R v Okosi - [2017] NSWDC 400 - NSWDC 2017 case summary — Zoe

NSWNSWDC

R v Okosi

[2017] NSWDC 400

District Court of NSW|2017-09-11

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At a glance

Source facts

Court

District Court of NSW

Decision date

2017-09-11

Catchwords

(b) importing a marketable quantity of methamphetamine and cocaine
(c) attempting to possess a commercial quantity of illegally imported amphetamine and cocaine
(d) dealing with property he believed to be the proceeds of crime

Source

Original judgment source is linked above.

Catchwords

(b) importing a marketable quantity of methamphetamine and cocaine(c) attempting to possess a commercial quantity of illegally imported amphetamine and cocaine(d) dealing with property he believed to be the proceeds of crime

Judgment (19 paragraphs)

[1]

Judgment

HIS HONOUR: Emeke Augustine Okosi stands for sentence as a consequence of pleading guilty to six charges contained in an indictment presented to Conlon DCJ on 7 March 2017. On 7 March 2017 Conlon DCJ set the matter down for sentence on 18 August 2017. It then came before Lakatos DCJ who, knowing that I was part heard in the sentence of a co‑offender, Foster Okolie, transferred the matter to me together with a related sentence matter of Maryann Adaobi Udeh.
The offender Okolie objected to his sentencing hearing be conducted at the same time as that of Okosi and as a result the sentencing of Okosi followed upon the sentencing of Okolie. In essence the sentencing hearing of Okosi, the present offender, commenced on Thursday 7 September and was completed on Friday 8 September when I adjourned the matter to give judgment today. The sentencing of Ms Udeh has been stood over to 22 September 2017.
As I have indicated, the indictment presented to Conlon DCJ on 7 March 2017 contained six counts against the current offender. It also contained one count against Ms Udeh. Despite the fact that the indictment only contained six counts against the present offender he was charged with a large number of offences and a number of the counts in the indictment represent "rolled up charges", for example count 2 rolls up seven offences, and count 3 rolls up five offences, and count 6 rolls up three offences. The offences all relate to the offender's being involved in drug trafficking. The drugs in question are cocaine and methamphetamine. The marketable quantity for each drug is 2 grams. The commercial quantity of cocaine is 2 kilograms. The commercial quantity of methamphetamine is 750 grams.

[3]

Microwave oven consignment

The first consignment of drugs through the post can be shortly described as the "microwave oven consignment". This is a significant consignment because it leads to the offender being charged with count 3 and carries with it a maximum penalty of life imprisonment. On 23 December 2014 the Australian Customs Service examined a consignment from China addressed to a woman named Hannah Neor Scott at an address in Carlingford. The consignment contained 17 microwave ovens concealing methamphetamine within them, the methamphetamine weighing 10.96 kilograms gross with a purity of 80.3% equating to 8.8 kilograms of pure methamphetamine. That amount of pure methamphetamine is more than 11 and a half times the commercial quantity of that prohibited drug. A search of the offender's premises after his arrest led to the police seizing a post‑it note on which were written the details of Hannah Neor Scott, her email address and other information relating to this consignment.
On 24 December 2014 Ms Udeh made a cash deposit of $1,385.20 at the Strathfield branch of the St. George Bank into the account of the freight company to pay for the fees and charges relating to the consignment. The offender in his oral evidence admitted that he had obtained that money from another and passed it on to Ms Udeh so that Ms Udeh could pay the money into the freight company's account. Initially the offender told me on oath that that arrangement was made between him and Ms Udeh as he was required to attend the University of New South Wales on Christmas Eve 2014 in order to sit some form of examination. Eventually the offender admitted that evidence was untrue and that he was not required to attend the University of New South Wales for any purpose on Christmas Eve. The records from the university are before me and they confirm that the offender was last required to be at the university in 2014 during the week ending 12 December 2014.
That was not the only untruth that the offender told me on oath and such matters have led me to consider his evidence extremely circumspectly. He clearly was prepared to lie in order to minimise his involvement in the drug trade. The inference to be drawn is that although the offender was persuaded or agreed to participate in this consignment he sought to hide his role in it by asking his girlfriend to make the deposit at the St. George Bank at Strathfield.
On 29 January 2015 the freight company sent an invoice for $1,157.31 for storage charges. At about 9.23pm on 2 February 2015 the offender had a telephone conversation with an unknown male on a Nigerian telephone service and reported on the progress of the microwave oven consignment including advising the unknown male that he had recently made the payment of the fees and charges of the shipping company and that the consignment had been prepared for collection between that date and the following Wednesday. The offender also told the unidentified Nigerian male that a courier who was supposed to collect the consignment had telephoned the freight company on that day and advised the freight company that he would not be available to have the consignment delivered to him or her and that the courier preferred to have an agent go to pick up the consignment. The SOF is a little unclear as to what actually was being communicated but it is clear to me that the offender was keeping a close eye on this consignment and was involved in planning to take delivery of it.
Unfortunately I must stress some of the details of this consignment in greater detail than might be thought necessary because it has been put to me on behalf of the offender that he was a mere "courier" in this consignment but the SOF tells me otherwise. The SOF tells me that the offender's role was much greater than that of a mere courier. He was intimately concerned in monitoring the consignment and trying to ensure that it was delivered to those involved without the authorities suspecting that the consignment contained illicit drugs.
On 3 February 2015, Ms Udeh made a cash deposit for the $1,157.31 storage fees imposed by the freight company into the freight company's account. On this occasion she made the deposit at the Wetherill Park Branch of the St. George Bank. Again the offender told me in his oral evidence that he was given the money by another and that he passed the money on to Ms Udeh for her to make the transaction.
The offender initially told me in his oral evidence that it was at that stage that he suspected that the consignment contained an unlawful import into this country but eventually in cross‑examination he admitted that he had known of the other's involvement in illicit drug importation since the execution of a search warrant at a place where he then resided on 25 November 2014, that is before the microwave oven consignment arrived in Australia. The "other" to whom the offender was referring was Ifeanyi Ezike another Nigerian national. The offender also told me that Ezike had an English forename "Innocent" and that also involved with was another Nigerian national who he merely knew by his English forename "Hyacinth" or as "Mr P". From the offender's evidence, it would appear that Ezike was the principal for this attempted importation of a commercial quantity of methamphetamine and that Hyacinth was one of his deputies and the offender was dealing with Hyacinth at Ezike's persuasion, behest or request. From the evidence, I conclude that the offender at every material time knew that the microwave ovens consignment contained an unlawful drug importation.
Later, on the afternoon of 3 February 2015, the offender spoke with an unknown female using a Nigerian telephone service confirming that the further payment had been made and discussing the delivery. In that telephone call, the offender indicated that he suspected that there had been some interference with the consignment. Later, the offender told the female how he planned to send someone to collect the consignment but that person had been told it was not something that could be collected, rather something that needed to be delivered. That is completely understandable: it might be very hard to collect 17 microwave ovens. The offender told the female that "they" had been given an address and that someone would be there to sign for it and if those people were asked they would say they did not know what was in the consignment.
On the following day, 4 February 2015, the offender sent a text message to the freight company advising of a delivery address at commercial premises at Forge Street, Blacktown. At about 1.21pm on 4 February 2015, an officer of the Australian Federal Police (AFP) posing as a delivery driver attempted to deliver the microwave oven consignment at the Blacktown address. Nobody was present to sign for it and therefore to receive the consignment. In less than 20 minutes later, Okosi using one of his illicitly subscribed telephone services called the man who was the "delivery driver" to tell him that someone should have been at the address to receive the consignment and as to whether the delivery driver had seen anybody at the premises. The AFP officer, the delivery driver, left the Blacktown address without leaving the consignment behind. At 3.06 pm, the offender had a telephone conversation with an unknown female using a Nigerian telephone service and discussed proposed means for ascertaining whether the consignment had been intercepted by the authorities and how he had been watching during the aborted earlier delivery by the AFP officer at 1.21 pm.
The SOF records some of the exact words used by the offender and it becomes extremely clear from those words that he was acutely aware of the danger presented by the microwave oven consignment being interfered with by the authorities and of the risk to him and to the others involved in the importation of the border controlled drugs.
On the following day, the offender had another conversation with the AFP officer who was pretending to be the delivery driver and, again, asked for the consignment to be delivered, protesting he did not know what the problem was that had affected the delivery on the preceding day. In accordance with arrangements made between the offender and the AFP officer on 5 February, on 6 February the AFP officer again attempted to deliver the microwave oven consignment at the address at Blacktown. Again, no one was present. A short time later, the offender telephoned an unknown female using the Nigerian telephone service and expressed suspicion that the consignment had been intercepted by the law enforcement authorities. Again, some of what the offender actually said is recited in the SOF and it is clear that he was intimately concerned with the security of the consignment.
The microwave consignment was never actually delivered. The pure weight of the methamphetamine which was contained in the consignment had a value of between $2.2 million and $5.28 million. How much the offender may have made if the methamphetamine had actually reached the hands of the consignees is unknown. At one stage, the offender told me that he thought he was receiving one of the 17 microwave ovens but that was at a time when he was protesting that he did not know that the consignment contained an illegal import, and that evidence was untruthful. The offender may have stood to gain a substantial amount of money if the consignment had been successfully delivered. He told me that the only advantage that he obtained was that Ezike had paid off $8,500 of his total student debt owed to the University of New South Wales. As at 25 November 2014, the offender owed to the University of New South Wales, for fees payable to that University, $13,935.89.

[4]

Wedding dress consignment

The next consignment can be described as the wedding dress consignment. It is referable to count 2 in the indictment, importing a marketable quantity of border-controlled drug and also to count 3, attempting to possess a commercial quantity of border-controlled drug. At about 10.25pm on 31 March 2015, the offender spoke by telephone with an unknown male who used a Thai telephone service, regarding a delivery of methamphetamine from China. The coded language used for methamphetamine from China was "Chinese Water". Included in this conversation was a statement by the offender that "Chinese Water" was difficult to sell when it was broken, meaning finely crushed instead of being in large crystals. The offender offered to pay $5,000 for 100 grams and the male with whom he was speaking indicated that he had been paid $5,500 by other people in Australia for 100 grams of "Chinese Water". The offender told the male that he could not pay that amount as the value of the Australian dollar had dropped and that the US dollar had increased in value, viz a viz the Australian dollar. The male said he needed to speak to his "partners" and would talk to the offender on the following day, but that the goods in question should leave China by the following Friday.
On the following day, 1 April 2015, the offender had a further conversation with the unknown male in relation to the logistics of the delivery. The offender sent a text message giving a false name and address for a consignee to the Thai telephone service that had been used by the unknown male. On 6 April 2015, the offender had a further conversation with the unknown male, using the Thai service, regarding the despatch of this consignment, and an inquiry as to how long it would take for the consignment to reach Australia.
The offender used coded language to ask the male whether he had contacts in Brazil and when the man said that he did, the offender asked "why don't we start doing things from there" and asked whether the male had any couriers that could be involved. The male told the offender that he or his partners did but that air parcels sent from Brazil are often scrutinised by the Australian Customs Service. This conversation is referable to subsequent importations by the offender.
On 9 April 2015, the offender received a text message from the Thai telephone service that had been earlier used by the unidentified male, giving the offender details of the consignment tracking number. On that day, the Customs Services intercepted the consignment. It contained a wedding dress containing 290.9 grams gross of methamphetamine with a purity of 80%, representing 232.72 grams of pure methamphetamine. As happened with all of the intercepted consignments, the AFP substituted the methamphetamine with an inert substance once the importation was drawn to their attention by the Customs Service.
The subsequent facts outlined in the SOF detail attempts made by the offender to possess the methamphetamine that arrived in Australia in the wedding dress consignment. The facts detail a number of telephone conversations that the offender had with the unknown male using the Thai telecommunications service and conversations that he had with Foster Okolie who was deputed by this offender to collect the consignment, but who, in fact, recruited another, to whom I shall refer merely as Cyril, to collect the consignment. It is clear that the offender also involved his girlfriend Ms Udeh in the attempt to obtain possession of the drugs which had been imported. The consignment was in fact collected on 28 April 2015 by Cyril.
At about 7.58pm on 28 April 2015, the day on which the consignment had been collected by Cyril at the West Ryde Post Office, the offender had a telephone conversation with Ms Udeh about the consignment. The offender told Udeh that he had given Okolie some of the "drug" for testing but pointed out that the methamphetamine had been crushed, that is, it was not in crystal form. There was then a discussion which obviously concerns price as to whether it should be sold for $375 a "deal" or for $300. The offender went on to advise Udeh that he would pay $15,000 for the next consignment because he had been told that each amount was $5,000 indicating that he expected three amounts of 100 grams of methamphetamine to be delivered on the next occasion. An arrangement was made with the unknown male using the Thai telephone service. There was a further conversation between the offender and the male using the Thai telephone service on 1 May 2015 concerning price. On 4 May 2015 Okosi received three SMS messages from a Thai telephone service advising of an account into which payment should be made for what was obviously had been consigned indirectly to Okosi. On 5 May 2015 the offender had a conversation with the male using the Thai service during which the offender told the unidentified male that he the offender was meant to give him US$12,000 which was $15,100 in Australian currency.
On the day of his arrest the AFP searched Okosi's premises at Carlingford and located the wedding dress consignment, the consignment box, the wedding dress and a bubble wrapped package that had contained the inert substance on which Okosi's fingerprints were located, a black diary with the address details of the wedding dress assignment written on it and a receipt from Worldwide Express for a sender "Umeadi Dave Okechi" and a receiver who is named in the SOF and linked to a Sterling Bank account for A$4,230 which represented 610,000 Nigerian Naira. There was also a Western Union receipt for the same sender to the same receiver on this occasion for 66,500 Thai baht. The name "Umeadi Dave Okechi" was a name contained in a false Nigerian passport that was being used by the offender and it is one of the subjects of count 6 in the indictment.
If the methamphetamine contained in the wedding dress consignment had reached the street market it could have fetched in gross terms between $174,540 and $72,725, or in its pure form between $139,620 and $58,175. Such are not insubstantial returns for an investment of what would appear to have been A$15,000.

[5]

The first teabag consignment

The next consignment is known as the first teabag consignment. It forms part of count 2 in the indictment, importing a marketable quantity of cocaine and part of count 3, attempting to possess a commercial quantity of border controlled drugs. On 5 March 2015 the offender had a Skype messenger conversation with another person in which was discussed using FedEx or regular government mail and in that conversation the offender said "$1,300 for each, so it will be $3,900 for the three". On 9 March 2015 records from Western Union show that Umeadi Dave Okechi, an alias for this offender, transferred A$2,620 to a person in Brazil which may represent some down payment.
There were further Skype conversations between 10 and 12 March 2015 concerning this consignment. It was decided that the consignee should be Stanley Richards of Ryde. On 14 March 2015 the person with whom the offender was dealing advised that there had been a delay due to problems with documentation but the goods should be dispatched on the following Monday. On 16 March 2015 the goods left Brazil for Australia by registered post.
On 7 April 2015 a parcel containing two boxes of 60 teabags each was delivered to the Putney Post Office. It was addressed to Stanley Richards of Ryde and on 10 April 2015 the AFP seized the first teabag consignment. Upon examination by forensics, it was found to conceal a gross total of 322.95 grams of cocaine. The two separate boxes had different levels of purity of the drug, one box had a purity level of 56.3% and the other box a purity level of 57.9%. The total pure weight of the drug was 205.56 grams. Again the drug was substituted with an inert substance.
Paragraphs 92 to 123 of the SOF detail the attempts made by the offender to attempt to possess this cocaine which had been imported into Australia. Eventually the consignment was collected by Cyril who provided a letter of authority in the name of "Stanley Richard" to the Putney Post Office. Cyril had been given this task by Foster Okolie who had been given the task by this offender. Eventually on 21 April 2015 it was discovered that the first teabag consignment did not contain illicit drugs despite assurances from the person in Brazil that it did. At about 11.07am on that day the offender spoke to Ms Udeh and told her that "the devil had done it again" and that Okolie had brought the consignment to him and it was opened but there was nothing inside it. It would appear that the reference to the devil was a reference to the authorities, in particular the police. The offender told Udeh in this conversation that there was supposed to be some illicit drug in each teabag and when he discussed the matter with the person in Brazil on Skype there was some "screaming". In the conversation Okosi expressed his disappointment to Ms Udeh using some very curious language.
Later there was a conversation between this offender and Okolie about the risk being run by importing drugs from Brazil and that consignments from Brazil were often scrutinised and it was preferable to import illicit drugs from China as so much was imported into Australia from China that neither the AFP nor Customs could inspect everything and therefore there was a greater success rate in importing illicit drugs from China.
Had the first teabag consignment reached the offender and reached the market available in this country the gross weight of the drug could return anywhere between $160,000 and $80,000 and if pure could return between $100,000 and $50,000. The offender admitted that he was responsible for that importation just as he was responsible for the wedding dress consignment.

[6]

First and second bangle consignments

The next consignments can be described as the first and second bangle consignments. These are contained in count 2 of the indictment, importing a marketable quantity of border controlled drugs. These were further attempts to import cocaine. The SOF for these consignments commences with some telephone conversations between this offender and an unidentified male using an Indian telephone service. There is reference using code to cocaine and methamphetamine and one code word "Pele" is used to refer both to Brazil and to cocaine. Another code word used for cocaine was "football".
The telephone conversations commenced with a discussion concerning preferences amongst courier companies based on the frequency with which they inspected packages that they carried. Coded language used by the offender appears to me to indicate that he was having success selling cocaine imported from Brazil and the unidentified male then said this: "the prize [sic, scil. price] of football has gone up in our country and we can be you water [methamphetamine] instead...but my plan is that after this dance, we will start the football [cocaine] immediately..." It was discussed that it would take four or five days for cocaine dispatched from Brazil to reach Australia. The male then said that if the offender would pay him within two days of the arrival of the cocaine the male would send another consignment. In another telephone conversation there was a discussion of price.
Late on 7 April 2015 the offender sent two SMS messages to the Indian service which gave false names and addresses of consignees. At about 12.15am on 15 April 2015 the offender spoke via telephone with an unidentified male using the same Indian telephone service who told the offender that the cocaine had been sent and that another consignment would be sent on the following day. The offender told the male that he could send up to ten if it were a shipment but that was not advisable to send up to five bags to one by air and he asked the male if he knew what "the goods" looked like. The male said that he did not have direct contact but his contact spoke to "them" meaning the despatchers.
At about 8.12pm on 19 April 2015 the offender spoke via telephone to an unidentified male using the same Indian telephone service regarding progress of the consignment which the male said was in China and should arrive in Australia on the following Tuesday. They then discussed how the previous one the male had sent to the offender went through Singapore. The offender said that FedEx usually goes through Singapore and the male agreed but said that this one was going instead through China.
On 21 April 2015 Customs officers examined two FedEx parcels sent from India. The first parcel was addressed to a false name and address at Prairiewood and contained bangles containing 127.5 grams gross cocaine with a purity of 23.4% with a net pure weight of 31.75 grams. This is the first bangle consignment. The second parcel was addressed to another false name at Bossley Park and also contained bangles and gross cocaine weighing 145.3 grams with a purity of 24.9% being a pure weight of 36.18 grams. These two consignments, if they reached the market, were worth between $136,400 and $68,200 if they were in their gross form or if they were in their pure form $16,982.50.

[7]

Indian sari consignment

The next consignment is described as the Indian sari consignment. It is the subject of count 1 in the indictment, aiding and abetting an attempt to possess a marketable quantity of cocaine. The offender admitted in his oral evidence that he was the principal behind this consignment. However, he is not charged as a principal, merely charged with aiding and abetting an attempt to possess the marketable quantity of cocaine. He will be sentenced on that basis only. The Indian sari consignment concealed cocaine weighing 196 grams gross with a purity of 75.4% yielding a pure weight of 147.78 grams.
At about 9.46pm on 21 April 2015, the same day as the Customs Service intercepted the consignment, the offender spoke on the telephone with an unidentified male using a known telephone service. That man told the offender that he had "something somewhere" and asked the offender if he knew someone who could "bring it out" for him. This, I assume, means that the unidentified male was asking the offender if he knew somebody who could collect the consignment. The offender said that he could give the male some for testing then get money from him and ask where the thing was. The male responded that it was FedEx and it was from Brazil but was only "200" and it was for a trial. The offender asked the male to send him the tracking details and said he was going to Parramatta at that time and that he will have a look at it and would call the person who would "do it". The offender deputed Okolie to collect the consignment.
At about 10.16am on 23 April 2015 the offender told Okolie about the consignment and Okolie said that the goods were "no good" and that it was "rubbish". Again Okolie advised the offender that it was better to import from China than from Brazil. There were further conversations on the next day between this offender and Okolie about the quality of the imported material and whether it was synthetic or not and eventually Okolie advised the offender by SMS that the goods were "no good".
The approximate value of the actual drugs contained in the Indian sari consignment were for their gross weights between $98,000 and $49,000 and for their pure weight between $73,890 and $36,945.

[10]

Computer charger consignment

The next consignment can be described as the computer charger consignment. It is referable to count 2 in the indictment, importing a marketable quantity of border controlled drugs. This is yet another importation in which the offender was the principal.
The SOF commences with a telephone conversation between the offender and Okolie on 13 April 2015, in which the offender asked Okolie to provide him with details of a contact. Later, on 28 April 2015 the offender spoke via telephone to an unidentified male using a Chinese telephone service whom the offender called "Gozie". Gozie said that he had arrived in Australia the preceding day and that the offender should call him back very soon to discuss things with him. On 1 May 2015 Gozie sent a message asking the offender to call him back. At about 10.51pm on 3 May 2015 the offender spoke with a male using a different Chinese service who told him that he was finished with the thing and needed Okosi to send him a contact. The offender asked the male if he had seen the thing and the male said that he had not but this "guy" constantly sent things to Australia and that the thing was "very good". The male said that the thing was small, 400 and will be sent by air. The offender said he had a contact ready and would send it to the male. The male said he needed the contact now so the thing could be sent by the following day and that they would be sending more in bits of 50 and 1,000 as in that way they could send up to five in one week. I have used the number 1,000 but it seems to me that that well be a typographical error in the SOF and that 1,000 should in fact be 100.
On 4 May 2015 the offender sent an SMS to the Chinese service giving the details of the contact previously supplied by Okolie to the offender on 13 April 2015. On 5 May 2015 the offender sent an SMS to a Nigerian telephone service that read: "pay 50k to dis account 0873011120 eco bank, ezeh anthony tochukwu".
The consignment of computer chargers departed Hong Kong on 6 May 2015. That was the day on which the offender was arrested. On 12 May the Australian Customs Service seized a package from Hong Kong addressed to the person at the address supplied by Okolie to the offender on 13 April 2015 that contained computer chargers and concealed methamphetamine weighing 295.5 grams gross with a purity of 78.9% yielding a net pure weight of 78.97 grams. Had this methamphetamine reached the market in 2015 the offender could have earnt up to $146, 250 if he left the methamphetamine in its gross form or up to $139,890 if he reduced it to its pure form.

[11]

Dealing in the proceeds of crime

The remaining crimes can be shortly described. Count 4 is an allegation that on or about 6 May in Sydney in this State the offender dealt with money which was and he believed to be the proceeds of crime and the time of the dealing the value of the money was more than $10,000, namely A$40,050. That is an offence contrary to s 400.6(1) of the Criminal Code and carries a maximum penalty of ten years imprisonment
On 6 May 2015 the AFP searched the offender's premises at Carlingford after his arrest and seized $40,050 from a backpack in a cupboard located in his bedroom. When asked about the money the offender said that Okolie had given it to him and asked him to hold onto it and that he did not ask Okolie where the money came from. At the time of his arrest the offender had no legitimate source of income. He was enrolled as a full‑time student at the University of New South Wales, having entered Australia on a student visa.
Exhibit M contains three photographs which essentially had been uploaded into the offender's laptop between 4.10am and 4.12am on 28 March 2015. Each of the images was given a name which included the words "moneygood". The photographs show five large wads of banknotes, the banknotes appear to be mainly $50 notes with a small number of $100 notes and a larger number of $20 notes but the notes appear to be predominantly $50 notes. The offender is laying on his back with his head on a pillow, he is talking on a mobile phone held to his right ear, he appears to be unworried, he appears to be content. The only reason for taking such photographs and uploading them with name that he gave to them was to indicate that he was happy to be the possessor of such large amounts of money. The offender told me that at the time the photographs were taken on 28 March 2015 there was about $30,000 in cash contained in the wads of banknotes.
The offender maintained in his oral evidence that the money had been given to him by Okolie. It may well have been but everything points in the direction of the offender being the beneficial owner of the money, if such words are apt to describe the person who was entitled to have the money following upon the sale of illicit goods. The offender could give me no rational explanation as to why Okolie would provide such large amounts of money to him, why Okolie could not look after his own money. In any event it is clear from the next count in the indictment to which I shall soon turn that the offender had illegal drugs in his possession or control and that he was selling them and the only inference to be drawn is that this money not only was the proceeds of crime but that he was the possessor of it and beneficially entitled to it.

[12]

Trafficking

The next count in the indictment is that on or about 6 May 2015 at Sydney in this State the offender did traffic in a substance, the substance being a border controlled drug, namely methamphetamine and cocaine. That is an offence contrary to s 302.4(1) of the Criminal Code and carries a maximum penalty of ten years imprisonment.
At about 9.26pm on 23 March 2015 the offender spoke on the telephone with an unidentified female using a Nigerian telephone service and told her that he was going out. The woman asked the offender where he was going and the offender replied that he was "going to sell drugs". That is a frank admission.
At about 10.27am on 27 April 2015 Okolie asked the offender on the telephone "Where is this thing?" and the offender explained that "it" was outside under a cushion on a long chair when entering the place that led into the kitchen. Presumably that was the offender indicating to Okolie where he might find illicit drugs.
On 5 May 2015 there was a telephone conversation between the offender and Ms Udeh in which the offender appeared to be seeking directions as to where he might hide an illicit substance. Ms Udeh told him to hide it where he hid it before. Ms Udeh told the offender that he had hidden it in the garage. There was then again further discussion which indicated that what was being talked about was a site in which illegal drugs might be stored and found.
At the time of the offender's arrest and the search of his premises the AFP found a white plastic bag under the cushion of a couch by the entrance to the lower floor of the premises containing four plastic bags. One of them contained 117.8 grams gross or 81.1 grams pure cocaine. Another plastic bag contained 52.2 grams gross/45.7 grams pure methamphetamine. The remaining two bags contained approximately 84 grams each of inert substances. The offender's fingerprints were found on the exterior of the white plastic bag that contained the four bags, and two sets of digital scales were discovered, which both tested positive for traces of methamphetamine and cocaine. In other words the offender had illegally imported drugs in his possession, both cocaine and methamphetamine and he clearly did so for the purpose of distributing them in the community for profit. The street value of the methamphetamine gross was up to $34,320 and the value of the cocaine gross was up to $58,900, again indicating whence the large amounts of cash found in his possession may originally have come.

[15]

Personal circumstances

There is little in his personal circumstances to indicate any mitigating factors. The offender's solicitor caused the offender to be interviewed by Mr Anthony Diment, a consultant psychologist, on 24 July 2017 at the Silverwater MRRC. At that time he had been in custody for some 30 months, mainly at the Lithgow Correctional Centre. Some of the history obtained by Mr Diment has been confirmed by the offender in his oral evidence and some of that history has been corrected.
The offender's father was polygamous, he had two wives. From his first wife the offender's father had four children. From his second wife the offender's father had 13 children, the offender is one of those 13 children. The offender's mother was from Ghana. The offender told Mr Diment that his father's first wife always tried to be the more important of the two and that had made things hard for his mother. He referred to his parents often having arguments and of his father beating his mother at times.
His father was a farmer. When the offender was 14 years old his father was killed at the age of 56 in a land dispute. The offender told Mr Diment that everything changed in his life when his father died. His uncles stepped in and seized all his father's valuables. His mother could not do so because she was a migrant from Ghana and had no status in the Nigerian community.
The offender is one of three triplets, he has a brother and a sister who were born at the same time as him. His triplet sister died at some time in the past. When the offender was interviewed by Mr Diment the offender became visibly upset when discussing the deaths of his father and his sister. According to Mr Diment, the offender became teary and downcast.
Nevertheless it appears that the offender did not have unpromising circumstances. Despite the difficulties faced by him and his family as recorded by Mr Diment, the offender with the assistance of his triplet sister completed a law degree in 2006. He then commenced a program in Nigeria called the National Youth Service Programme which he completed in 2008. He was then called to the Bar of Nigeria in 2010.
The offender told Mr Diment that because of his minority cultural background (Ibo) and his speech impediment he missed a lot of job opportunities but he eventually obtained work which helped him to support his mother and his siblings. Mr Diment's history continues thus: "He stated that he suffered sexual abuse from a senior member of the law chambers where he worked. He was someone I learned a lot from in terms of legal knowledge and I admired his achievements. He was the brother of the Head of Chambers. One evening he tried to kiss me and tried to rape me. He didn't manage that but molested me and this continued as he threatened me and I was then fairly naïve and was afraid of losing my job. I also didn't want to report him as homosexuality was illegal then and those laws weren't changed until later. Eventually he was found out and punished severely by the community elders. This resulted in his death and I was also hunted by them but managed to flee to Ghana. My family was threatened as they couldn't find me." The offender, according to Mr Diment, was also visibly upset when describing this episode which Mr Diment categorised as "past sexual abuse."
It is easy to use such terminology. The offender was not a boy or a youth or a naïve young man. He was called to the bar in 2010. He would have been 29 years old then. The advances made to him by the brother of the head of chambers can only be described as unwanted sexual advances, which he was entitled to reject. Why it was that the offender was also pursued by the community elders, who had discovered the homosexuality of the brother of the Head of Chambers is completely unexplained and unclear. Presumably the community elders believed that the offender had consented to some relationship with the brother of the Head of Chambers.
After the offender fled to Ghana there was discussion within the family of sending him to London to undertake further studies and to start a new business. However, he did not end up in London but in Sydney, having been accepted to study International Relations at the University of New South Wales at Randwick. It was for that reason the offender came to Australia on 2 May 2014.
It was while the offender was studying in Australia that his triplet Elizabeth was killed in a road accident. The offender told Mr Diment that "the early demise threw me into despair. I was having ugly nightmares and sometimes then I heard voices." Whether that be true or not I am completely in the hands of the offender as was Mr Diment. However, there is really nothing to indicate to me that the offender should experience anything other than the natural sorrow, upset, and grief at the death of a close and well-beloved member of his family. All of us experience natural grief with the death of grandparents and parents, unfortunately for some, the death of children and also the death of a sibling.

[16]

Psychological evidence

Mr Diment thought that the offender was suffering from severe depression, severe anxiety and moderately high stress. It is not unexpected that anybody who is standing for sentence, especially someone facing the charges that the offender faces, would not be suffering from anxiety, depression and stress. It is also evident that this man with his background being thrown into the Australian prison system, being thrown into the prison system of entirely different culture to one in which he was experienced, being thrown out of chambers into a prison cell for a lawyer, would be extremely upsetting and depressing and the cause of much anxiety. The offender's present circumstances completely explain depression, anxiety and stress.
The diagnosis of Mr Diment is persistent depressive disorder and adjustment disorder. Despite that diagnosis Mr Diment appears to suggest the offender may have some symptoms of post-traumatic stress disorder, PTSD, because he witnessed the murder of his father and he had observed domestic violence between his father and his mother. He attributes PTSD symptoms to the "sexual abuse" which I cannot accept because such matters are unlikely to result in PTSD. Nevertheless Mr Diment would accept that the offender's current circumstances could explain some of his symptoms.
The thesis of Mr Diment is that, despite the offender's anxiety and depression being due to his current situation, there was evidence of a longer standing emotional disturbance and that that and such emotional disturbance had a strong capacity to influence unusual decision-making especially at times when the offender felt trapped and desperately worried about his family and the like.
The offender's evidence is that he turned to this activity when he needed financial assistance and under the persuasion of Ezike. However, if that initially was how he came to be involved, he rapidly took up what he had learnt and became the principal in many of the drug importations. When I discussed this matter with learned counsel for the offender, he advised that it was really not part of the offender's case that what had happened to him in Nigeria had anything to do with the circumstances which had led to his offending behaviour.
I do not accept that anything said by Mr Diment accounts for the offender's criminal behaviour between December 2014 and May 2015. LUNCHEON ADJOURNMENT

[17]

Consideration

When I consider the offender's personal circumstances I find it very difficult to find any fact which could mitigate his offending behaviour. What does however loom large is what I consider to be an aggravating factor. This man came to Australia as a trained lawyer. A lawyer is a person who, by his work and by his conduct, ought uphold the law. A person who practices as a lawyer but does not himself observe the law can only be described as a hypocrite.
In his letter to me on 2 September 2017, which is exhibit D, the offender said this: "With profound respect, I apologise sincerely for the action I took towards solving my predicament, which has offended the feelings and sentiments of the people of this…country. I do not have the slightest of intention to undermine nor degrade the dignity of this great country by [getting] myself involved in these nefarious criminal activities. I was not fully aware of its severe [sic], I never knew that this drugs could be so excruciating on people's life; ever since I have been in prison I now listen to the media and can see how much damages it causes all in the society." I have already expressed my view that the scourge of the drug trade is worldwide, that illicit drugs ruin lives world-wide and it is hard to accept that the offender was not aware of this prior to his being incarcerated.
I assume that the offender meant to suggest that at the time of his offending, he did not have the intention to undermine the law of Australia. However, it is clear from the recorded conversations in February 2015, that he was well aware that he was involved in the illegal drug trade and that he was conscious that the authorities in Australia would try to stop the importation and he was doing his best to thwart the authorities in Australia from intercepting the microwave oven consignment. His actions throughout 2015 up until the time of his arrest, clearly demonstrate an intention to subvert the law of this country, and shows that much of what he said at the commencement of his letter of apology is completely untrue.
He refers to taking to drug trafficking in order to solve his "predicament", but the only objective predicament he has was a debt due to the University of New South Wales. It would have been more acceptable if he tried to obtain work, albeit that he probably was not entitled to work, but to do work which was otherwise lawful than turn to illegal drug trafficking with the prospect of making a lot of money.
Nevertheless, it has to be conceded that the offender is still a relatively young man. He is now 36 years old. He would appear to me to be intelligent and could offer much to his own community back in Nigeria. He is a lawyer there but whether the local authorities in Nigeria would permit him to practise law after the convictions which I must inevitably announce, is a question which I cannot answer. All I can say that if he were trying to practise law in Australia, he would by his conduct have rendered himself completely unacceptable to practise as either a barrister or solicitor.
The inevitable result of the offender's misconduct in Australia is that he will be deported after his release from custody. That is conceded by his lawyer on his behalf. However, back in his community, he could act for the better, could realise that only by obeying the law could he be respected and achieve anything, and perhaps could do something in his native land to improve the prospect of others in a country where famine, depravation and unfortunately ethnic conflict and religious conflict is rife. He can do something positive in his own country. Justice must be tempered with mercy. To give this relatively young man a very lengthy sentence would be crushing to his spirit, soul destroying. Nevertheless he must be punished for his crimes.
Because of the pleading in the indictment, I will deal with this offender in the same way for the Indian sari consignment, as I did for his co-offender, Foster Okolie.
In respect of count 2, importation of both methamphetamine and cocaine in marketable quantities in my view his criminality is at least in the mid-range of seriousness.
In respect of count 3, his involvement in the microwave oven consignment is in my view below the mid-range of seriousness. He was not the principal in the attempt to possess the commercial quantity of unlawfully imported border-controlled drugs, nor was he merely a courier. His involvement is less than mid-range but certainly not towards the bottom end of the range of seriousness.
In respect of his involvement in attempting to possess the drugs in the wedding dress consignment, the first teabag consignment, the children's book consignment and the second teabag consignment are concerned, his criminality was in the mid-range of seriousness.
Because of the amount of money involved, his involvement in knowingly deal with the proceeds of crime, being the sum of $40,050, is below the mid-range of seriousness.
As to count 5 in the indictment, the charge of trafficking, because there is no direct evidence of his supply to others, merely an admission that he wished to do so, yet there is circumstantial evidence to suggest the same, the offence is really because of the deemed nature of his possession of the border-controlled drugs. In my view, that is below the mid-range of seriousness.
In respect of count 6, giving false or misleading information to reporting entities, again the range of material that he used was small, a false passport and associated documentation and the amount that was transferred overseas is relatively small compared with what is often found in such transactions. Again, I would rate that crime as below the mid-range of seriousness.
The offender has not formally provided any assistance to the authorities. He made an oral offer that was not repeated and never confirmed in writing by his lawyers. He was called to give evidence, his barrister suggesting that in doing so, he was providing assistance to the authorities by disclosing the role of Ifeanyi Ezike and "Hyacinth". But it is highly problematic as to whether the assistance given from the witness box last Thursday would be of any practical assistance to the AFP. Rather, the giving of oral evidence by the offender appeared to me to be an attempt to exculpate himself to a large degree, to minimise his role in the various importations and attempts to obtain the imported drugs. But that attempt at exculpation was largely unsuccessful. I do not accept the offender has given any practical assistance to the authorities involved in the current matter.
As I said at the commencement of these reasons, the offender pleaded guilty. As I pointed out, the offender was charged with a large number of offences and that many of the counts in the indictment represent rolled-up charges. The offender pleaded guilty at various times to these offences. As I have mentioned already, the offender was arrested on 6 May 2015. To count 1 in the indictment, the offender pleaded guilty in the Central Local Court on 18 May 2016. As far as count 2 in the indictment is concerned, the offender pleaded guilty to the wedding dress importation, the first and second bangles importations, the first teabag importation and the children's book importation on 18 May 2016 in the Local Court. However, he pleaded not guilty to the second teabags importation and the computer charger importation in the Local Court, and was committed for trial on all those offences. After the offender was committed to this Court, those matters to which he pleaded not guilty were listed for trial on 20 February 2017 with an estimate of four weeks. On 20 February the matter was adjourned to 27 February and on that date, it was stood over to 1 March. On 1 March, the matter was adjourned essentially to 6 March. On 6 March, the indictment appears to have been first presented and because that is the day on which it is dated, and on 7 March as I earlier indicated, the offender pleaded guilty to those offences to which he had previously pleaded not guilty. However, it can be seen that the offender pleaded guilty to the majority of charges rolled up in count 2 in the Local Court.
In respect of count 3, the offender pleaded guilty to his involvement in the microwave ovens consignment in the Local Court on 18 May 2016. However, he pleaded not guilty to his being involved in an attempt to possess the drugs imported in the wedding dress consignment, the first and second teabags assignment and the children's book consignment, even though he pleaded guilty in the Local Court to his role in the importation. The only consistent thing is that the offender pleaded not guilty to the second teabags consignment in respect of both counts 2 and 3. Nevertheless, bearing in mind the gravity of the microwave ovens consignment, I am prepared to look upon the offender's substantive plea of guilty to that offence as governing the rest of the matters contained in count 3.
In respect of counts 4, 5 and 6, the offender pleaded guilty in the Local Court on 18 May 2016.
Because the offender is charged with Federal offences, he is not entitled to the automatic discount for the utilitarian value of his pleas that he would have obtained had he been charged under New South Wales law. The Crown made this submission in respect of the offender's pleas: "The guilty plea is taken into account as a mitigating factor as it demonstrates a willingness to facilitate the course of justice. It must not be taken into account as a mitigating factor for its objective 'utilitarian value' or on the basis that he saves the community the expense of a contested trial. The Crown notes the recent contrary view by the Victorian Court of Criminal Appeal that the utilitarian discount does have application, however the position in New South Wales remains as per Tyler v R (2007) 173 A Crim R 458 at 476. The guideline judgment in R v Thomson; R v Houlton does not apply to Commonwealth offences. However, the general principles stated in that case are generally applicable to sentencing for Commonwealth offences and the range of discount of 10-25% is reasonable to adopt. The Court may specifically quantify the sentence discount for the guilty plea. However, provided the guilty plea is taken into account, there is no requirement to quantify the discount. A significant factor relevant to the extent of the discount or reduction in sentence is the timing of the plea and whether it was entered at the first reasonable opportunity. The strength of the Crown case may be taken into account and the Court may consider whether the offender's plea was motivated by a willingness to facilitate the course of justice or a 'recognition of the inevitable'."
The pleas of guilty entered by the offender in the Local Court do in my view represent his willingness to facilitate the course of justice. It appears to me that his belated guilty pleas result more from confusion about the nature of the facts which he was being asked to admit than to any continuation of the denial of liability for his involvement in these criminal offences. I am prepared to allow the offender a discount in respect of his guilty pleas. I have decided that I should approach the matter in toto rather than try and separate individual pleas of guilty at one stage and guilty until a later stage. I have determined that I should discount the sentences otherwise to be passed upon the offender by 20% to account for his pleas of guilty indicating to an extent his contrition and remorse and also indicating his willingness to facilitate the course of justice.
Were this matter a New South Wales offence I would pass an aggregate sentence and indicate as required by the New South Wales legislation indicative sentences in respect of each count in the indictment. As I understand the federal legislation, I cannot impose an aggregate sentence but must pass a discrete head sentence in respect of each count in the indictment, but I am only required to impose one non-parole period.
That the offender's conduct requires the imposition of a full-time custodial sentence is undoubted. That much has been considered by the offender's counsel. The question is what should be the length of the custodial sentence. Parity questions do arise. I have previously sentenced Foster Okolie essentially to a term of seven and a half years imprisonment in total with a non-parole period of five years. This offender's criminality is much greater than that of Mr Okolie, as has been conceded by his counsel. This offender's criminality requires a more significant sentence than that imposed upon Mr Okolie.
I intend in respect of each count in the indictment to state the head sentence I would pass but for the discount which I have referred, then to apply the discount and then round the head sentence down so that only months are involved, not days and weeks. That is consistent with the practice of courts in New South Wales. I shall later determine when each sentence should commence: 1. in respect of count 1 the head sentence before discount is three years, with the discount the head sentence is two years and four months; 2. in respect of count 2 in the indictment the head sentence is nine years imprisonment but, after discount, is seven years and two months imprisonment; 3. in respect of count 3 in the indictment the head sentence is 10 years but, after discount, becomes eight years; 4. in respect of count 4 in the indictment the head sentence is two years but, after discount, becomes one year and seven months; 5. in respect of count 5 on the indictment the head sentence is two years, which, after discount, becomes one year and seven months; 6. in respect of count 6, the indictment, the head sentence is one and a half years which, after discount, becomes one year and two months.
If my mathematics be correct, which is always problematical, the total of those sentences if wholly cumulative is a head sentence of 21 years and 10 months. Clearly some concurrency is called for, not only because the criminality of much of counts 2 and 3 is similar or related but also because the offences contained in counts 4, 5 and 6 all appear to be derivative upon importing and attempting to possess the marketable or commercial quantities of border controlled drugs. Furthermore, concurrency is called for so as not to impose a crushing sentence that might, rather than assist the rehabilitation of this offender, destroy him. Furthermore, a head sentence of 21 years and 10 months is one that might be imposed in this country for an heinous crime such as murder and no one would suggest that this offender's criminality is anywhere in that category.
Doing the best I can I believe that the total head sentence, albeit it will not be expressed as such, should be 13 and a half years imprisonment. I have come to the view that the non-parole period ought be nine years. The offender was taken into custody on 6 May 2015. The first sentence and the non-parole period will commence on that day. It therefore appears to me that the offender will be in prison for a further six years and eight months in round terms. As I have indicated earlier, it is likely that he will be deported from Australia on his release from custody but if not he will be on parole within Australia for a further four years and six months. [SUBMISSIONS AS TO COMMENCEMENT DATES OF SENTENCES]

[18]

Sentences

Emeke Augusta Okosi, on the charge that between 21 April 2015 and about 24 April 2015 you did aid and abet another person in the attempted possession of an unlawfully imported substance, the substance being a border controlled drug, namely cocaine, and the quantity of the imported drug being a marketable quantity, you are convicted. I sentence you to imprisonment for a period of two years and four months commencing on 6 May 2016 and expiring on 5 September 2018.
In respect of count 2 in the indictment, that between 31 March 2015 and about 12 May 2015 you did import a substance, the substance being a border controlled drug, namely methamphetamine and cocaine, the quantity imported being a marketable quantity, you are convicted. I sentence you to imprisonment for a term of seven years and two months commencing on 6 May 2018 and expiring on 5 July 2025.
In respect of count 3 in the indictment, that between 23 October 2014 and about 6 May 2015 at Sydney in this State you did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely methamphetamine and cocaine, and the quantity attempted to be possessed being a commercial quantity, you are convicted. I sentence you to imprisonment for a term of eight years commencing on 6 November 2020 and expiring on 5 November 2028.
In respect of count 4 in the indictment, that on or about 6 May 2015 at Sydney in this State you did deal with money which was and you believed to be the proceeds of crime and at the time of the dealing, the value of the money was $10,000 or more, namely $40,050, you are convicted. I sentence you to imprisonment for a term of one year and seven months, commencing on 6 May 2015 and expiring on 5 December 2016.
In respect of count 5 in the indictment, that on or about 6 May 2015 at Sydney in this State you did traffic in a substance, the substance being a border controlled drug, namely methamphetamine and cocaine, you are convicted. I sentence you to imprisonment for a term of one year and seven months, commencing on 6 May 2015 and expiring on 5 December 2016.
In respect of count 6 in the indictment, that between about 10 March 2015 and about 14 April 2015 at Sydney in this State you did give information to reporting entities knowing that the information was false or misleading or omitted any matter or thing without which the information was misleading and the information was given or purportedly given under an Act, regulations or rules, you are convicted. I sentence you to imprisonment for a term of one year and two months, commencing on 6 May 2015 and expiring on 5 July 2016.
The total sentence is, therefore, 13 years and six months, expiring on 5 November 2028. I fix a non-parole period of nine years commencing on 6 May 2015 and expiring on 5 May 2024.
Any other orders sought? MAYHEW: Yes, your Honour, just the forfeiture order, the signed short minutes are on your Honour's file, I believe. HIS HONOUR: By consent I make the orders pursuant to s 316 of the Proceeds of Crime Act 2002 of the Commonwealth as per short minutes of order which I have executed and left in the papers.

R v Okosi

At a glance

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Catchwords

Judgment (19 paragraphs)

Parties

Cases Cited (1)

Cited By (1)