R v Okike

Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Procedure Act 1986 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Firearms Act 1996 (NSW)

Cases Cited: Do v R [2010] NSWCCA 182
Mack v R [2009] NSWCCA 216
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Tran v R [2010] NSWCCA 183

Category: Sentence

Parties: Alphonsus Obinna Okike (the offender)
Director of Public Prosecutions (NSW) (Crown)

Representation: Offender (self-represented)
Solicitors:
T George Solicitor Advocate for Director of Public Prosecutions (NSW) (Crown)

File Number(s): 2023/152940

JUDGMENT – ex tempore revised

1. On 24 February 2025 at Wollongong District Court, Alphonsus Okike said that he was not guilty of three serous charges:

2. Possess a pistol without being authorised to do so: Firearms Act 1996 (NSW), s 7(1);

3. Possess a shortened firearm not a pistol without authority: Firearms Act, s 62(1)(b); and

4. Supply a prohibited drug, namely 170 grams of methylamphetamine: Drug Misuse and Trafficking Act 1985 (NSW), s 25(1).

5. On 26 February 2025 a jury of twelve found him guilty of each count. The matter was adjourned to a date in May for sentence.

6. Okike was not represented at trial. I am not sure why he did not get Legal Aid. On the last occasion I gave him an adjournment to see if he could get legal representation; he was not able to do so. He spoke on his own behalf today.

7. In the Local Court he said he was guilty of possession of 15.5 grams of cannabis subject to s 10(1) Drug Misuse and Trafficking Act, and he is also for sentence for that matter today. In addition, there were a number of matters sent to this Court pursuant to s 166 Criminal Procedure Act 1986 (NSW). I resolved them this morning. With one exception, they were either withdrawn or dismissed. I found him guilty of possession of the ammunition; charged pursuant to s 65(3) Firearms Act. This offence related to the bullets in the pistol, the subject of Count 1. The maximum penalty for that offence is a fine. The possession of a loaded pistol is an aggravating factor when I come to sentence for Count 1. In those circumstances it would be inexpedient to do anything more than record a conviction. I will deal with the matter pursuant to s 10A Crimes (Sentencing Procedure) Act 1999 (NSW). He should not be punished twice for the same facts and circumstances.

8. At trial and today, Okike represented himself. He conducted himself politely and with respect to both Court and the prosecution. He did not waste the Court’s time. He focused his questions and submissions on critical issues. The manner in which he conducted his defence facilitated the interests of justice and this ought to be taken into account in reduction of penalty: Crimes (Sentencing Procedure) Act, s 22A.

9. His early guilty plea for the possession of cannabis offence must also be taken into account in reduction of sentence.

10. At trial the critical issue in relation to each count was whether Okike was in possession of the items found by police. Okike gave evidence at trial. He said that he was not aware of the existence of the pistol and the methylamphetamine that were found in a shoebox in a gymnasium room attached to the house he rented, or of the shortened firearm, which was found in a backpack in the laundry of those premises. The items were subject of evidence at trial. I have had reference to photographs 35 and 36 in Trial Exhibit C. They depict the contents of the shoebox and the shortened firearm.

11. Proof of the prosecution case was aided by the deeming provisions in the Firearms Act, s 4(a) and the Drug Misuse and Trafficking Act*,* s 4. Okike is not to be punished for putting the prosecution to proof, but he cannot get the benefits often given those who accept responsibility for their crimes.

Facts for sentence

9. On 12 May 2023 a number of police attended a home in southern Wollongong to a serve Prohibited Firearms and Weapons Prohibition Orders that had been taken out on 11 April 2022. Those orders took effect the moment they were served: Firearms Act, s 73(2).

10. Okike was the lessee and occupier of the premises. Okike was cautioned by police. He admitted he possessed the cannabis which was subsequently found. Police conducted a search of the premises. What occurred was video recorded.

11. Searching police indicated a “find” in the gymnasium area. A shoebox containing a loaded Smith & Wesson pistol and a quantity of crystalline substance subsequently found to be 170 grams of methylamphetamine were found. Okike was arrested.

12. Police applied for, and were given, a crime scene warrant. They then executed that crime scene warrant. In a backpack in the laundry, they located a cut down rifle, the subject of Count 2.

13. The pistol was a Smith & Wesson self-loading pistol in working order. Its magazine was attached and fitted to the pistol. It contained ten rounds of ammunition: Sequence 7, a matter on the s 166 certificate.

14. The crystalline substance was contained in six bags. It was later analysed and found to be 169.67 grams of methylamphetamine. Although at trial an expert witness, Detective Sergeant Sutherland, said that that weight may in fact include the weight of the bags.

15. The shortened firearm was a 0.22 long rifle calibre Winchester with most of the stock and barrel removed.

16. DNA profiles matching the accused’s profile were recovered from the pistol grip and one of the bags of methylamphetamine. DNA that matched the profile of another known to police person was found on the backpack in which the shortened firearm was found. That person is seen on the video leaving the premises in a hurry just as the police arrived. A number of ‘fit looking men’ were also present. They also left as the police arrived.

17. The house had a well-equipped gymnasium. The box with the pistol and drugs in it were found in that room.

Objective seriousness

18. Counts 1 and 2 each involved significant breaches of the Firearms Act. That Act makes it clear that firearm possession is a privilege that is conditional on the overriding need to ensure public safety. The photographs of the weapons indicate, as clearly as any words, how serious these offences were.

19. Neither weapon was licensed or registered. Their possession posed a significant risk to the safety of the community. The rifle, as modified, had no lawful use. The pistol was found with drugs. It was loaded. The use or possession of such a pistol, particularly connected with criminal activity such as drugs, is one factor that has to be taken into account when assessing the seriousness of the offence. Although it is accepted by the prosecution that there is no other evidence to link this offender with drug supply matters.

20. As is obvious from the evidence at trial and the photographs, these items were not kept safely: Mack v R [2009] NSWCCA 216 at [40]. Each offence was committed without regard for public safety. The simple fact is; if firearms are possessed, they could be used. And if used, are liable to be a great source of danger or damage to the community. Their possession thus creates a risk for everyone in our community, including police officers executing warrants: Do v R [2010] NSWCCA 182; Tran v R [2010] NSWCCA 183.

21. I have no idea of the period of time over which the offender was in possession of the relevant firearms. Given his history and material before me, and where police found the pistol, it maybe it was there for a relatively short period. I have no idea whether other people were involved with that firearm, I suspect strongly that they were. But the presence of Okike’s DNA on the handle and the deeming provisions of the Firearms Act, make Okike responsible for being in possession of what, on any measure, was something that no one in our community would tolerate. It is a matter that could only be met by a custodial sentence of some length.

22. So far as the shortened firearm is concerned, there could be no lawful use for such a weapon. In regard to that matter however, given all the other evidence at trial, and it seems clear to me, on balance, that the most that can be said regarding that item was it was possessed because of the deeming provisions of the Act as there is no evidence to directly associate Okike with that weapon. It is a nasty thing to possess and could only be possessed for the purpose of committing other crimes, but in the circumstances of possession moderate the seriousness of this matter.

Drug supply

23. The indictable quantity of drugs is 3 grams. Okike was deemed to be in possession for the purposes of supply, but there is no evidence before me as to anything other than possession. Although there were indicia of drug supply found in the house, there was also paperwork associated with others who had an association with the house. Other drugs and money were found. Okike was not charged in relation to those matters.

24. While often quantity is one of the factors that have to be considered, here it is only a reference point for my assessment, and it would be less than the 170 grams because the plastic bags were not weighed.

25. Illicit drugs harm our community in many ways. They impact on the lives of many and there is a community interest in just punishment for this offence. But I could not find that the possession was for any lengthy period and the evidence is completely silent on the purpose of the possession which I find is deemed. Despite the quantity I find that this matter falls towards the bottom of the range of seriousness for matters of its type. That same finding is made in relation to the shortened firearm.

26. So far as the pistol is concerned, there is some room for a reduction of its objective seriousness and clear reasons for departure from the standard non-parole period of 4 years imprisonment. But it is still the mere fact of possession of that item, even for a short period, means obviously it is a serious offence; for the reasons I have outlined.

Maximum penalties and non-parole periods

27. The maximum penalties here; for the pistol possession 14 years, standard non-parole period 4 years, shortened firearm 14 years imprisonment, and supplying a prohibited drug 15 years imprisonment, are guides to the exercise of my discretion. But they are only one of many factors that have to be considered.

28. So too is my assessment of the objective seriousness of the offences. It is only one of many factors that I must consider. As McHugh J cautioned in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [54], proper weight must be given to retribution and deterrence, but those important principles are not determinative. A judge must take care not to downplay other important considerations, such as matters raised in mitigation, reformation and rehabilitation.

Case for the offender

29. I have to consider the man who stands for sentence. Okike has some matters on his criminal record, including driving with illicit drugs in his system. But for all intents and purposes I regard him as a man with prior good character. He has spent six days in custody, which will be taken into account. He was subject to strict bail throughout his time on remand, I will take that fact into account because it has restricted his liberty.

30. There is a Sentence Assessment Report before the Court. It notes that he resides in stable accommodation with friends. He came here from Nigeria, in 2016. He tells me he has visa “issues” which meant that he has had trouble finding permanent employment and housing. He does however try as best he can to work in the community generally for cash. He does not have citizenship.

31. He told the parole officer, and I accept, that he has had problems with the use of illicit drugs in the past but there is no indication that he has been using illicit drugs in recent times.

32. The Sentence Assessment Report reports that he has a positive attitude despite the seriousness of the offences and that he was forthcoming; although he remained vague, understandably so, when he was questioned about the other people in his home. He denied any criminal or gang affiliations and there is certainly no evidence of them. He said that he relies on cash employment and sells clothes to make do in the community. He still maintains his innocence and denies any wrongdoing. He is entitled to that view, and he is not to be punished for it. He is assessed as a low risk of reoffending.

33. His immigration status is of no relevance to this determination, but it is obviously a matter that will be of concern to him once he is taken into custody.

Synthesis

34. I have to consider a sentence for each matter. There must be separate punishment for each. I have to structure the sentence such that the total sentence imposed is reflective of all of the crimes committed. I have to set a parole period. There will be a finding of special circumstances given his lack of any significant criminal record, his otherwise good character in the community and the impact of imprisonment on him. When he is granted parole, if he is allowed release into the community, I have reasonable confidence that any lessons learnt from his conviction and time in custody will be well learnt and that it is unlikely he will reoffend.

35. I have to synthesise all of those matters. As I said, for the matters for which he was found guilty, given the items possessed, the maximum penalties involved indicating an attitude of Parliament and the community to such offences, and despite any mitigating circumstances, there must still be custodial penalties.

36. So far as the cannabis is concerned it would not have attracted a custodial penalty. I deal with the matter, given I am imposing sentences, by finding a conviction and dealing with the matter pursuant to s 10A Crimes (Sentencing Procedure) Act.

Orders

37. I have to indicate a sentence for each matter.

38. In regard to the pistol, I indicate a sentence of 3 years imprisonment, non-parole period of 1 year and 7 months.

39. In relation to the shortened firearm, I indicate a sentence of 2 years imprisonment.

40. In relation to the possession of drugs, I indicate a sentence of 1 year and 6 months imprisonment.

41. The aggregate sentence will be 3 years and 9 months imprisonment. To give effect to a finding of special circumstances, there will be a non-parole period of 2 years. That sentence will date from the 25 July 2025. You will be eligible for release to parole after 2 years on 24 July 2027. There will be a parole period of 1 year and 9 months from that date. That is 2 years imprisonment, Mr Okike. You will have to go with Corrections now.

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