R v Udeh

Microwave oven consignment

1. Amongst other crimes, Emeke Okosi was sentenced for attempting to possess a commercial quantity of border-controlled drugs. This has been referred to as the microwave oven consignment. The consignment contained 10.96 kilograms of methamphetamine with a purity of 80.3 per cent, which gives a total weight of pure methamphetamine of 8.8 kilograms. It is clear that in that offending Emeke Okosi involved the current offender, but it is accepted by the Crown that this offender was unaware at the time that she was being used by Okosi for a criminal purpose. Okosi caused the present offender to make a cash deposit of a fairly large sum of money at a St George Bank branch in Strathfield to pay a logistic company for fees and charges involved in that importation. He also used this offender to make a further cash deposit at another branch of the St George Bank over a month later to pay the logistics company their charges for storing the consignment while it was theoretically cleared by the Customs service and held over the Christmas vacation.

Wedding dress consignment

1. The present offender aided and abetted an attempt to possess a marketable quantity of border-controlled drugs in what is known as the wedding dress consignment. On 9 April 2015 Customs officers examined a mail parcel from Thailand addressed to "Peter Clinton" at an address at West Ryde. The consignment contained a wedding dress and concealed methamphetamine weighing 290.9 grams gross with a purity of 80 per cent, being 232.72 grams pure methamphetamine. The Australian Federal Police substituted the methamphetamine with an inert substance and undertook a controlled delivery by returning the consignment to the mail system. Attempts were then made by Okosi and Okolie to obtain what they thought was the methamphetamine in the wedding dress consignment.
2. At about 10.02am on 20 April 2015, Okosi had a telephone conversation with the offender on a falsely subscribed telephone service that she was using. They discussed whether the present offender would call about the consignment and what she would say if she made such a call. Okosi told the offender that he would send her a recharge card for her mobile telephone and that he would "forward those things" to the offender on the telephone she was then using. Okosi told the offender to copy the information he provided to her onto a piece of paper and then delete the text messages from her phone. Okosi told the offender that she should then take the SIM card out of the telephone and insert another SIM card and make the call that was being discussed. Okosi told the offender that he would call her on her lawful mobile telephone to tell her how to conceal her number.
3. At 10.21am on the same day, Okosi made another call to the offender and told her how to change her number to "private number". Okosi then told the offender that he would send "the things" to her and then told her the order in which he would send information to her. Okosi then said to the offender that she was to make a telephone call on behalf of "Peter Clinton", who she was to pretend was her husband, and to inform the person she was calling that she was expecting a parcel from Thailand which she had not yet received and that she had tracked it and could not understand what was happening to the consignment. Okosi made a further telephone call to the offender at 11.20am on that day.
4. Later in the day the offender, calling herself "Rose", telephoned Australia Post and made enquiries in relation to the wedding dress consignment. She said, as she had been told to say by Okosi, that she was calling on behalf of her husband Peter Clinton, as they had not received their parcel from Thailand. She provided to Australia Post the tracking number of the consignment. A worker at Australia Post said that three different people had called about that item and that it had been returned to sender. The worker told the offender that the consignment had arrived in Australia on 9 April 2015 and was delivered to the Potts Hill's delivery centre on 16 April 2015 and had been awaiting collection at the West Ryde post shop on 16 April 2015. The worker at Australia Post then told the offender that the item had been returned to the Customs service to be returned to sender.
5. At about 12.20pm, Okosi and the offender had a telephone conversation in which the offender told Okosi that the consignment had been taken back by the Customs service and returned to sender, and also told Okosi that the worker at Australia Post had told her that someone else had called about the consignment.
6. Eventually the wedding dress consignment was collected from the West Ryde post office on 28 April 2015 by a man I shall merely refer to as "Cyril", who, I understand, has not been charged by the Australian Federal Police. After Okosi had been advised by Okolie that Cyril had collected the consignment, there was further conversation between Okosi and the current offender. It is clear that the offender knew what it was that they were seeking to possess, that is, unlawfully imported border-controlled drugs, and there was a discussion about price at which the methamphetamine could be sold. The methamphetamine was referred to as "eye", part of the code used by this criminal syndicate. Paragraph 66 of the agreed facts are these: "Udeh said Okosi is supposed to tell him the 'eye' is scarce and Okosi said that he told him that he has people who are willing to sell it at 750 each, but the guy did not buy that and said it is 10. Udeh said no and asked Okosi to tell him that it is 11, because the price of 'eye' has gone up. Okosi said [Okolie] will not agree but 'Ugo' does 11 though he has not asked Ugo how much they sell, but he knows that [Okolie] adds an extra 1 to what others sell. Udeh said she got to know 'Michael Jackson' last year and Micheal Jackson says that eye is done for 11. Okosi said when he came last, which was by this time, eye was selling for 12,500 and the price just went down. Udeh said that some people probably brought it in by ship so it became readily available." The offender told me in her oral evidence that the name "Michael Jackson" was a name used to describe another Nigerian national who had attempted to whiten her skin in the same way that the noted celebrity Micheal Jackson had attempted to whiten his skin.
7. At 7.58 on the same evening, there was a further telephone conversation between the offender and Okosi in which Okosi told the offender that what was thought to still be methamphetamine had been beautifully concealed inside the wedding gown. There was then a further discussion in which Okosi discussed price with this offender. If the drugs which had been confiscated by the Customs service and AFP had reached the market for illegal drugs in this country, the members of the syndicate to expect to earn anywhere between $72,725 and $174,540.

First teabag consignment

1. The offender was also involved in what is called the "first teabag consignment". On 10 April 2015 the Australian Federal Police seized the first teabag consignment which had arrived in Australia from Brazil. Upon examination by forensics, the parcel was found to contain concealed within it 322.95 grams of cocaine gross weight with a range of purities between 56.3 per cent and 57.9 per cent. The total weight of pure cocaine was 205.56 grams. As they had with the wedding dress consignment, the AFP substituted the cocaine with an inert substance and returned the consignment to the mail system to carry out a controlled delivery operation.
2. At about 10.02am on 20 April 2015, Okosi and the offender had a telephone conversation in which he asked her if he could give her something to do. The offender told Okosi that he would have to give her a phone credit in order to enable her to do what was to be asked of her. Okosi then asked the offender to again pretend to act as a consignee's wife and the offender agreed to do that. Okosi asked her if she knew how to hide her number when making a telephone call and then told her that he would forward information to her on her telephone and that she was then to write down the information and delete it from her telephone. A little later on the same day Okosi called the offender on her falsely subscribed service and told her that he would send her a re-charge card and that he would forward information to her on the phone she was using. He again told the offender to copy the information onto paper and delete the texts from her telephone and he then again told her to take out her SIM card and use another SIM card to make the call that she had been asked to make. Again Okosi told the offender that he would call her on her lawful telephone service to tell her how to hide her number. At the same time they were also discussing the wedding dress consignment.
3. At 10.33 am on this day Okosi sent a text message to the offender containing the details of the first tea bag consignment, the nominated consignee being Stanley Richard of Ryde. Later in the day the offender, calling herself 'Rose', called Australia Post and made enquiries in relation to the first tea bag consignment. She said that she was calling on behalf of her husband 'Richard', perhaps not realising that Richard was supposed to be the surname rather than the first name of the consignee. She gave the excuse that her husband had gone to Melbourne and she had been asked to collect it and she gave the package number to the Australia Post worker. She was advised by the Australia Post worker that her husband would need to collect it himself from the Putney Post Office and the address of that post office was provided to her. The offender then asked whether the consignment could be collected by somebody else if Richard gave that person authorisation and she was told that 'Richard' would need to fax or email a letter of authority with his signature on it and a copy of his identification if that were to occur. At 12.20 pm the offender spoke via the telephone with Okosi on their falsely subscribed telephones and she informed Okosi the outcome of her conversation with the Australia Post worker.
4. After the information had been imparted, Okosi told the offender that he would need to speak to his 'partner' to figure out the best way to obtain possession of the consignment. Okosi told the offender that he would discuss the matter with Okolie. At about 12.50 pm Okosi again spoke with the offender by telephone and told her that Okolie had asked for the details immediately so they could follow-up the attempt to obtain the consignment. Okosi told the offender that Okolie also said that he would give the details to the man to provide the necessary identification. The offender then told Okosi that her "money is increasing," that her "share is increasing". Okosi told the offender that the call she made was 1,000. However Udeh did not agree with this and said that Okosi "will pay her". Despite what the offender said in her oral evidence, the only conclusion to be drawn from this evidence was a request by the offender for payment for the services she was providing to Okosi for her role in the syndicate's business.
5. At about 9.54am on 21 April, Okolie telephoned Okosi to advise him that the consignment had been collected and asked Okosi to stay at home. A minute later Okosi telephoned this offender and expressed his affection for Okolie, who had collected the consignment. There was also a conversation at that time about what someone who I infer was in Nigeria had told Okosi. Okosi went on to indicate that there was a small consignment of about 200 grams of cocaine and that his friend wanted Okosi to sell it and give him the money. The offender then said that Okosi needed to hurry up and give her "her share of the money for making the calls", and then went on to tell Okosi that he should get work for her to do.
6. At about 10.11 am on this day Okosi told the offender on the telephone that success in importing border controlled drugs was sweet and a successful importation was how things ought to be. The agreed facts go on to say this: "He said he needed to check that 'eye' thing to know if it had come in that morning or was coming that afternoon, that by the grace of God they would be picked up peacefully, and that he had three businesses in a week." I infer that the reference to "three businesses" meant three illegal transactions in the week. The agreed facts then continue thus: "Udeh said Okosi had to give her something from each transaction and that he promised to give her money in Nigeria. Okosi asked Udeh if she was sending the money home, and she answered that she definitely would be and said that Okosi should tell the guy to get her a 'face' for sending the money." The offender told me in her oral evidence that the word 'face' meant identification. The facts which I have just recently quoted clearly indicate that the offender expected to be paid for the services she was providing to Okosi for the work of this syndicate. I accept that she never received any money but she was doing the 'work' in the expectation that she would be paid.

Children's book consignment

1. The next consignment in which the offender was involved is what is referred to as the children's book consignment. On 24 April 2015 members of the Australian Federal Police seized a package that had been sent from Brazil addressed to Peter Clinton at West Ryde. That consignment contained children's books and cocaine weighing 101.9 grams gross with a purity of 77.5 per cent, being a pure weight of 78.97 grams of cocaine. Again the Australian Federal Police substituted the cocaine with an inert substance and returned the consignment to the mail system to conduct a controlled delivery.
2. Three days later on 27 April 2015 at 2.53 pm Okosi told the offender on the telephone that the number that he had sent her was for Australia Post and that he also sent her a name and he wanted to act as if she were calling from Brazil, asking to know if a consignment had been delivered to her uncle or husband with the name and address of Peter Clinton at West Ryde. At 3.05 pm the offender called Australia Post to enquire about an item which had not been delivered to the consignee. She provided the tracking number for the consignment. The Australia Post worker said that the item was awaiting collection at the West Ryde post shop and provided its address. Two minutes later the offender relayed to Okosi by telephone the content of the call that she had made to Australia Post and she passed on to Okosi the address of the Australia Post Office at West Ryde.
3. There was a call later that day at 3.12 pm indicating that the current offender was intimately or closely concerned with the attempted possession of the consignment. There were further conversations on the same topic on 28 April 2015. One of those conversations is summarised thus: "At about 10.56 am, Udeh told Okosi via telephone that she had seen the message Okosi had sent her. Okosi said the person sent him the message and the only time the person was active was when it comes to carrying out drugs because he knows he will make money from selling it. Udeh asked if it was "eye" and Okosi said it was "eye" and "nose", about 300 and 400. Udeh asked if 'Ogbatulenyi's' own was 4, and Okosi said either 350 or 4, thereabouts." The word "nose" is a reference to cocaine. Clearly there was a discussion about the quantity of the drugs it was sought to possess.
4. At 7.58 pm on the same day Okosi told the offender on the telephone that, in essence, the consignment was 'rubbish'. He told her that the consignment was too small and that it was supposed to be about 300 or 400 but it was only eighty six, not even up to 100. During the conversation the present offender said that she was angry about its being such a small amount and asked how someone would allow such a consignment of only 86 grams or whether the consignor was 'just testing the route' with such a small consignment. Again that conversation indicates that the offender was closely concerned with the quantity of the drug being imported.

Second teabag consignment

1. The final consignment with which the offender was concerned is what is referred to as the second tea bag consignment. On 26 April 2015 Australian Customs Officers seized a package which arrived from Brazil addressed to Michael Coopers of Kellyville. The consignment was inspected and found to contain teabags and a concealed amount of cocaine. The gross weight of the cocaine was 337.3 grams with purity levels between 63.6 per cent and 60.8 per cent yielding a pure weight of 212.92 grams of cocaine.
2. Shortly after noon on 5 May 2015 Okosi sent to the offender two SMS messages providing details of the consignment. At 12.18 pm Udeh asked Okosi on the telephone about the information that he had sent to her. She pointed out that there was no tracking number. Okosi told the offender that the information concerning Michael was the original contact and that she was to contact Australia Post and say that she was his wife and they had moved from the address at Kellyville. Okosi then told her that the other address was a new one and he had changed it because there could potentially be a problem with the Kellyville address. Okosi then told the offender to delete the second contact and use the first one as they would not ring the house in any event and he told Udeh to send details for the first contact, and told the offender that he would send details for the first contact.
3. There was then another SMS sent at 2.01. The content of the SMS appears to be a tracking number or some other intelligence related to this attempted importation. There was a telephone conversation between Udeh and Okosi at about 4.18 pm and another one at 4.25 pm. The one at 4.18 pm is the subject of exhibit 2 and the parties agree that the conversation meant that the offender had rung someone in relation to the consignment, relayed the conversation to Mr Okosi and discussed with him the fact that the consignment had been intercepted. The consignment, had it not been intercepted, could have returned the syndicate an amount of anywhere between $84,325 and $168,650.
4. The syndicate essentially fell apart when Okolie and Okosi were arrested on 6 May 2015.

Criminality

1. In essence the offending conduct amounted to making telephone calls to Australia Post in an attempt to obtain possession of what was thought to be illicit border controlled drugs. However the facts that I have recited indicate that the offender knew a lot about the business of this syndicate, that she was counselling and advising Okosi at times and that she expected to be remunerated for the assistance that she was providing.
2. When sentencing Okosi I pointed out that for many of the consignments, and in particular the consignments here referred to, that Okosi was the principal in the importation and attempt to possess the drugs which had been imported but which had been intercepted by the authorities. It is clear that the offender performed the role of an aider and abettor of Okosi. She clearly counselled and advised him. The Crown in its written submissions referred to the offender's "expertise" and "business knowledge" but there was no hard evidence of such expertise or business knowledge other than what she would have picked up during her relationship with Okosi himself. She was not, for example, providing the intelligence to Okosi that Okolie did of which was the best source of illicit drugs overseas and from which country it was the easiest to import border controlled drugs. However she was clearly intimately concerned about the price being made, just as she was concerned about what money she might make from her aiding and abetting Okosi.
3. As one might expect the Crown submitted that the offender's offending fell within the mid-range of objective seriousness and culpability. However the offender, through her counsel, submits that her offending is at the bottom of the range of objective seriousness and culpability. The Crown points to the use of assumed identities such as Rose and Richard's wife but such is common in any activity of this nature, just as the use of illegally subscribed telephones is in this type of case. Her knowledge of the value of a drug may have been gleaned through the general information that many members of the community have and, for example, her evidence concerning the person who was referred to as "Michael Jackson" indicates knowledge arising from a person who behaved unusually in the community and no doubt was the subject of some gossip. I accept that the offender's role was towards the bottom of the range of objective seriousness, certainly not in the mid range.
4. The Crown has submitted that even if the offender suggested that the job she performed was only menial or of limited significance, such as the role of a "courier", that did not necessarily entitle the offender to any degree of leniency. The Crown points out that superior courts have repeatedly stated that illicit drug organisations are only able to prosper because people are ready, willing and able to undertake such roles as were performed by the present offender. The Crown submits that it is a well-established sentencing principle that persons who participate in the illicit drug trade at any level should expect and receive heavy penalties. The Crown relied on the decision of R v Budiman (1998) 102 A Crim R 411, citing with approval the observations of Wells CJ in Le Cerf (1975) 13 SASR 237 at 239. However, it must be borne in mind that this offender did not act as a courier, did not go to any place and collect drugs and move them about. She only made telephone calls that could have been made by any lady that Mr Okosi might seduce into one of his schemes.

Personal circumstances

1. The offender comes before this Court as a lady of prior good character. She has no criminal record in Australia, and I accept that she has no criminal record in her native land. A letter to that effect is before me from the offender's mother. The letter bears date 11 August 2017. It speaks of the offender's prior good character in her native land. It must, of course, be approached cautiously because the maker of the statement cannot be cross-examined and mothers are well known for their partiality to their offspring, whether they be male or female.
2. The offender has a compelling personal case. She completed primary schooling and high schooling in Nigeria and then undertook some tertiary education studies. She worked in the print media, editing news and interviewing persons for press articles. She then worked in her own business, she told me, being making online hotel bookings and bookings for flights; using our terminology, she worked as a travel agent, in essence.
3. In 2008 she moved to the capital of Nigeria, Abuja, to commence to study information technology. She was living with an aunt in the outer suburbs of that city. She met Mr John Okonkwo and commenced a relationship with him, and she fell pregnant to him. They met in March 2008. Their son was born on 27 February 2009. It appears that Mr Okonkwo was not prepared to take responsibility for a pregnant partner and then a young child, and he "vanished" in September 2008, prior to the birth of the boy. The offender survived in Nigeria by doing household chores and similar work for others.
4. Eventually she was reunited with Mr Okonkwo, but only at long distance. In 2011 Mr Okonkwo started sending money to the offender. He had previously come to Australia and he arranged for the offender to migrate to Australia on a spousal visa in May 2013, bringing their son with her. Mr Okonkwo had arranged for the spousal visa to be provided to the offender. She arrived in Australia on 1 May 2013. Mr Okonkwo had remained in Nigeria for a short while, having gone back to Nigeria to assist her to emigrate to Australia. He came back to Australia about a week after the offender and their son arrived in Australia. They married on 29 August 2013 in a civil ceremony. The relationship between the offender and Mr Okonkwo was strained. In December 2013 he took custody of their son and moved him to live with Mr Okonkwo in Canberra.
5. The offender was then living at Roselands. She had found it hard to survive on her own in Sydney. She did an aged care course for which she had to pay over $1,000 in cash. She had a number of various places of abode, either being a lodger or renting premises with another. Essentially, she was performing cleaning jobs at various places, including Sydney airport, between December 2013 and March 2014.
6. In December 2014 the offender met Okosi, which led to her becoming involved in the drug syndicate which has been discussed. That relationship clearly ended on 5 May 2015 when Okosi was arrested. He has been in gaol ever since.
7. Eventually the offender recommenced her relationship with Mr Okonkwo in October 2016 and has moved to live with him and their son in Canberra. The relationship with Mr Okonkwo appears to be strained. When interviewed by Mr Bradley Jones, a psychologist, on 6 July 2017, the offender said this about her relationship with Mr Okonkwo, her lawful husband: "She again [after October 2016] was subjected to psychological and physical abuse. She reports she is still currently in the relationship out of fear he may take their child again, stating, 'He's done it once and he threatens to do so again'." When Mr Jones was discussing with the offender her relationship with her husband, she cried frequently, talking about the abuse to which she has been subjected, which the psychologist thought indicated psychological trauma.
8. In addition to what might well be long-term psychological trauma from her relationship with Mr Okonkwo, the offender has had various physical problems. After the arrest of Okosi and Okolie, the offender had surgery to her right leg. Apparently she was involved in a motor vehicle accident in or around 2004. That was when she was in Nigeria. She had fractures to her right lower tibia and fibula, and symptoms in her right ankle and foot. Apparently the offender developed a chronic infection. That led to her admission to Westmead Hospital in 2015, where she underwent two separate surgical procedure. The procedure was complicated by wound infection, which is not surprising considering the long history of chronic problems. The infection had been the subject of treatment on and off in Nigeria. The infection has been identified as multi-resistant pseudomonas aeruginosa.
9. There is before me a referral letter from the Western Sydney Local Health District, presumably at the Westmead Hospital because its logo appears on the document, bearing date 18 October 2016, to the infectious diseases physician at the Canberra Hospital in Canberra, formerly the Woden Valley Hospital, not to be confused with the former Royal Canberra Hospital. In a letter of 7 December 2016, the infectious diseases physician at the Canberra Hospital advised the offender that she was organising to refer the offender to an orthopaedic surgeon in Canberra. In the letter of 7 December 2016, the offender was told that all her recent blood tests were normal. A bone scan was performed on 5 January 2017, which is reported to show abnormal but nonspecific activity in the distal right tibia and fibula, which suggested some problems with the white cells in the blood. There was also said to be arthritic changes in the right ankle and the middle of the right foot. The orthopaedic surgeon who reviewed the offender was Dr Bryan Ashman. He did not believe there was any sign of osteomyelitis, which indicated to him that "metal work" should be removed from her leg. In other words, the offender must still have in her right leg things such as plates and screws to repair the old fracture. The doctor accepted that the offender could well have continuing pain but no further surgical management was indicated because the ankle joint still appeared to be well preserved.
10. A CT scan had been performed on 17 January 2017 which did not show any evidence of osteomyelitis, confirming Dr Ashman's opinion. The offender told the Infectious Diseases Physician, Dr Kennedy, that her work, which was then in nursing care, and which still is in nursing care, involved prolonged periods of time on her feet and as a result of which her right leg did swell and she developed pain in the ankle. The only suggestion to the offender was that she use stockings and elevate her leg when she was in pain, to apply ice as required and to take regular paracetamol and anti-inflammatories. Apparently the offender no longer takes those drugs but still has symptoms.
11. Towards the end of 2016 or perhaps in early 2017 the offender fell pregnant but miscarried by 1 May 2017. The offender currently works for Rubies Nursing Care in Crace in the ACT. I have been advised by those at the Bar table that that suburb is in Gungahlin. According to exhibit 8 the offender works in the kitchen and laundry and as a cleaner on a casual basis for Rubies Nursing Care and has been so employed since 8 November 2016. She is regarded as a reliable and trusted worker and she does her work extremely well and, according to her supervisor, with "passion". The offender's work is only casual. She works up to three days per week, depending on the availability of shifts. She uses her income to pay for extra lessons for her son who is currently attending the Sacred Heart Primary School in Pearce. She and her husband live in the suburb of Mawson.
12. Mr Jones, a clinical psychologist, diagnoses a major depressive disorder with anxious distress of moderate severity. Mr Jones gave no opinion as to the cause of the major depressive disorder. One would expect any offender standing for sentence to be suffering from some sort of depressive disorder and/or some form of anxiety as a natural consequence of standing for sentence. However, given the offender's background, both her marital problems since 2008 and her physical problems since 2004 and the various roles that she has had to fill to care for her son since his birth in 2009, one would expect the major depressive disorder to be longstanding. One can understand, in those circumstances, her falling under the sway of a man such as Mr Okosi, a barrister in his own country, an articulate young man, and being persuaded to join in his activities in order to belong and to allay symptoms of depression and anxiety.
13. It is hard to see how such a major depressive disorder would be in any way ameliorated or relieved by a custodial sentence. One would only anticipate the offender's mental health to deteriorate with that. The offender, whilst standing for sentence for drug offences, is not a person who has ever consumed either alcohol or any illicit drug. That is very unusual for persons standing for sentence for drug offences. Mr Jones has diagnosed the level - the risk of reoffending as being "low". He also points out that if the offender was given a non-custodial sentence, she would only require "a low level of supervision". Unfortunately there is not before me a pre-sentence report.
14. In summary, this is a lady who is now 35 years' old, who is living with her husband and son in Canberra, who has a job which is a valuable one, looking after the aged and infirm, who has a son who is now eight years old for whom she cares, and has a very low risk of re-offending. Indeed, I suspect that the offender, from the trouble in which she has found herself as a result of being involved with Mr Okosi, would avoid any recurrence of such conduct and therefore the prospects of rehabilitation are, in my view, excellent. Furthermore, a fulltime custodial sentence would not advance either the offender's mental health and the extent to which her physical problems can be addressed by Corrective Services is an interesting question. However, Corrective Services Health are often stretched in their ability to provide treatment for both physical and mental conditions.

Parity

1. The only question of parity which arises is in essence with some of the sentences passed on Mr Okolie. The sequence 9 offence for which Mr Okolie was sentenced was the crime of aiding and abetting the attempted possession of a marketable quantity of unlawfully imported border controlled drugs, namely methamphetamine and cocaine between 3 April and 28 April 2015. Involved in that offence were the wedding dress consignment, the first teabag consignment and the children's book consignment. The total amount of methamphetamine for Mr Okolie was 232.72 grams pure and the total amount of cocaine was 284.53 grams pure. The present offender has, in addition to the three consignments concerning count 9 for Mr Okolie, the second teabag consignment and the amount of pure methamphetamine is the same for both the current offender and Okolie but the amount of cocaine for this offender is 497.45 grams of pure cocaine. For the count 9 offence I sentenced Okolie to three years and nine months imprisonment commencing with a head sentence of five years which I discounted for 25 per cent for the offender's early plea of guilty.
2. Despite the presentation of the indictment before Judge Syme on 1 March 2017 this offender pleaded guilty to the relevant offences in the Local Court on 18 May 2016. It is agreed between the parties that the plea was entered at an early opportunity. The Crown concedes that the offender is entitled to some discount on her sentence because of the co-operation it shows with the administration of justice. This being a federal offence, the utilitarian discount provided to State offenders is not applicable. The plea was entered within nine months of the charge which was laid against the offender. Under State law it would be almost automatic that the offender would be given a discount of 25 per cent for her early plea of guilty. However that principle does not apply to federal offenders.
3. The Crown submits that the sentence passed upon Okolie for count 9 should guide the current sentencing exercise. However, with great respect, it appears to me that the offending of Okolie was much more serious, much more culpable than the offending of the current offender. Okolie was much more concerned with the actual importation of most of the offences committed by Okosi. This offender was not so intimately involved.

Consideration

1. In my view the indicative head sentence for this offence is imprisonment for three years. I am prepared to allow a 20 per cent discount for the offender's co-operation with the authorities, for her willingness to accept responsibility for her crime by pleading guilty at an early stage and for the contrition and remorse which that early plea shows. With the usual rounding down that indicates a head sentence of 28 months' imprisonment or two years and four months' imprisonment.
2. There of course remains the "principle" that offenders who are found to have "trafficked in drugs to a substantial degree" should be sentenced to fulltime imprisonment in the absence of "exceptional circumstances". That those principles have recently been considered in the judgments of EF v Regina [2015] NSWCCA 36 and Robertson v Regina [2017] NSWCCA 5. In that judgment, Simpson JA, with whom Harrison and Davies JJ agreed, discussed the principle at some length. In that case, her Honour reached the view that the principle may be incompatible with judicial sentencing discretion and in that case, the Court of Criminal Appeal accepted that it was appropriate to consider the imposition of an Intensive Corrections Order. The same was the result in EF v Regina.
3. The imposition of an Intensive Corrections Order is available in the current case, pursuant to the provisions of s 20AB(1AA)(a)(ix) of the Crimes Act 1914. There is no ICO assessment before me and if the offender continues to live and work in the ACT it might be impossible for her to comply with any ICO. I have reached the view that, in this case, it is appropriate to impose a suspended sentence pursuant to s 20(1)(b) of the Crimes Act 1914 and in my view, given the special circumstances of this case the whole of that sentence ought be suspended.
4. I turn, as I must, to ensure that I have complied with the provisions of s 16A(2) of the Crimes Act 1914. I have sought at the commencement of these reasons to describe the nature and circumstances of the offence. In essence I have discussed the matters required to be discussed by pars (a), (b) and (c) of the subsection. In the current case there is no actual victim. The victim would be the Australian community if illicit drugs had been imported. It is for those reasons that the Courts view the attempted possession of unlawfully imported drugs with great seriousness. The potential for there to be many victims is great. Illicit drugs ruin lives. Fortunately, because of the intervention of the authorities the damage done to the community has been nothing because illicit drugs have been confiscated at the border. No actual individual has suffered harm. There is no reparation which this offender can actually make for her crime. The provisions of par (fa) of the subsection are not relevant. I have taken into account the fact that the offender has pleaded guilty. I have also referred to the degree to which the offender has co-operated with law enforcement agencies in connection with these offences. That is only that she has pleaded guilty at an early stage. Paragraph (j) requires me to take into account the deterrent effect of any sentence or other order may have upon the offender. I have done so. I have pointed out that the likelihood of her offending again is extremely small, if not remote. I am also required by par (ja) to take into account the deterrent effect for the rest of the community, that is, general deterrence. The fact that I am passing a custodial sentence is a way of enforcing that deterrent effect. I have sought to ensure that this offender is adequately punished for her criminal conduct. I have taken into account her character, antecedents, age and means and physical and mental condition. I have also taken into account the prospects of rehabilitation. I am also permitted under para (p) of the subsection to take into account the probable effect of any sentence or order under consideration would have on the person's family or dependents. I have mentioned her son and her need to care for him. However, the authorities make it clear that I must approach that provision in the same manner that I approach the matter under State law and only if there are exceptional circumstances ought I take the dependency of the son into account. In essence, that could only be a major relevant factor if, for example, the offender was still nursing a child. That is not the case. However, when I consider all of the matters I am required to consider under s 16A I believe the sentence which I have earlier announced is the appropriate one.

Explanation

1. Ms Udeh, I am giving you a suspended sentence. If you break the law during the period of the bond, three years and four months, you will be called up, all right, and you may be dealt with. You may go to gaol, in other words. So the important thing for you is not to break the law. Do you understand? OFFENDER: Yes. HIS HONOUR: If you break the law, you may end up in gaol for the whole of the term.

Sentence

1. Maryann Adaobi Udeh, on the charge that between 3 April 2015 and 5 May 2015 at Sydney in this State you did aid and abet another person in the attempted possession of an unlawfully imported substance, the substance being a border controlled drug, namely, methamphetamine and cocaine, and the quantity imported being a marketable quantity, you are convicted. I sentence you to imprisonment for a period of two years and four months commencing today, 4 October 2017, and expiring on 3 February 2020. Pursuant to s 20(1)(b) of the Crimes Act 1914 of the Commonwealth of Australia, I order that you be released forthwith upon your entering into a recognisance (1) to be of good behaviour for a period of three years and four months and (2) give security for $500. MAYHEW: May it please the Court. HIS HONOUR: Now, Mr Marr, you will have to take Ms Udeh to the registry so she can sign the recognisance. MARR: Yes, your Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 February 2018