R (Commonwealth) v Wilson

District Court of NSW|2019-10-19

sentence

HIS HONOUR: Kwesi Oben Wilson stands for sentence as a consequence of having pleaded guilty to three charges contrary to the provisions of the Criminal Code (Cth). The first offence to which the offender pleaded guilty was one contrary to s 307.1 (1) of the Code. The offence can be shortly described as importing a commercial quantity of border controlled drug namely, methamphetamine. The maximum penalty for that offence is life imprisonment and or a fine of 7,500 penalty units ($1,350,000). The second offence to which the offender pleaded guilty is one contrary to s 307.5 (1) of the same Code. The offence can be shortly described as attempting to possess a commercial quantity of a border controlled drug namely, methamphetamine. The maximum penalty for that offence is, again, life imprisonment and or a fine of 7,500 penalty units ($1,350,000). The final offence to which the offender pleaded guilty is one contrary to s 302.3 (1) of the Code. That offence can be shortly described as trafficking a marketable quantity of controlled drug, namely methamphetamine and cocaine. The maximum penalty for that offence is imprisonment for twenty-five years and or a fine of 5,000 penalty units ($900,000). These are all extremely serious offences.
The offender was arrested on 26 May 2016 for these offences and has been in custody ever since, a period of almost two years and five months.
The Crown and the offender have agreed on a statement of facts. Unfortunately, the statement of facts amounts to forty-three pages comprising 147 paragraphs and, for example, par 73 contains nearly two pages recording a telephone conversation. Paragraph 75 contains two-and-a-quarter pages again of a recorded conversation. Paragraph 77 contains almost a page of recorded telephone conversation. The agreed facts are unwieldy and impede the ability of this Court to deliver an expeditious judgement. There is a "executive summary" contained the first five pages of the agreed statement of facts but that executive summary is, in itself, insufficient for me to pass sentence upon this offender.

Facts

The offender can be described as a member of a criminal syndicate involved in the importation and distribution of illicit drugs in Australia. I have previously sentenced to other members of the same syndicate. They were Victor Pantaleo (my remarks on sentence can be found at [2018] NSWDC 294) and Fabian Chiagozie (my remarks on sentence for that offender can be found at [2018] NSWDC 298). I sentenced Pantaleo on 20 April 2018 and Chiagozie on 29 May 2018. At one stage, the parties loosely described Pantaleo, Chiagozie and Wilson as "co-offenders." Loosely speaking, they could be seen as such because they committed some common crimes but the vast majority of each of those person's crimes is distinct from the crimes of the other.
Over a period of approximately eighteen months from early October 2014 to the time of his arrest on 26 May 2016, the present offender was involved in the importation of six consignments of illicit drugs into Australia. Those six consignments form the substance of the first offence to which the offender has pleaded guilty. He was also involved in attempting to possess a consignment of illicit drugs which had been brought into Australia at the behest of Pantaleo and that constitutes the second offence to which the offender has pleaded guilty. He was also involved in four discrete offences of trafficking which are combined in the third offence to which the offender pleaded guilty. The first three of those trafficking events are the same as the first three trafficking event to which Chiagozie pleaded guilty. The final trafficking event is the trafficking event to which Pantaleo pleaded guilty.
The executive summary contains this matter which it appears to me to be a fair summary: "4. Wilson was operating as part of a disparate international network, coordinated out of Ghana, who were involved in the shipment of drugs, concealed in small to medium sized packages, from various source countries to Australia. The network methodology would vary but would regularly operate within the following importation approach, (a) A contact in Australia would provide suitable consignee details to an overseas contact; (b) The overseas contact would arrange for the shipment of concealed drugs from a source country, and would then retain the consignment tracking number; (c) Once shipped, the overseas contact would then provide the consignment tracking number to a contact in Australia (often a separate person from the original Australian contact), who would then track the package and arrange for the consignment to be picked up. 5. During the offence period, in relation to seven imported consignments, Wilson variously: (a) Provided consignee details to an overseas contact, including allowing his name and addresses associated with him to be used as consignee details; (b) Received consignment details from both overseas and Australian contacts and arranged for their delivery; (c) Tracked the shipping progress of consignments online; (d) In relation to one consignment, Wilson arranged for a false identification letter to be made in the name of the consignee and picked up the package from Australia Post."

First Offence

I turn now to the first offence. Each of the six importations may be identified by the description of the consignee. The first consignee is identified as John Hence whose ultimate address was 104 Nineteenth Avenue, Hoxton Park NSW 2171. That was the address of the offender prior to his being arrested. Between 30 October 2014 and 1 November 2014, Wilson and a contact identified merely as Nhyera 1, who used a Ghanaian telephone number, had a conversation via WhatsApp. It is clear that the offender provided his own address as one of the possible addresses for the consignee. On 15 November 2014, a consignment was sent from Hong Kong to John Hence at the Hoxton Park address, the content of the consignment was alleged to be a "car DVD." On 18 November 2014, the Australian Border Force, to which I shall refer to hereafter as ABF, seized the consignment. It contained three boxes labelled "DVD Video and Music Entertainment System" which each contained six car seat head rests embedded with video displays. Concealed inside the foam padding of each head rest was a plastic bag containing methamphetamine. The gross total of the methamphetamine was 2,086 grams.
The second consignment may be identified by the name David Bourke. Saeed Mohammed Jamal is a known associate of the offender. On 19 September 2014 as part of an unrelated investigation, Australian Federal Police agents observed the offender and Jamal sitting together in a rented motor vehicle outside the Grand Chancellor Hotel in Adelaide. A subsequent review of the offender's phone found that Jamal's phone number was saved in the offender's phone under the contact name of "Tanko." On 9 October 2014, Jamal remitted $5,433 Australian to a man bearing the surname Livinus in Bangkok. On 13 October 2014, a consignment was sent from Bangkok and the consignor's details matched those of the man Livinus. The consignee was David Bourke at an address in Lakemba, an address that had previously been provided by the present offender. The contents of the package was described as a Sample Chinese Calendar and clothes which were a gift. Intercepted communications tell me that the offender was advised on 14 November 2014 of the name of the consignee and the address given to him as well as the details, as well as the tracking number. That consignment was seized by ABF on 16 October 2014. Concealed inside the framework of a calendar were 622.6 grams of gross methamphetamine. Over the next two days, 17 and 18 October, the offender used his telephone to access the DHL website who was the shipper and conducted tracking searches for this consignment.
The third consignment was addressed to Samuel Johnson at 101-103 Nineteenth Avenue, Hoxton Park, a single storey house located on a double block of land adjacent to the block of land on which the offender's residence was erected. During a search of the offender's vehicle after his arrest, a certified copy of a driver's licence with a picture of an African male was found giving the details of Albert Boateng of 101-103 Nineteenth Avenue, Hoxton Park. On the day after the third consignment was despatched (16 October 2014), an Australian contact Sent to the present offender the DHL tracking number and the name of the consignee and the address and a mobile telephone which was said to belong to the consignee. On 20 October 2014, ABF seized the third consignment. It contained three metal vehicle parts and concealed within one of the metal parts was methamphetamine with an estimated weight of 300 grams. The methamphetamine could only be accessed by drilling into the metal part with a drill. On the same day that the consignment was seized by ABF, the present offender used his telephone to Google search the term "DHL Tracking."
The fourth consignment was addressed Hellen Mathew at an address in Silverwater. The consignment was despatched from China on 1 November 2014. The content of the package was described as a baby car seat. The address at Silverwater did not exist. There was a single level dwelling at the address given but it had been divided into three separate units, each with its own unit number. The phone number of the consignee given on the records of the consignment was not a registered telephone number at the time. On 2 November 2014, ABF seized the fourth consignment which contained a baby car seat. Concealed inside the base of the seat were four packages wrapped in black plastic, that contained a white, crystalline substance. Analysis by the Australian Federal Police confirmed that the substance was methamphetamine with a gross weight of 991.8 grams. On 7 November 2014 between 9.35 and 9.45am the offender accessed package tracking sites and conducted tracking searches for this consignment. He then made telephone calls to a contact number. Most of the calls were missed, either the ones sent by the offender or to the offender. At 12.39pm on 10 November 2014 the offender received a text message from the contact number known as 627 providing details of the consignee and her address. On 12 November 2014 at 7.50am, the offender accessed the DHL website and conducted a tracking search for that consignment.
The fifth consignment was originally destined for Eric Conner but was redirected to Qwesi Oben at Wiley Park. The consignment was sent by ship from Bangkok on 12 July 2015. The content of the package was described as "speakers". The ship arrived in Australia on 4 August 2015. I assume it arrived at the Port of Sydney. The shipment was organised through Clemenger International Freight. On 27 August 2015, the consignee email address was changed from Eric Conner to Qwesi Oben. It was changed by the use of an email address associated with the present offender. A new contact number provided for the consignee was in fact the offender's mobile telephone number or at least, one of them. Qwesi Oben was said to reside at 6/48 Cornelia Street, Wiley Park. The current offender had resided there between 2007 and 2012 prior to moving to Hoxton Park. From January 2012 until his arrest, the offender maintained a lease of the property at Wiley Park but sublet it to associates. The offender continued to have access to the property while it had been sublet by him. The consignment was seized by ABF on 1 September 2015 and there was found 500 grams gross of methamphetamine concealed within speakers.
The sixth and final consignment concerned in the first charge to which the offender pleaded guilty may be identified by the name of Robin Yadav. This is a consignment in which Fabian Chiagozie was concerned which I describe in [8] to [14] of my remarks on his sentence. On 15 May 2016 at 12.05pm, Chiagozie sent an SMS to an Indian telephone number providing an address at 33 Clackmannan Road, Winston Hills. He repeated that address to another contact number in India. On the following day, 16 May, a consignment was despatched from Bombay in India addressed to Robin Yadav at the address in Clackmannan Road. One of the Indian contacts sent Chiagozie an SMS on 26 May 2016 identifying the consignee as Robin Yadav. This consignment was the subject of numerous telephone conversations between Chiagozie and the current offender. At 12.02pm on 26 May 2016, Chiagozie advised the offender using code that some methamphetamine had "Come," and there is a discussion about whether Wilson would take part or all of the consignment. Later on the same day commencing at 5.14pm there was a conversation between the current offender and Chiagozie as to the security of the consignment. This should be noted, "Wilson: Have they left a note? Chiagozie: I don't know. I haven't been there yet. Wilson: Have you checked if they have attempted delivery but nobody was there? Chiagozie: Yes they attempted twice. Wilson: Today? Chiagozie: No. Not today. Two days ago. Wilson: Shit. Why did you let it keep this long? Have been home since two days ago. Chiagozie: They just asked me if you got it. So I decided to ask you. Wilson: I think they have a problem. A time will come they will not get anybody to do this work for them. They will work with other people and get problem. But no one care. Chiagozie: Oh yeah. What do you mean? Wilson: They got someone to do a genuine work for them but they don't want it and are looking for cheap side. Well, how do you end up with those cheap people you are looking for?"
Clearly there was a discussion about others being involved in trying to take possession of the consignment but the offender was protesting to Chiagozie that they were doing it "on the cheap" and that he, the offender, had greater expertise than those others who were seeking to do it "on the cheap." There were then further lengthy conversations in which eventually Chiagozie, who had the tracking number, sent it to the offender so the offender could look into receiving the consignment. A subsequent telephone conversation commenced at 6.37pm when the offender called Chiagozie. They had a conversation about obtaining a false identity card in order to pick up the sixth consignment. Chiagozie asked the offender how much it would cost to obtain a false identity. The offender replied that it was $1,000 as the offender had previously advised Chiagozie. The offender then said this: "They even told me if I don't pay them in advance they wouldn't do it again. Because, I made then do a lot and they weren't paid. Recently when I call they demanded money before they do it. Is all a lot of crazy."
That is clearly an admission by the offender that in the past he had obtained false identities but the supplier of false identities had not been paid and now demanded payment in advance. There was then a discussion about obtaining the money. Chiagozie advised the offender to see his friend "Eddie," who will be referred to later when discussing trafficking, and ask him to obtain $1,000 or at least get $500 from him. Later in the day, Chiagozie sent the offender the name of Robin Yadav and the address at Clackmannan Road, Winston Hills. The offender used that intelligence in his phone to access the IPS web tracking site to track the consignment.
On 27 May 2016 there were a number of conversations. The second conversation involved the offender's asking Chiagozie for the address of the Post Office at Winston Hills where it appears it had been arranged to pick up the consignment addressed to Robin Yadav at Clackmannan Road. About 4.25pm, members of the Australian Federal Police observed the offender attend the Post Office at Winston Hills. At 4.34pm, the offender handed a piece of paper to an Australian Post Office employee that depicted a black and white image of a driver's licence in the name of Robin Yadav of Clackmannan Road. The offender was then observed on closed-circuit television signing for the package in the name of Robin Yadav and received the sixth consignment. At 4.35pm the Australian Federal Police observed the offender walking through the car park in front of the Post Office carrying the consignment which he placed in a 2007 white Toyota Hiace van. The offender was then arrested. However, he then agreed to assist police. Before I go further it should be noted that the sixth consignment contained 395.4 grams of methamphetamine with a purity level of 80.3 per cent giving a total of 317.5 grams of pure methamphetamine.
The assistance which the offender gave to the Australian Federal Police was to deliver a package to Chiagozie which Chiagozie believed was the sixth consignment. An inert substance had been placed in the package to represent the methamphetamine that had been seized by the AFP. At 9.02pm on the same day after meeting with the offender, Chiagozie took possession of the sixth consignment containing the inert substance and was then arrested. That led to his being charged and sentenced.
All told, the offender was involved in importing into Australia 4,895.8 grams gross of methamphetamine or to use another way of saying the same thing, 4.8958 kilograms of gross methamphetamine. The level of purity of only the sixth importation was assayed; that gave a purity level of 80.3 per cent. When I turn to the second charge to which the offender has pleaded guilty, it will be noted that the purity level of the methamphetamine was 79.1 per cent. Such a level of purity is consistent with other importations involving both Chiagozie and Pantaleo. Assuming for the present time a purity level of 75 per cent, 4,895.8 grams gross of methamphetamine would yield 3,670 grams of pure methamphetamine or over three-and-a-half kilograms of pure methamphetamine. It is to be noted that the commercial threshold for methamphetamine is merely 750 grams. There is no dispute that the offender imported more than the commercial quantity of methamphetamine. The total amount of pure methamphetamine imported by Pantaleo was 855.3 grams and the total amount of pure amphetamine imported by Chiagozie was 1,935 grams of pure methamphetamine. The gross amount of amphetamine imported by Chiagozie was 2,417 grams whereas the gross amount imported by the current offender was 4,895,8 grams, a significantly greater amount - double the sum imported by Chiagozie.
At the time of Wilson's arrest, the police searched both his motor vehicle, the 2007 white Toyota Hiace van registered number BT30ZT, and his home address at Hoxton Park. There were a large number of items that were related to his drug importation and drug trafficking ventures. They included three prepaid SIM cards still in their original packaging, payment for a Sea Freight consignment dated 25 January 2016 in the amount of $1,666.50 paid by the offender at an address provided in Lakemba: That is not the subject of any consignment dealt with in the agreed facts. There is the certified copy of the driver's licence in the name of Albert Boateng, to which I have referred, and having an alternative address at 20 Kendee St, Sadlier. There were various handwritten notes containing addresses, telephone numbers and bank account details. There was a Kennards Storage Hire business card with the details of the sixth consignment written on it. There was a handwritten note containing the consignment which has been identified in the facts as consignment seven which relates to the second offence to which the offender pleaded guilty. There were thirty money order receipts with dates between January and May 2016 from the offender to various persons in Ghana amounting in total to $11,438.40, clearly being money that he remitted to Ghana and since it is in the agreed facts, one must believe it relates to proceeds from the drug importation. It could have been to repay or pass on the proceeds of sale to the actual exporters of goods. It may have been merely to support or assist others. I do not know. At his home there were also handwritten notes containing names and phone numbers, a consignment note bearing the date 6 January 2014 for a package sent from the Netherlands addressed to Obed Wilson labelled as clothes and two money order receipts from 2014 from the offender sent to persons in Nigeria and Ghana amounting to $1,135.84.

Second offence

The second charge to which the offender pleaded guilty, attempting to possess a commercial quantity of border controlled drugs is, as I have said, an importation that was arranged by Pantaleo. I deal with that in [7] to [13] of my remarks on sentence for Pantaleo. The importation may be described as "Monitor The Power Supply.' At the relevant time, Pantaleo was in Italy but coordinating the delivery of a consignment from Hong Kong to Sydney. The consignee was Joe Wilson which is a name used by the offender. The address of the consignee was a fictitious address in Punchbowl. The consignment contained 72 shrink-wrapped AC/DC power adapters. Fourteen of those adapters had their interior electrical components removed and concealed inside were rectangular plastic packages containing methamphetamine. In total, there were 1,081.4 grams, gross of methamphetamine with a purity level of 79.1 per cent rendering a total of 855.3 grams of pure methamphetamine. As I said, the addressee "Joe Wilson" is a known alias of the offender. The phone number given on the consignment note was a phone number used by the offender. Again, I am provided with a large number of telephone conversations between Pantaleo and the offender. It is clear that the offender was assisting Pantaleo to get the drug into Australia and when given details of the consignment, he sought to track it down but was referred to a telephone number and given a reference. When he phoned that telephone number there was a spre-recorded response saying, "Thank you for calling the Department of Immigration, Border Control Cargo Support Line." When he heard that, the offender hung up. On 10 December 2015, Pantaleo called the offender. During that conversation, the following was said: "Pantaleo: All right? Pick it up? Wilson: Nah, it wasn't good Vic. Pantaleo: Really? Wilson: They direct me to go to fuckin' bloody Customs fuckin' hell, I'm not going there. They gave me a reference number to call somebody. I call this fuck postal number. Pantaleo: What do you mean? Wilson: I cut the line, I didn't even talk to the person. Pantaleo: But on the thing it said - but on the tracking thing it … did you check ... well can you come over?"
Clearly the offender was aware that he was seeking to bring into this country a border controlled drug and he would have no part in speaking with the Australian Customs Service. It appears also that Pantaleo was quite incredulous that this should have happened.
For the offence of importing that consignment I commenced my sentencing of Pantaleo with a head sentence of eight years imprisonment before any discount. The attempt to possess the same importation carries the same head sentence but it appears to me, as has been very properly put, that this offender's role in the importation was lesser than that of his co-offender, Pantaleo, and therefore, the commencement point of the sentencing exercise must be less than the eight years with which I commenced when sentencing Pantaleo.

Third offence

The remaining offences are the four trafficking events. The first three trafficking events the offender committed with Chiagozie and are described by me in [29] to [30] of my remarks on sentence for Chiagozie. The fourth trafficking offence was one in common with Pantaleo which I described in [14] of my remarks on sentence in Pantaleo. The first trafficking offence occurred between 20 and 22 January 2016 and involved the trafficking of 530 grams gross of cocaine. The second trafficking event occurred between 20 and 24 January 2016 and involved trafficking in 1,000 grams gross of cocaine. The third trafficking offence occurred between 6 and 10 February 2016 and involved an exactly unknown quantity but an admittedly marketable amount of cocaine. The final trafficking event which occurred between 17 and 25 March 2016 involved 485 grams gross of methamphetamine.
A number of the trafficking offences involved a person referred to merely as "Eddie." In the first trafficking event, the offender asked Chiagozie to find and provide him with border controlled drugs so that he could then supply them to a number of unknown persons who had been arranged by "Eddie." During these conversations, code was used, "eyes" was used to refer to methamphetamine and "nose" was used to refer to cocaine. In a later conversation there was specific discussion about providing 530 grams of cocaine. On 21 January 2016, Chiagozie called the offender and the offender told Chiagozie that he went to see Eddie, that Eddie's contact was coming up from Melbourne and he wanted to 2 kilograms of cocaine. That led to an initial supply of 530 grams gross of cocaine and subsequently the provision of 1 kilogram gross of cocaine. The third supply, discussions about which commenced on 6 February 2016 also involved persons arranged by Eddie who wished to be supplied with cocaine. Again, the offender asked Chiagozie to find cocaine for him so that he could give it on to those who desired to possess it.
The fourth supply, that involving Pantaleo, commenced with Pantaleo asking the offender to find for him 500 grams of methamphetamine in order that he could sell it on to other people that Pantaleo had lined up to purchase it. On 17 March 2016 at 5.57pm, Pantaleo called the offender. During the call, the offender confirmed that an unknown person was going to deliver to him an amount of methamphetamine at his place of work and Pantaleo agreed to catch a taxi to pick it up. Eventually the arrangements were changed and the offender dropped off an amount of methamphetamine to Pantaleo's partner at his residence at Russel Lea sometime around midnight on 17 to 18 March 2016. There was later a complaint made by Pantaleo that there were not 500 grams of methamphetamine but only 485 grams of methamphetamine.

Seriousness

In any case of this nature, it is important to consider the role played by the offender in the criminal activity. Care must be taken not to merely affix a label such as "principal" or "middle man" or "courier" or "intermediary." The Crown has made these submissions which in my view are completely appropriate and which I adopt: "... importing itself does not necessarily present a traditional hierarchical operation, with one party directing another, but rather relied upon a collective of trusted people all operating equally or performing similar acts. The offender was an autonomous operator within the network, taking on different roles in relation to imports and trafficking as the need and opportunity arose. By his participation, he not only facilitated the import of the particular consignments for which he was charged, but he has also contributed to the greater overall success of the syndicate which relied on volume and frequency. Premeditation and planning have long been recognised as relevant factors in weighing the seriousness of an offence. Where demonstrated, such factors allow the Court to treat the conduct as a more serious example of the offence charged than would otherwise be the case. Conversely, offences which are unplanned, impulsive, opportunistic and committed spontaneously are generally regarded as less serious than those that are planned."
The conduct here involved could hardly be described as "unplanned, impulsive, opportunistic," or "committed spontaneously." Being involved in drug importation and drug trafficking is necessarily a planned, premeditated activity.
The offender on his own admission was not a user of illicit drugs, he was not a drug addict. Many people become involved in drug trafficking or drug importation to settle debts which they owe to drug dealers or to obtain more money with which to support their illicit drug habits. This offender is not such a person. This offender could only have become involved in this criminal activity for the money that he would make from it, albeit that the evidence from others suggests that he may have used the money altruistically. The fact remains that he committed these crimes to obtain money to satisfy his own desires. That is a form of greed. The offender deliberately broke the law of this country bringing in substances which have a notorious bad effect on those who use them. Illicit drugs cause deaths. Illicit drugs cause serious health problems. Illicit drugs cause serious behavioural problems. Illicit drugs destroy individual lives and careers. Illicit drugs create disharmony between spouses, between parents and their children and between groups in the community.
The offender came to Australia in 2007. Before 2014 when he appears to have taken up drug dealing, the offender must have realised the effect of illicit drugs on our community. It is a notorious fact not only in Australia but throughout the world. Illicit drug use and illicit drug activity is a worldwide phenomenon. It is not limited to Australia. It may be more prominent in affluent communities where persons have the money with which to buy illicit drugs. The motivation for the selling of illicit drugs is to make money. There are large amounts of money to be made in the illicit drug trade. That is why so many people engage in it, in the hope of making large amounts of money to "make their life easier." Generally they cause grave distress to many more people in the community who use illicit drugs. The offender's criminal behaviour is objectively serious and there can be no real excuse for the offender's behaviour.
The second paragraph of the offender's "letter of apology" says this: "I have never used drugs in my life, by while in gaol, I witnessed the toll that ice takes on people's lives firsthand. This can only be described as horrible. I am glad that these drugs were seized as I cannot bear to think about the devastation they will have caused the community. As a husband and a father, it fills me with shame that I know how many families these drugs would have destroyed. I have a wife and two children who I care for."
I take that with a large grain of salt. The offender must have been aware of the devastation illicit drugs cause prior to 2014. One only has to walk around the streets of Sydney to see the devastation that it causes. We have seen the homeless sleeping on footpaths and the like because of the damage done to them by drugs.
The sentencing exercise before me I find quite atypical. There are before me a large number of testimonials, all of which paint the complete opposite of the man who committed the crimes which I have sought to describe earlier in these remarks on sentence. His partner, Deborah Peters said this of her husband: "He has always been a humble, quiet, loving, caring and God-fearing man."
Later she said of him, "Kwesi is my best friend, my partner and my soul mate. I feel loved, safe and secure with him. He is 'Dad' to Keelan [her son]. He was there at soccer training and matches cheering him on and encouraging him."
She then goes on to point out to what extent the offender acted as the father to her son, how he encouraged him to pursue his dreams and how he was such a good role model for her son, helping him to be a "young man of integrity and respect." She said that she found the offender's conduct to be "inconceivable and incomprehensible to me." Ms Peters' son has also provided a testimonial in which he also speaks extremely highly of the offender as his stepfather and as a support to him and encouragement to him and a role model.
There are a number of letters from members of the Asante Association of Australia. There is one from the lady who is accepted as the "Queen Mother" of the Asante community in Australia. She said this: "Kwesi comes from a respectable, law abiding, God-fearing family back home. He is well respected in the community in Kumasi and Accra. He has always been hardworking and honest. Kwesi values family and believes life is a blessing. He is always willing to assist the poor and disadvantaged particularly the elderly and children."
A little later she did go on to refer to the offender as, "a private man [who] rarely discusses his own issues preferring to focus on helping others." Perhaps that is a tacit admission that the offender kept intimate knowledge of himself away from others. However, it is inconceivable that a drug importer and drug dealer, a man deliberately breaking the law of this land importing substances which have such a deleterious effect on the community, could be seen to be respectable, law abiding and God-fearing.
There is also a letter from James Addo, the first chief of the Asante Association in New South Wales and a current chairman of the Council of Elders of the Asante Association in Australia. He said this: "I am astonished by these charges as the young man I know in the Ghanaian community here is a law abiding, diligent family man with a committed faith in God who is respected by the community for his service to others, and he is a mentor to the youth in our community particularly through his involvement in our soccer teams/tournaments."
Again, dealing in drugs, importing drugs and distributing them is completely inconsistent with being an upstanding member of the community committed to assisting the young and disadvantaged. Drugs destroy the young and the disadvantaged. As I remarked earlier before commencing these reasons to counsel, this appeared almost to be a case of Dr Jekyll and Mr Hyde; the man described by his family members and the members of his ethnic community is quite inconsistent with the factual matrix behind the crimes which this man has committed.

Personal circumstances

His personal circumstances are perhaps best set out by a psychologist, Ms Ann Marie de Santa Birgida, a clinical psychologist who interviewed him for one-and-a-half hours and then carried out a half hour of psychometric testing on 12 April 2018. The offender's parents had been living in the Gambia. As I understand it, the offender was born in the Gambia and grew up there as the youngest of five children. Life in the Gambia was very difficult for the offender. It appears that his family belonged to an ethnic group whose numbers are greater in Ghana than they are in the Gambia. His parents were denied permanent residency in the Gambia. They were required to pay a yearly fee for a residency permit and they often struggled to pay that fee. They were treated differently to other members of the Gambian community because they were non-citizens. He completed his education in Gambia and left school at the age of seventeen having completed the equivalent of the Higher School Certificate. He was never suspended at school and was never expelled. He very rarely missed school. Following upon completion of his schooling, he travelled to Ghana because there were more opportunities to find work in Ghana than in the Gambia. He secured an apprenticeship as a builder in Ghana and completed that apprenticeship over four years. He then returned to Gambia where he was self-employed as a builder for between six and seven years. He only stopped working as a builder when his father became too old to continue working and asked his son to take over his work as a fisherman. The offender then worked as a fisherman until applying to come to Australia. The offender's father is alive but is ninety-four years old and in poor health. The offender's mother has died. Two of his siblings live in Ghana and two of his siblings live in the Gambia.
When he was living in the Gambia, an event occurred which caused the offender to fear for his safety. The offender told the psychologist that a boat containing approximately fifty refugees hoping to go to Europe arrived on a beach in Gambia. Police opened fire on the refugees killing forty-four of them. They were later identified as being from Ghana. Two individuals in this group of refugees escaped and told local fishermen about the massacre; one of those was the offender. He went to the beach with others and saw the bodies. He was then arrested by the police and detained for four days and according to the psychologist's history, the offender was "tortured." That may merely mean that he was beaten up by the local police. He then, in fear of his life, crossed the border into Senegal and then from Senegal into Ghana.
He then obtained a holiday visa issued by Australia and came to Australia in 2007. In Australia he applied for a protection visa, that was eventually granted to him and he became an Australian citizen in 2016. He obtained work after his arrival in Australia with American Core Drilling Pty Ltd and then with CompleteCove Aust. Pty Ltd, a company operating from Baulkham Hills. This appears to be a drilling company and there is in evidence a testimonial from the managing director of that company, Mr Alexander Fong and there is also a testimonial from a workmate in that company, Mr Rufus Strickland. Originally, the company was operated by Mr Willie Fong but when he died on Good Friday 2017, the job of managing director was taken over by his brother, Alexander Fong. Apparently, the offender has a steady employment history as a drill operator with that company and was well respected both by his co-workers and his employer. Each of them attest to the offender being loyal and hardworking. Again, being loyal and hardworking, one wonders how the offender managed to become involved in the activities that led to his pleas of guilty. The offender's background in Australia is positive, his background in his native land is positive. Why the offender should have turned to drug importation and drug dealing is quite inexplicable on the evidence before me.
The offender has expressed contrition and remorse. I am completely confident that he is devastated by the effect that this has had on his wife, his step children, his ethnic community, his employer, by all those who care for him and by all those whom he has supported in the past. The shock that each of them has experienced and the disappointment that he has caused them is a matter which must cause the offender great shame. However, what the Court looks for is real contrition and remorse, realisation of the effects that the offender's conduct has on our community, aspects which I tried to stress for his benefit. It is clear that the offender's family members and close associates desire his early release from custody and in particular, his wife and stepson want him back home to continue to provide and care for them. However, my role in representing the community is both to make certain that this offender does not offend again and to dissuade other people from committing similar crimes. I am also required to make the offender accountable for the crimes that he has committed to not only deter him but to punish him for it and I am confident that the offender will not reoffend; there are a number of reasons for that: firstly, he would not be able to bear the shame of again offending and secondly, he would know that he is under observation by police as soon as he is released from custody to ensure that it does not occur again.
The offender pleaded guilty at an early stage in these proceedings and the Crown accepts that he is entitled to a discount of twenty-five per cent for the utilitarian value of his plea of guilty in accordance with the recent decision of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 4. The offender is also entitled to a further discount for the value of assistance that he has given to the Crown; he has provided intelligence to the Crown since his arrest which confirms intelligence already available to it but is of not much assistance and certainly of no evidential assistance. However, he did cooperate with the authorities and helped to bring to justice another offender, Fabian Chiagozie, and for that assistance, the offender is entitled to a discount. I have come to the view that the appropriate total discount to apply in this case is one of 35%.
The offender as I mentioned has been interviewed by a psychologist. The psychologist thought there might be a case of diagnosing post-traumatic stress disorder following upon the circumstances which led the offender to flee from the Gambia. However, she excludes such a diagnosis. The diagnosis that she accepted was depression in the moderate range. There was however no diagnosis of anxiety. The problem with a diagnosis of depression is that one would expect a person in this offender's position, standing for sentence for very serious crimes carrying a maximum penalty of life imprisonment, to be depressed; he would be abnormal if he were not. Depression does not explain why this offender committed these offences. Everything in his background and his community associations indicates that he is a person who ought not to have committed these offences, yet he did. The only reason must be to obtain the wherewithal to maintain his position as a generous benefactor amongst those who he has left behind in Ghana and the Gambia and amongst his present community members. There is no real reason to mitigate the sentence to be passed because of why the offender became involved in drug importation and drug trafficking. There is one thing I should say further about the psychologist's report before I go further and that is this: the psychologist records a history "Background to the Current Offence," contained on the third and fourth pages of her report. That is a completely self-serving statement and not supported by any evidence given by the offender and accordingly is something that I can give no weight to. Furthermore, it is inconsistent with the facts that one can glean when reading the agreed facts and inconsistent with the circumstances of the offender Pantaleo which I have referred to in my remarks on sentence. I give that history no weight.

Sentence

For the importation offence, I commenced my sentence of Pantaleo with a head sentence of eight years imprisonment. For my sentence of Chiagozie for importation, I commenced my head sentence with nine years imprisonment. For this offender, as I have already pointed out, the amount that he imported was twice the amount of Chiagozie and almost five times the amount imported by Pantaleo. The amount of the illicit substance imported, it is a factor to be borne in mind. There was one instance of importation by Pantaleo, five instances of importation by Chiagozie but six instances of importation by the current offender. I start the sentencing exercise for the importation offence with a sentence of twelve years imprisonment. Discounting that by thirty-five per cent but rounded, that becomes a sentence of eight years imprisonment.
For attempting the Monitor The Power Supply importation, I start with a head sentence of six years imprisonment which, after discounting by thirty-five per cent but rounding, comes to a head sentence of four years imprisonment.
For the trafficking offence, I believe it would be appropriate to start with the same head sentence that I started with for Chiagozie and I start with a head sentence of four years. Discounting that by thirty-five per cent, I come to a figure of two years and eight months imprisonment.
If one added the three sentences together, one would come to a total sentence of fourteen years and eight months imprisonment. However, clearly there must be some concurrency, as was the case in both matters of Pantaleo and Chiagozie. I have come to the view that the appropriate head sentence is one of nine years imprisonment. In the circumstances of this case, I find the appropriate non-parole period to be six years imprisonment. The first sentence will start on 26 May 2016, the date on which the offender was taken into custody. The non-parole period will expire on 25 May 2022.
Kwesi Oben Wilson, on the charge that between 20 January 2016 and 25 March 2016 you trafficked a marketable quantity of border controlled drugs namely, cocaine and methamphetamine, you are convicted. I sentence you to imprisonment for a term of two years and eight months commencing on 26 May 2016 and expiring on 25 January 2019.
On the charge that between 27 November 2015 and 30 November 2015 you attempted to possess a commercial quantity of a border controlled drug namely, methamphetamine, you are convicted. I sentence you to imprisonment for four years commencing on 26 May 2017 and expiring on 25 May 2021.
In respect to the charge that between about 14 October 2014 and 27 May 2016 you imported a commercial quantity of border controlled drug namely, methamphetamine, you are convicted. I sentence you to imprisonment for eight years commencing on 26 May 2017 and expiring on 25 May 2025.
I fix one non-parole period as required by the Commonwealth legislation of six years commencing on 26 May 2016 and expiring on 25 May 2022.
I order the drugs be destroyed. I direct that exhibit 2 be sealed up and not to be opened except by a judge of this or any superior Court.

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: 23 September 2019

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