sought to make much of asserted inconsistencies between that induced statement and the original record of interview with a view to qualifying, if not totally negativing, the value of any assistance to the authorities. 15 The Commonwealth submits that Shillington DCJ was in error in five respects. First, he erred in sentencing the respondent on the basis of parity with Onyeka. Secondly, he erred in finding that the respondent undertook a similar role in both offences as Onyeka. Thirdly, his Honour gave too great a discount for the assistance provided by the respondent. Fourthly, his Honour failed to comply with the principles enunciated in Pearce v The Queen (1998) 194 CLR 610. Fifthly, he failed to give consideration to the appropriate non-parole period to be set in respect of the respondent.

As the Crown asserts, his Honour did not specifically state that he was seeking to sentence the respondent to achieve parity with Onyeka. It appears that his Honour simply adopted the view of Solomon DCJ that the drugs the subject of the charges should be regarded in the same light and whilst acknowledging that the amount of cocaine in the case of the respondent was substantially more, his Honour could "see no reason again" why he should "divert" from that same manner of dealing with the two charges as was adopted by Solomon DCJ. The sentences, he said, should be "in conformity with the sentences" imposed by Solomon DCJ on Onyeka. 16 I am of the view that his Honour was in error. That parity may have been a factor in relation to the heroin charge when viewed discretely cannot be in question. It cannot be an issue, however, that there was "no" reason why the cocaine should have been treated on the same basis. There was at least the reason, (bearing in mind the injunctions contained in Wong v The Queen, Leung v the Queen (2001) 207 CLR 584) that the quantities of both the cocaine and the accompanying cash constituted substantially differentiating factors as between the respondent and Onyeka.

Role 17 I have referred above to the conclusion to which Judge Solomon came in relation to the role of Onyeka as having been more than that of a courier, but on the other hand at a low level in the hierarchy that was involved in the importation of the heroin. 18 Shillington DCJ went on to hold: " I see little material about which I could take a different view as to your involvement in this enterprise than that of Onyeka. Again, Solomon DCJ took the view that both the drugs the subject of the charges should be regarded in the same light, that is material involved in this criminal enterprise and although the amount in your case was substantially more I see no reason again why I should divert from that same manner of dealing with these two charges". 19 As was made clear in the hearing of the appeal the Crown had contended that Onyeka had been an intermediary or mid-level participant, a distributor in a syndicate to arrange the ongoing importation of narcotics. Judge Solomon found him to be less than that. In the instant matter the Crown had submitted to Judge Shillington that the version given by the prisoner of his involvement in the importation suggested that his role was to be regarded as an intermediary or mid-level participant. The Crown sought to persuade his Honour that he should not be so regarded and if the prisoner wished to raise any matter in mitigation the onus was upon him to establish it on the balance of probabilities (R v Olbrich (1999) 199 CLR 270). 20 Be that as it may, the nub of the Crown submission both to his Honour Judge Shillington and to this Court (leaving aside the curious position of the induced statement) was that the amount of cocaine and money in the respondent's possession alone supported a view that the respondent occupied a higher place in the hierarchy. Further, the material in the transcripts of the telephone calls between 7 March and 28 March 2001 (admitted by consent) indicated that the respondent was an organiser in the supply of drugs. By way of example the Crown points to the following (the person "Dion" being the respondent):

(i) On 7 March 2001 a caller asked the respondent to supply a sample of some "white cloth" and "please let it be in good condition". Later that day a caller told the respondent "Man, they said that the thing is not good".

(ii) On 8 March 2001 the respondent was asked to bring a sample of "white cloth".

(iii) On 14 March 2001 the following conversation occurred: Male: "We are expecting this weekend, I told him that it all depend on my discussion with you". Dion: "Tell him to exercise some patience after this weekend let see if this people will take more things so that the money will rise a bit more…Anyway let me meet this people today and find out if they are interested at all…"

Male: "So the people will take in large quantity?" Dion: "If they like it, they may take all of them…but they don't want that of "Pale" all they want is the white one. If they may find it useful they may take it all".

(iv) On 19 March 2001 the following conversation occurred: Male: "The people I gave 30 the other time, they said that the(y) need half bag, but they said that they will buy three one I tell them that I will tell the owner to see if he will agree". Dion: "No way, they must be joking, you better give them back their money, I don't trust them".

(v) On 23 March 2001 the respondent said to a caller: "The most important is to make sure that it is a good one, because this people prefer the white one, they are not like those (amateurs) people you are dealing with. You will see it yourself, all you have to do is give them sample, if the(y) approve it, no matter the quantity they will pay you cash. The whole thing will happen in your presence, after you chose (sic) your best way to compensate me". 21 On the issue of "role" his Honour had the telephone intercepts, he had the quantum of drugs and money in relation to the cocaine, he had the original record of interview in which there is a passing reference to a Mr Yen, and yet came to the view, the Crown complains, that the respondent enjoyed the status of that enjoyed by Onyeka as found by Judge Solomon. 22 For myself I am persuaded that contrary to what his Honour the learned sentencing Judge remarked, there was material on which he could find beyond reasonable doubt that this respondent was an organiser in the supply of drugs at a level higher than that of the co-offender Onyeka. There was in my view a risk that the sentencing Judge in the position of Shillington DCJ would view the whole affair holistically, ignoring the difference, at least in the quantum of drugs and money found in the respondent's premises, in the face of some perceived unity of conduct of both offenders in relation to drugs merely identified as heroin and cocaine.

Discount for assistance 23 His Honour came to the view that he should not differentiate between the respondent and Onyeka in relation to the discount for assistance and proposed the same 25 per cent reduction. The reasons are by no means clear as to why his Honour took this course. 24 His Honour had exhibit C2, the "letter of assistance" which, shortly stated, identified the prisoner as having assisted with the definition of some terms including "white cloth" which confirmed suspicions already gained through police intelligence. Further, the letter referred to the respondent subsequently refusing to sign an induced statement that had some connection with the arrest of a person in Perth. No future assistance was sought and the conclusion of the authors of the letter, who included Federal Agent Jaeger, was that the information provided to the Australian Federal Police had not been of assistance in the present matter or any other matter. It is to be noted however that that conclusion was reached by taking into account the prisoner's refusal to sign the induced statement on the one hand, but on the other, taking into account his mere definition of certain terms which were of intelligence value. 25 In the proceedings on sentence Agent Jaeger was cross-examined by counsel for the respondent. The tenor of her evidence overall was in conformity with the opinion expressed in her letter, namely that what the respondent did amounted to no more than confirmation of suspicions. To that extent it was of value to the police. Further, notwithstanding what was implicit in the question put to the officer that the respondent was wiling to give further assistance, any such assistance was not required. 26 Viewing this evidence by itself and especially leaving to one side the use made of the prisoner's declining to sign the induced statement which contained inconsistencies, a view can be formed that his Honour was in error, absent any express reasons to the contrary, in coming to the conclusion that his assistance was the equivalent of that Onyeka had given as had been identified by Solomon DCJ, and which warranted a discount of 25 per cent. Again for myself, I can see no basis for his Honour coming to any such view. There was no basis for his Honour coming to the view that the assistance that he gave was "significant". Leaving aside any question on which the Crown purported to rely in terms of the respondent's veracity, I agree with the Crown's submission that this case did not warrant a discount anywhere within the range, for example, referred to in Reg v Barrientos [1999] NSWCCA 1. The Pearce factor 27 In a sense the "principle" of Pearce had no part to play after his Honour made what I have identified as the error that infected the identification of the role of the respondent, the extent of the discount, and, more fundamentally, the more appropriate sentence for the cocaine offence. As was conceded by the Crown, Pearce does not warrant or make compulsory cumulation or partial cumulation if, in a principled way separate offences have been separately sentenced, the view at the end can be formed that the principle of totality has been accommodated. Here this point was not reached by reason of the errors attending the sentence for the separate charge relating to the cocaine.

Non-parole period 28 Solomon DCJ fixed a non-parole period of about 52 per cent of the head sentence. There was no clear reason in Solomon DCJ's judgment for so doing, but there was certainly a subjective case at a higher level that that which attended the presentation of any case for the present respondent. 29 Shillington DCJ appears to have given no express reasons for departing from the usual range of 60 to 66 per cent for the ratio of non-parole period to head sentence (see Reg v Bernier (1998) 102 A Crim R 44). 30 The view to which I have come is that had an appropriate sentence been arrived at in relation to the cocaine matter, it would not have been inappropriate (no question of parity in the true sense arising) to fix a single non-parole period. 31 Ultimately, it can be seen that the errors identified in the sentencing of this respondent are such as to justify this Court in taking the view that the sentence imposed in relation to the cocaine offence was manifestly inadequate. Using indeed the very authority upon which the respondent relies The Queen v Karacic (2001) 121 A Crim R 7 the range exposed in relation to 1.1 - 2 kilograms of cocaine under the relevant section is generally 7 - 10 years. The maximum sentence provided by the legislation is imprisonment for 25 years and a fine of $500,000.

Crown appeal - delay - discretionary factors 32 An issue arose in this appeal in the light of the delay between notification of consideration of appeal and the institution of it, a period of three months. There has been no explanation. 33 In R v Holder & Johnston (1983) 3 NSWLR 245 Street CJ said at 255 - 56: " An important element in determination of a Crown appeal is the exercise of the residual discretion to dismiss an appeal notwithstanding that error of one or other of the categories mentioned above may have been establish by the Crown. This discretion is a real and live discretion. In practice, it is exercised not infrequently. It enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision. It is in this ultimate discretionary field that considerations of what has been called double jeopardy are of particular relevance. Within this field, also, the court's understandable reluctance to detect manifest inadequacy may be given, so to speak, a second opportunity of operating in the convicted person's favour. I forbear from citing examples of the exercise of this discretion in favour of a convicted person lest in so doing they could be thought to have some controlling significance in a general sense. The discretion, where it is exercised, necessitates an immediate and highly subjective assessment of the circumstances of the case in hand". 34 The respondent also referred to the decision of this Court in Reg v Bardo (unreported, 14 July 1992) in which Hunt CJ at CL said: "The Crown's delay of more than three months in serving its Notice of Appeal has not been satisfactorily explained. We were informed that the Notice of Appeal was filed shortly after the receipt of the transcript of the judge's remarks on sentence. But the Crown always has a representative present at the time when the sentence is imposed, and the decision as to whether a Crown appeal should be taken in relation to that sentence should usually be capable of being made upon the basis of notes taken by that representative. To wait until the transcript becomes available - even when a letter has been sent warning the respondent that consideration is being given to an appeal - is not justifiable except in the unusual case". 35 In the instant case we are not concerned with a respondent who is, pending the hearing of the Crown appeal, not in full time custody (cf Regina v Pham & Ly (1991) 55 A Crim R 128; Regina v Galati [2002] NSWCCA 36; R v Y [2002] NSWCCA 191). 36 We are concerned with a case where there has been an unexplained delay of three months. Viewed alone, it is unfair to a person sentenced to imprisonment to be placed, as far as the system permits, in any doubt as to the duration thereof. The instant appeal arises from a sentencing procedure that was really quite unremarkable. His Honour's remarks on sentence were short, obviously made some impact in view of the letter being sent the next day, and could have been easily compared with those remarks made by Solomon DCJ in March of 2002. It is quite unsatisfactory, as it is unfair to the respondent and offensive to the administration of criminal justice, that the Commonwealth DPP can offer no explanation for this delay. 37 However, it is not a case where merely by reason of that unexplained delay the discretion of the Court should be exercised in favour of the respondent, manifest inadequacy flowing from error by the sentencing Judge having been exposed. The gravity of the offence is something against which this discretionary consideration must be weighed: see Pham & Ly (supra) at 138 per Gleeson CJ. 38 In the end I do not consider that the delay, which can legitimately be made the subject of criticism, entails that this Court should now refuse, as a matter of discretion, to correct obvious and significant sentencing errors. 39 I am of the opinion that errors exposed in the approach to the sentencing exercise on the part of Shillington DCJ warrant the intervention of this Court. The gravity of the disparate offence in relation to the cocaine, and the higher role of the respondent available on the evidence, from the perspective of this Court, in my opinion, warranted a head sentence (taking into account the then applicable allowance for the absence of remissions), of 8 years. A discount allowed in relation to assistance and other matters for which the respondent should get the benefit is appropriate at 20 per cent. 40 There is no basis for departing from the usual proportion of custody to the non-parole period which should be fixed at 60 per cent. This would bring about a head sentence of 8 years and a non-parole period 4 years and 9 months. 41 As I have said, the respondent is entitled to the benefit of the doctrine of double jeopardy which will be reflected in the reduction of the period in custody to 4 years, that is, an increase in the period of custody, originally ordered, of 10 months. 42 The respondent being sentenced separately to 6 years in relation to the heroin offence and 8 years in relation to the cocaine offence, the requirement of totality is satisfied in my view without the necessity for cumulation in whole or in part. 43 The orders therefore are:

1. That the Commonwealth Director's appeal be allowed.
2. That the non-parole period in respect of the first charge in relation to the heroin be set aside, but the head sentence of 6 years be confirmed to date from 28 March 2001.
3. That the sentence respecting the charge in relation to cocaine be quashed and in lieu the respondent be sentenced to imprisonment for a term of 8 years to date from 28 March 2001. In respect of both sentences a non-parole period of 4 years is fixed, accordingly entitling the respondent to be released to parole on 27 March 2005. 44 BUDDIN J: I agree with Levine J.

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