Adegoke v R
[2013] NSWCCA 193
•23 August 2013
Court of Criminal Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Adegoke v R [2013] NSWCCA 193 Hearing dates: 27/06/2013 Decision date: 23 August 2013 Before: Basten JA at [1];
Fullerton J at [2];
RA Hulme J at [56]Decision: 1. Leave to appeal is granted.
2. The sentence imposed for the offence the subject of the s166 certificate is quashed. In lieu thereof a fixed term of 3 months imprisonment is imposed to commence from 9 February 2010.
3. Otherwise dismiss the appeal against the sentences imposed in the District Court on 16 December 2011.
Catchwords: CRIMINAL LAW - sentence appeal - attempt to possess marketable quantity of unlawfully imported border controlled drug - proceeds of crime - custody of false instrument - whether sentencing judge erred in sentencing on basis of incorrect maximum penalty - whether sentencing judge erred in manner he dealt with applicant's criminal record - whether individual sentences and total accumulated sentence were unduly harsh and severe Legislation Cited: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 1986 (NSW)Cases Cited: Baxter v R [2007] NSWCCA 237; 173 A Crim R 284
Brink v R [2010] NSWCCA 217
Chong v R [2011] NSWCCA 182
Dang v R [2004] NSWCCA 265
Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1
EJDG v R [2012] NSWCCA 251
El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208
Hay v R [2013] NSWCCA 22
Hili v R; Jones v R [2010] HCA 45; 242 CLR 520; 204 A Crim R 434
Kuti v R [2012] NSWCCA 43
Lindsay v R [2012] NSWCCA 124
Mirza v R [2007] NSWCCA 257
Okeke v R [2005] NSWCCA 444
Okeke v R [2010] NSWCCA 266
Onuorah v R [2009] NSWCCA 238; 197 A Crim R 430
R v Guo; R v Qian [2010] NSWCCA 170; 201 A Crim R 403
R v Karan [2013] NSWCCA 53
R v Mokoena [2009] QCA 36; 193 A Crim R 351
R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106
R v Paliwala 2005] NSWCCA 221; 153 A Crim R 451
R v SC [2008] NSWCCA 29
R v TYN [2009] NSWCCA 146; 195 A Crim R 345
R v Tran; R v Tran; R v Nguyen [2013] NSWCCA 136
R v Walker [2005] NSWCCA 109
Van Der Baan v R [2012] NSWCCA 5
Viera v R [2006] NSWCCA 401Category: Principal judgment Parties: Ademola Adegoke (Applicant)
The Crown (Respondent)Representation: Counsel:
M Ramage QC (Applicant)
L Crowley (Crown)
Solicitors:
Jeffreys Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)
File Number(s): 2010/36316; 2011/212840 Decision under appeal
- Jurisdiction:
- 9101
- Before:
- Garling DCJ
- File Number(s):
- 2010/36316; 2011/212840
Judgment
BASTEN JA: I agree that the orders proposed by Fullerton J should be made, for the reasons she gives.
FULLERTON J: The applicant seeks leave to appeal against the sentences imposed in the District Court on 16 December 2011 after pleading guilty in the Local Court on 22 June 2011 to three offences, two laid contrary to the Criminal Code Act 1995 (Cth) ("the Criminal Code") and the third contrary to the Crimes Act 1900 (NSW). The State offence was the subject of a certificate under s 166 of the Criminal Procedure Act 1986 (NSW).
The offences to which the applicant pleaded guilty and the sentences imposed are as follows:
1. Between about 28 January 2010 and 9 February 2010 he attempted to possess a marketable quantity of an unlawfully imported border controlled drug, namely 86.2 grams of cocaine and contrary to s 307.6(1) with s 11.1(1) of the Criminal Code ("the drug offence").
2. Between about 1 June 2009 and 9 February 2010 he dealt with the proceeds of crime in the amount of $387,241 contrary to s 400.4(1) of the Criminal Code ("the proceeds of crime offence").
3. On 9 February 2010 he had custody of a false instrument, namely a New South Wales driver's licence in the name of Simon Wells with intent to use the licence contrary to s 302 of the Crimes Act ("the false instrument offence").
Against an incorrectly nominated maximum penalty of 25 years imprisonment for the proceeds of crime offence (the correct maximum penalty being imprisonment for 20 years and/or a fine of $132,000) a sentence of 5 years imprisonment was imposed. That sentence was then partially accumulated on a sentence of 7 years imprisonment for the drug offence imposed against a maximum penalty of 25 years imprisonment and/or a fine of $550,000. Under the Criminal Code a marketable quantity of cocaine as an unlawfully imported border controlled drug is between 2 grams and 2 kilograms.
The maximum penalty prescribed by s 302 of the Crimes Act for the false instrument offence is imprisonment for 10 years. However, since the offence was a Table 2 offence under the Criminal Procedure Act, the maximum penalty that could be imposed was 12 months imprisonment and/or a fine of 20 penalty units. His Honour imposed a fixed term of 12 months imprisonment and ordered that the sentence be served wholly concurrently with the sentence for the proceeds of crime offence.
Against a total sentence of 10 years imprisonment a single non-parole period of 6 years was imposed for the Commonwealth offences as provided for in s 19AB(1)(b) of the Crimes Act 1914 (Cth).
The applicant relies upon five grounds of appeal:
1. The sentencing judge erred in sentencing on the basis of an incorrect maximum penalty (for the proceeds of crime offence).
2. The sentencing judge erred in sentencing the offender to a term of imprisonment of 1 year for the offence pursuant to s 302 of the Crimes Act.
3. The sentencing judge erred in the manner in which he dealt with the applicant's criminal record.
4. The individual sentences imposed were unduly harsh and severe.
5. The total accumulated sentence imposed was unduly harsh and severe.
The evidence led on sentence
A detailed statement of agreed facts was tendered on sentence upon which his Honour based his factual findings for sentencing purposes.
On 28 January 2010 an express mail package sent from Brazil arrived in Australia. The package was consigned to a Mrs Arimin of xx Boyle Street, Croydon Park. The package contained a thermos jug in which four packages of white powder were concealed which, upon later analysis, revealed a pure weight of 86.2 grams of cocaine.
On 3 February 2010 a light blue or champagne coloured car was seen parked on the western side of Boyle Street directly adjacent to a building site at number xx. A man of African appearance was in the driver's seat.
On 5 February 2010 an Australia Post courier attempted to deliver the package to the nominated address, however since the only premises at that address was a house under construction, and since the builders were unwilling to take receipt of the parcel, a collection slip was left in the mailbox advising that the package could be collected from Croydon Park Post Office. Later that day the vehicle was again parked directly adjacent to xx Boyle Street. Three men of African appearance were seen standing around the vehicle.
Between 5 February and 9 February 2010 the package remained at the post office. On 9 February the package was seized from the post office by the Australian Federal Police pursuant to a search warrant.
Later that day a search warrant was executed at the applicant's residence. A light blue motor vehicle, the subject of a rental agreement, was also searched after which the applicant was arrested by police. A number of items were seized by police which were listed in the statement of facts, only some of which were ultimately relevant to the offences for which the applicant was convicted. Those items included:
(i) The Australia Post collection slip left at the premises at Boyle Street to which the drug package was consigned.
(ii) A mobile telephone SIM card subscribed to an unknown person for a telephone number xxxxxxxx64 and connected on 3 February 2010. The contact number on the express mail package was xxxxxxx64, two digits short of the mobile telephone number when the international dialling code for Australia is applied. Analysis of the SIM card revealed that on 5 February 2010 (an hour after the attempted delivery of the package) a text message was received which read as follows: "0297970207 Australia Post, Suburban Post Offices, Croydon Park, 166 Georges River Road, NSW 2133".
(iii) A false driver's licence in the name of Simon Wells, date of birth 10 January 1974, which did not match any records held by the New South Wales Roads and Traffic Authority. (The applicant's possession of this document is the subject of the possess false instrument offence.)
(iv) A post office box key bearing the handwritten number "58" which was connected with a post office box under the name of Simon Wells in Belfield.
On the same day a search warrant was executed at a newsagency in Hurlstone Park, an agent of Western Union Financial Services, and a large number of documents relating to a total of $387,241 transferred overseas by the applicant in ninety separate transactions between June 2009 and February 2010 were seized. This constituted the offending the subject of the proceeds of crime offence. The applicant accepted by his plea of guilty that the money had been derived by him through his criminal activities. The countries the funds were sent to included Canada, the United States of America, the United Kingdom, Brazil, Spain and Nigeria. In each case the funds were transferred in a false name.
The applicant's criminal records
The applicant's criminal records in New South Wales from 2001 and in the United States of America between 1991 and 1999 were tendered. Multiple entries for the possession of false documents, including falsified foreign passports, and multiple entries for obtaining money by deception and other offences of dishonesty were recorded. He has served sentences of imprisonment in both jurisdictions.
In January 2003 the applicant was sentenced in the District Court to imprisonment for 3 years and 9 months for possession of a false instrument and concurrent terms of imprisonment for 3 years for eleven counts of obtaining money by deception (with additional offences on a Form 1). These offences were of relevance to the sentence proceedings, it being the applicant's evidence that the funds he telegraphically transferred were the proceeds of this offending and that upon his release from custody in 2004 he retrieved those monies from where they were hidden to repatriate in small amounts to his family. Although the Crown did not accept (and his Honour appeared to outright reject) that the money was repatriated for that purpose, the agreed facts recited the following:
All of the money sent overseas by the offender through the 90 international fund transfers was the proceeds of crime. This money had been derived by the applicant through previous criminal activity by him, the possession and use of false instruments and obtaining money by deception.
There was no evidence before the sentencing judge that the offending for which the applicant was sentenced in 2003 generated funds either in the amount telegraphically transferred or any nominated part of that sum. It was the Crown's submission that the offences for which the applicant was sentenced in 2003 were nonetheless "intrinsically linked" to the proceeds of crime offence on the basis that the funds generated from that offending comprised some part of the funds that were telegraphically transferred in 2009. In any event, by his plea of guilty the applicant accepted that the money transferred had been derived by him through his criminal activities.
The applicant gave evidence on sentence and tendered a number of letters from his wife. He also tendered a report dated 1 November 2011 from Sam Borenstein, a consultant clinical psychologist. The sentencing judge summarised Mr Borenstein's opinion in his sentencing remarks as follows:
... the offender's criminal history is interpreted in the context of a complex chronic post-traumatic stress disorder which had its origins in his childhood. His father was a violent alcoholic who frequently beat his mother as well as the offender. He was physically and sexually abused at a young age. He was introduced to alcohol and drugs as a means of dealing with PTSD symptoms, and this allowed him to undertake work as a child prostitute in order to survive. He was taken in by an uncle when he was 15 years of age. He continued to abuse drugs and alcohol.
He has expressed optimism and resolves to ensure that he does not relapse. He has reflected on the last 20 years of his life as being a waste. He will require some intensive treatment over at least a two year period upon release from gaol to ensure he maintains focus on managing his core psychological disorder, namely complex and chronic post-traumatic stress disorder.
The applicant gave evidence of his role in the drug offence. He claimed that he was asked by a friend, James Smith, a man he said he had met at a hotel nine months earlier, to pick up a package from the post office. He said he was offered $1000 and given the collection slip which was later found at his home to facilitate the collection. He said he did not know precisely what the package contained but believed it would contain an illegal substance. He said he was unable to pick up the package because he was known at the post office and the package was not in his name. He also admitted that he had lied to police when he said that he found the collection slip on the ground and that he was intending to hand it in to the post office. He also gave evidence that the driver's licence in the name of Simon Wells and the SIM card seized by police had been left in the blue car which was rented by the man who had asked him to collect the package. As noted above, he also claimed that the money he sent overseas was to his family.
His Honour did not regard the applicant as a credible witness. He described his version of events as "bizarre". He proceeded to sentence on the basis of the agreed facts unqualified by the applicant's evidence. His Honour was not, however, satisfied that the evidence supported the finding urged by the Crown that the money the subject of the proceeds of crime offence was being transferred for the purchase of drugs and, further, in assessing the criminality attaching to the drug offence, he did not appear to place any weight upon the applicant's possession of the SIM card as suggestive of any knowledge of the pending arrival of the package from overseas.
Although he said he would take into account the applicant's role for the purpose of sentence (presumably in committing the drug offence and the proceeds of crime offence), he did not, in his sentencing reasons, nominate or describe the applicant as having played any particular role in either offence, and did not appoint any level of objective criminality referable to what the applicant was proved to have done in committing those offences. He did, however, reject the applicant's evidence that he was collecting the package from the post office for his friend for which he was to be paid $1000, from which it is open to infer that for sentencing purposes the applicant was treated by his Honour as acting on his own behalf in attempting to obtain possession of the drugs, even if others might have been involved in some unspecified way.
In the result, in so far as is revealed by the reasons on sentence, the applicant was sentenced for attempting to obtain possession of the cocaine by his conduct in collecting the delivery note left in the mailbox (by necessary inference knowing it was there or expecting that it would be there), with the intention of securing access to the drugs inside the package and then, as his Honour found, for the drugs to be "taken somewhere and used". Although the applicant reported to Mr Borenstein that he had abused drugs and alcohol in the past, both as a young adolescent and after a number of past relationships failed, at the time of the offending he said that he was in a stable relationship which was current at the time of sentence which other evidence indicated commenced in 2002. On the basis of this evidence, and in circumstances where there was no evidence for a finding on the balance of probabilities that the applicant was a courier collecting the drugs for someone else (although he may have been), the only remaining inference is that the drugs would be sold by the applicant or otherwise supplied by him for reward.
In dealing with the proceeds of crime offence his Honour regarded the agreed facts as speaking for themselves. He made no finding of the level of objective criminality involved in transmitting the money but simply referred to the fact that the Crown had provided a number of cases, "all different to some extent", and "having considered [those cases] and the other matters", he determined that the appropriate head sentence is one of 5 years.
His Honour also made no finding as to the criminality involved in the applicant's possession of the false licence, or the use to which the applicant intended to put it, save for the implicit rejection of the applicant's account that it was left in the car by the person "James Smith".
His Honour referred to the necessity to sentence for the Commonwealth offences in accordance with s 16A of the Crimes Act (Cth) and although he did not refer to each of the matters in s 16A(2) seriatum, he said he took into account what he described as the applicant's "significant criminal record" under s 16A(2)(m) and that the proceeds of crime offence involved a series of criminal acts under s 16A(2)(c).
The sentencing judge erred in sentencing on the basis of an incorrect maximum penalty for the proceeds of crime offence
As noted above, the Crown conceded the error foundational to the first ground of appeal. The Crown also conceded in argument that the error was material in the sense that, as a matter of inference, it must have infected the sentencing judge's discretion when sentencing for the proceeds of crime offence and that, absent error, a lesser sentence may have been imposed. That concession does not entitle the applicant to have a lesser sentence substituted for the sentence imposed. It does however enliven the operation of s 6(3) of the Criminal Appeal Act 1912 (see EJDG v R [2012] NSWCCA 251 at [24]). The Crown submitted that on re-sentence, in light of the sentence of 5 years for what was submitted to be serious offending, the error in the misstatement of the maximum penalty, when assessed against the correct maximum penalty, would not attract the intervention of this Court (see Kirby J in Baxter v R [2007] NSWCCA 237; 173 A Crim R 284 at [60], with whom Spigelman CJ agreed, Latham J publishing a separate judgment in substantial agreement with Kirby J).
The Crown also submitted that we would not be satisfied that the error had a material effect on the overall sentence as no lesser sentence than one of 10 years with a non-parole period of 6 years would be warranted in law. That submission assumes the applicant's challenge to the individual sentences (or any of them) as manifestly excessive fails (the fourth ground of appeal) and that the degree of accumulation between the drug offence and the proceeds of crime offence does not render the total effective sentence manifestly excessive (the fifth ground of appeal). Although it is not necessary for the applicant to establish that the sentence for the proceeds of crime offence was manifestly excessive, or even outside a notional range of sentences for offending of this kind to make good the first ground of appeal, in considering whether a lesser sentence should be substituted in accordance with s 6(3), the factors material to a consideration of the fourth and fifth grounds of appeal will also need to be considered. For my part, and for the reasons I will develop when considering those grounds of appeal, I am satisfied that neither the sentence for the drug offence nor the proceeds of crime offence is excessive and that the accumulation of two years has not been productive of an excessive total sentence. It is for that reason that despite the Crown's concession that the wrong statement of the maximum penalty was a material error making out the first ground of appeal, enlivening the operation of s 6(3) of the Criminal Appeal Act, I would not move to re-sentence the applicant on that ground.
It remains necessary, however, to consider the other grounds of appeal to the extent that error of any other kind has impacted upon the sentences imposed.
The sentencing judge erred in sentencing the offender to a term of imprisonment of 1 year for the offence pursuant to s 302 of the Crimes Act
In the course of oral argument the Crown also conceded that although in his written submissions on sentence in the District Court the maximum penalty for the false instrument offence on the s 166 certificate was correctly nominated as 12 months and/or a fine of 20 penalty units (it being a Table 2 offence under the Criminal Procedure Act at the time the offence was committed), in the agreed statement of facts the maximum penalty was wrongly stated to be 2 years. I propose to reason on the assumption that his Honour sentenced the applicant referable to the statement of facts and imposed a 12 month sentence against the wrongly stated statutory maximum of 2 years which, in my view, is the overwhelming inference to be drawn from the fact that his Honour gave no reasons to justify the imposition of the maximum penalty. Although the Crown submitted that, in a practical sense, the error was not material since the sentence was ordered to be served wholly concurrently with the proceeds of crime offence (see Latham J at [84] in Baxter), it was ultimately conceded that despite the limited practical utility in re-sentencing the applicant, when any sentence we might impose would be ordered to be served wholly concurrently with the proceeds of crime offence and would by the date of re-sentence be fully served, it was appropriate that this Court should intervene and re-sentence since the imposition of the maximum available sentence for the false instrument offence could not be justified.
It was also submitted on behalf of the applicant that because the false instrument offence was before the sentencing judge under s 167(2)(b) of the Criminal Procedure Act (that is, as a related offence on a s 166 certificate following the applicant's committal for sentence) his Honour should not have dealt with the offence by the imposition of a sentence at all (or, so far as I understood counsel's submission, the imposition of a fine) but that he should have availed himself of the alternate course offered under the section and refused to deal with the offence as being contrary to the interests of justice. No submissions were made to the sentencing judge as to any basis upon which that approach could properly be taken, and none offered by way of submissions before this Court in the event of re-sentence. In my view, although the false instrument offence was relatively minor in comparison with the other offences upon which the applicant was committed for sentence, there was nothing either in his personal circumstances or in the facts giving rise to his possession of the licence that would justify it being treated in the way suggested by counsel.
The applicant tendered a compendium of materials on re-sentence evidencing the sustained efforts on his part to prepare himself for his release. The materials included certificates of achievement and participation from a number of vocational and behavioural programs offered by Corrective Services and testimonials from the Chaplaincy Service at both Parklea and South Coast Correctional Centres. I propose by way of re-sentence a fixed term of 3 months imprisonment.
The sentencing judge erred in the manner in which he dealt with the applicant's criminal record
The sentencing judge referred to the applicant's criminal record in three different contexts in his reasons for sentence. On two occasions he described it as "significant", the first in the context of the applicant's subjective circumstances and then later when referring to matters to be considered under s16A of the Crimes Act (Cth). As to that his Honour said:
...I have to take into account his significant criminal record, and that his second offence consists of conduct consisting of a series of criminal acts...
In the Crown's written submissions on sentence the applicant's criminal record was identified as one of the matters in s 16(2)(m) of the Crimes Act (Cth) which provides that, where relevant, a person's "character, antecedents, age, means and physical or mental condition" are to be taken into account in the imposition of sentence. The Crown submitted that the applicant's record deprived him of the leniency that might be afforded a first time offender and that it justified greater emphasis being given to "retribution and deterrence and the protection of society". The applicant's counsel accepted that this was a correct statement of principle but submitted that because there was nothing in his Honour's sentencing remarks that indicated that the use of the applicant's record would be confined in that way, it should be inferred that his Honour impermissibly used it as an aggravating factor.
The relevant principles as to the use a sentencing judge might make of an offender's criminal record have been recently restated by Hall J in Van Der Baan v R [2012] NSWCCA 5 (with whom Beazley JA and Harrison J agreed) at [30]:
(1) The principle of proportionality as enunciated in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 requires that a sentence should not exceed what is proportionate to the gravity of the crime, having regard to the objective circumstances: Hoare v The Queen [1989] HCA 33; (1989) 167 CLR 348 at 354; R v McNaughton [2006] NSWCCA 242; (2006) 66 NSWLR 566; 163 A Crim R 381 at 572 per Spigelman CJ at [15].
(2) The proportionality principle applies so that a sentence should not be less than the objective gravity of the offence required: McNaughton (supra) per Spigelman CJ.
(3) The antecedent criminal history of any offender may not be used to increase the sentence beyond what is an appropriate sentence for the particular offence: Baumer v The Queen [1988] HCA 67; (1988) 166 CLR 51 at 57.
(4) Accordingly, prior convictions do not themselves play a role in determining the gravity of the offence which, as the High Court confirmed in Hoare (supra), turns on the objective circumstances of the offence: McNaughton (supra) at [24]:
"... the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions."
(5) Prior convictions are pertinent in terms as to where, within the boundaries set by the objective circumstances, a sentence should lie: McNaughton (supra) per Spigelman CJ at [26] (Bell J (as her Honour then was) and Hislop J agreeing). This proposition may be seen to be reflected in references in Veen (No 2) (supra) to concepts such as an "attitude of disobedience to the law" and to the increased weight to be given to retribution, to "deterrence" (relevantly personal deterrence) and "the protection of society".
His Honour's treatment of the applicant's criminal record was cursory, and his failure to make clear the precise manner in which it was to be taken into account, did nothing to enlighten the sentencing process (R v Walker [2005] NSWCCA 109). Having regard to the sentences imposed, I am not, however, persuaded that his Honour misused it in the way contended for by the applicant.
His Honour also referred to the fact that the applicant had convictions for fraud (and the fact that he engaged in sending money illegally obtained overseas - clearly a reference to the proceeds of crime offence) in rejecting the applicant's evidence as to the circumstances in which he committed the drug offence and the proceeds of crime offence. His Honour said:
His whole version is bizarre. I have difficulty in accepting anything this man told me as to what happened and why he committed the offences. He is not an acceptable witness. He has convictions for fraud and engaged in sending money illegally obtained overseas. He said that he was able to send the money overseas in false names by paying an employee at the newsagency each time he sent the money overseas. I do not accept his evidence. In sentencing him I rely on the facts as tendered and not his explanation.
The fact that the applicant had convictions for offences of dishonesty was material to an assessment of his credibility and a matter his Honour was entitled to take into account when considering what weight he should give to the applicant's version as to how he became involved in the drug offence. On the other hand, there is some circularity of reasoning inherent in his Honour's rejection of the applicant's evidence that he was able to transfer funds overseas in a false name by paying an employee of the newsagency because he was engaged in that conduct. In the result, however, I do not see that anything turns on that fact since it was open to his Honour to reject the applicant's evidence on that issue by the adverse credit finding referable to the inherent improbability of his evidence generally.
Senior counsel for the applicant also submitted that in the passage extracted at [36] above his Honour treated the applicant's conduct in committing the proceeds of crime offence as somehow aggravating the drug offence. Were it susceptible to that construction, and I am satisfied it was not, it would have amounted to error.
I would reject the third ground of appeal.
The individual sentences imposed were unduly harsh and severe
The total accumulated sentence imposed was unduly harsh and severe
It is convenient to deal with these two grounds of appeal together.
In so far as the drug offence is concerned the applicant's counsel submitted that as a general proposition an attempt to possess a marketable quantity of a border controlled drug under s 307.6(1) of the Criminal Code usually attracts a lesser sentence than offences under s 307.1 of the Criminal Code which have as their fault element an intention to import a marketable quantity of the drug and, for that reason, sentences imposed upon importers, even couriers, were no guide to the sentence to be imposed in this case. That submission is not borne out by the sentences that have been the subject of review in this Court (as to which see the schedule of recent cases attached to this judgment which include those to which the sentencing judge was referred by the Crown). It is also contrary to what this Court has recently held to be the relevant principles that apply to sentencing for drug offences under the Criminal Code.
In R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at [72] Johnson J (with whom Macfarlan JA and RA Hulme J agreed) observed that the importation and possession offences under the Criminal Code provide for a structured sentencing regime by reference to the quantity of the border controlled drug, distinguishing between certain drugs in setting those quantities but otherwise making no distinction between them in terms of the maximum applicable penalties. Before considering the sentences under review in that case and setting out a number of general propositions emerging from the authorities applicable to sentencing for drug importation offences in [72](a)-(o), Johnson J said:
...I include in this offences of attempting to possess a quantity of an unlawfully imported border controlled drug contrary to s 307 Criminal Code Act 1995 (Cth).
In R v Karan [2013] NSWCCA 53, a Crown appeal against the inadequacy of sentences imposed for the offence of aid and abet an attempt to possess a commercial quantity of cocaine contrary to s 307.5, s 11.2 and s 11.1 of the Criminal Code, at [54] Adamson J (with whom Johnson and Harrison JJ agreed) referred to Nguyen; Pham and various of the general propositions Johnson J had set out in considerable detail in that case. Importantly, for the purposes of this appeal, both cases emphasise that for sentencing purposes there is no necessary distinction between the importation and possession of border controlled drugs and an attempt to possess such drugs.
Senior counsel for the applicant submitted that the sentence of 7 years imposed for the drug offence is excessive given what he submitted was the limited extent of the applicant's proven conduct in committing the offence and the relatively modest amount of cocaine involved. He also submitted that the applicant's proven conduct justified him being treated as no more than a bare courier of a quantity of drugs at the lower end of the marketable threshold. This, coupled with what was said to be a long history of drug use and dependency, was then said to position him within the third group of offenders identified by McClellan CJ at CL in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 205 A Crim R 1 at [223] where a sentencing range of 3.75 years and 6 years as a head sentence was identified with a non-parole period between 2 years and 4.25 years.
Quite apart from there being no obvious analogy between what this applicant was proved to have done in his attempt to take possession of the cocaine and a courier of drugs in the sense customarily encountered in importation offences (and to which it would appear McClellan CJ at CL was referring when identifying offenders in the third group) and, as I have noted, no evidence suggesting the applicant's past history as a user of drugs and alcohol had any bearing on his current offending, this Court has observed, not infrequently, that there is limited utility in an applicant for leave to appeal attempting to position themselves within one or other of the categories of offender in De La Rosa. In R v Tran; R v Tran; R v Nguyen [2013] NSWCCA 136 I said:
[35] In a number of cases since De La Rosa was decided, this Court has held that limited assistance is to be gained by an applicant for leave to appeal against sentence endeavouring to position themselves in one or other of the categories of drug offender described by McClellan CJ at CL at respectively [207]-[215] in the case of commercial quantities of border controlled drugs and [216]-[223] for marketable quantities (see the cases referred to by Davies J in Thoung Nguyen v R [2012] 184 at [38]). What has been repeatedly emphasised in those cases is that the grouping of offenders into categories in De La Rosa by reference to common characteristics (so far as McClellan CJ at CL was able to identify them) was for general guidance and assistance to sentencing judges and not for use as a guideline judgment.
[36] In R v Holland [2011] NSWCCA 65; 205 A Crim R 429 (a Crown appeal against the inadequacy of a sentence imposed for the importation of a commercial quantity of cocaine about which I will have something to say later in this judgment), McClellan CJ at CL at [3] said of his judgment in De la Rosa that it would be wrong to sentence an offender by attempting to discern the "category" into which they might fit and then imposing a sentence appropriate for an offence which happens to share the characteristics common to that category. In Holland Schmidt J at [52] (Buddin J agreeing) warned against a Crown appeal being mounted on the basis that the sentence under challenge fell outside the range applicable to offenders in one or other of the categories identified in De La Rosa.
Finally, the applicant's counsel placed reliance upon sentencing statistics which he submitted demonstrates that after applying the discount for the plea of guilty, a sentence of 7 years was at the top of the range of sentences for an attempt to possess a marketable quantity of a lawfully imported drug, with five of the twelve offenders in the sample receiving sentences of between 5 and 7 years (and three offenders, each of whom had criminal records, of 7 years). In my view, the statistics do nothing to advance the applicant's complaint that his sentence was unreasonable or plainly unjust. Quite apart from the qualification that attaches to the utility of relying upon sentencing statistics when challenging the adequacy or inadequacy of a sentence (see Hili v R; Jones v R [2010] HCA 45; 242 CLR 520; 204 A Crim R 434), where the sample of cases the subject of statistical analysis is small, as it was here, with only twelve cases prosecuted on indictment between 2008 and 2013, and where there was no information as to the weight of the drugs or the role played by an offender, no reliable conclusions can be drawn.
In my view, the summary of cases in the attached schedule, each of which has been the subject of appellate review, provides a more reliable source of information about a sentencing range relative to the applicant's offending. These cases, including cases decided in this Court in 2013, are also consistent with the analysis by Price J in R v SC [2008] NSWCCA 29. At [35], after reviewing the respondent's sentence for manifest inadequacy in circumstances where he attempted to possess 183 grams of cocaine and was sentenced to 3 years and 6 months imprisonment with a non-parole period of 2 years from a "starting point" of 7 years (after allowing a 50 per cent discount), his Honour observed:
Statistics published by the Judicial Commission of New South Wales were put before the Judge. They show that between January 2003 and March 2006 sixty one sentences were imposed for importing the trafficable quantity of cocaine [the equivalent to a marketable quantity under the Criminal Code]. The minimum head sentence was eighteen months and the maximum ten years. The minimum non-parole period or fixed term was twelve months and the maximum term seven years. All of the sentences in the published statistics were imposed after s 16G was repealed. Sixty four per cent of the sentences had a head sentence of between seven and nine years. A head sentence of ten years was imposed in only two per cent of cases. Eighty two per cent of the head sentences were, however, between six and nine years. These figures suggest that an appropriate range of sentences involving low level trafficable quantities of cocaine and heroin after the repeal of s 16G is a head sentence of between six and nine years imprisonment. (emphasis added)
Accepting that the weight of the drug is just one of the factors to be considered in arriving at an appropriate sentence, the amount of pure cocaine in the applicant's case does position it at the lower end of the broad range of a marketable quantity of a border controlled drug under the Criminal Code. However, as borne out by the cases in the schedule, although the quantity of the drug is a recognised variable which affects the objective criminality of the offending, it does not translate into a particular sentence within the range. In my view, what remains significant in this case is that there is nothing in the facts led on sentence, or those which his Honour found for sentencing purposes, which allows for a finding that the applicant was attempting to possess the drug otherwise than for his own personal gain. In addition, and accepting that there was no basis for a finding that the applicant was involved in arranging for the drug to be imported, his conduct in both being at the address where the parcel was to be delivered both before and on the day delivery was attempted, and his efforts to obtain possession of the drugs by retaining the collection slip left by the postal officer at that address with the intention of collecting the drugs from the post office, reinforces that finding.
Having regard to the summary of cases in the schedule, including those the Crown relied upon on sentence, and the observations of Price J in R v SC, a discounted sentence of 7 years from a starting point of 8 years and 9 months, although at or towards the top of the range of sentences reflected in the schedule, does not appear to me to be excessive in the sense of it being "unreasonable or plainly unjust", there being little in the applicant's subjective case to displace the objective seriousness of the offending or to otherwise entitle him to any leniency.
Despite his Honour's cursory analysis of the facts bearing on the commission of the proceeds of crime offence (see [23] of this judgment) and despite having undertaken no analysis at all of the objective seriousness of that offending, I am of the same opinion with respect to the sentence of 5 years imposed on the proceeds of crime offence despite it being imposed referable to a misstatement of the maximum penalty. Having regard to the objective circumstances relevant to that offending, and the applicant's subjective circumstances which were not compelling, a sentence of 5 years imprisonment was also, in my view, within an available range; it was not unreasonable or plainly unjust.
From the detailed analysis of the authorities undertaken by Johnson J in R v Guo; R v Qian [2010] NSWCCA 170; 201 A Crim R 403 at [84]-[91] in each case where the importance of general deterrence is emphasised, the following factors relevant to an assessment of objective seriousness for breaches of Pt 10.2 of the Criminal Code (of which dealing in the proceeds of crime is one offence) seem to me to have an obvious application to the facts the sentencing judge found established in this case, even if he did not undertake any analysis of them for that purpose:
(a) An appreciation of what the offender did, what acts he performed and over what period of time.
(b) The amount of money involved in the commission of the offence - generally speaking a number of transactions involving smaller amounts of money will be more serious than a single transaction of a larger amount.
(c) Whether the money belonged to the offender or to another person and what the offender knew of its provenance and the identity of the intended recipients.
(d) The degree of planning or deceit involved in the commission of the offence.
In respect of each of these factors, the evidence supported a finding adverse to the offender in that he deliberately engaged in deceitful conduct by sending small amounts of money in a number of false names to a variety of destinations over an extended period of time, money which he conceded was the proceeds of criminal activity. The fact that the applicant knew that the money was from an illegal source is objectively more serious than where an offender is reckless as to that fact. In this case, while the sentencing judge made no finding that the money was to be transmitted for the purpose of furthering or facilitating the applicant's criminal activity in drugs (which would have aggravated the objective seriousness of his offending to a significant extent), he did not give the applicant the benefit of any positive finding that the money was to be sent solely, or even dominantly, to support his family in Africa. This was hardly surprising given the variety of destinations and named recipients in the records seized. In the result, there was simply no evidence that could be accepted as to why the money was being sent and the identity of any of the recipients.
The applicant's counsel also advanced the submission that his Honour had inflated the offending constituted by the proceeds of crime offence by sentencing him twice for the offending which generated the funds which were telegraphically transferred. I am not persuaded that submission is borne out by the sentencing result and, as I have observed, and despite the paucity of the sentencing remarks, there is nothing from which an inference might be drawn that his Honour approached sentence in that way.
Finally, I can discern no error in the fact or degree of accumulation between the sentences imposed for the drug offence and the proceeds of crime offence or that the total sentence was plainly unreasonable or unjust. The offences involved legally, factually and temporally discrete criminal offending necessitating a significant degree of accumulation to properly reflect the total criminality comprehended by both offences.
I propose the following orders.
1. Leave to appeal is granted.
2. The sentence imposed for the offence the subject of the s 166 certificate is quashed. In lieu thereof a fixed term of 3 months imprisonment is imposed to commence from 9 February 2010.
3. Otherwise dismiss the appeal against the sentences imposed in the District Court on 16 December 2011.
RA HULME J: I agree with Fullerton J.
Schedule of cases
1. In Hay v R [2013] NSWCCA 22 the appellant pleaded not guilty to one count of importation and one count of possession of 250.7 grams of pure cocaine, contrary to s 307.2(1) and s 307.6(1) of the Criminal CodeAct 1995 (Cth). He had used his employment as a driver for a catering company that provided food to United Airlines to facilitate the collection of the imported drugs. He was sentenced to 7 years imprisonment with a non-parole period of 4 years for each offence, to be served wholly concurrently.
2. In Kuti v R [2012] NSWCCA 43 the applicant pleaded guilty to one count of importation of 452.6 grams of heroin contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). He had consumed numerous packages containing the cocaine prior to boarding a flight from Nigeria to Sydney. He was 69 and had no criminal record. He was sentenced as a courier and was given a 25 per cent discount for his guilty plea. His sentence, confirmed on appeal, was 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months.
3. In Lindsay v R [2012] NSWCCA 124 the applicant pleaded guilty to the importation of 400 grams of cocaine, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The cocaine was secreted on his body before he boarded a flight from Bangkok to Sydney. The sentencing judge found that he was more than a mere courier as he had arranged his own flights and accommodation and undertaken for the purpose of financial gain or to pay off a financial debt. He was 44 and had a lengthy criminal history. He was given a 25 per cent discount for his guilty plea. He was sentenced to 5 years and 6 months imprisonment with a non-parole period of 3 years.
4. In Chong v R [2011] NSWCCA 182 the applicant pleaded guilty to the importation of 151.1 grams of cocaine, contrary to s 307.2(1) of the Criminal CodeAct 1995 (Cth). The cocaine was concealed in her underwear on a flight from Los Angeles to Sydney. She had a history of drug use and a criminal record in the United States. She was 25 and showed remorse and contrition. She was originally sentenced to 6 years imprisonment with a non-parole period of 3 years, however following a successful appeal she was re-sentenced to 5 years and 3 months imprisonment with a non-parole period of 2 years and 9 months.
5. In Brink v R [2010] NSWCCA 217 the applicant pleaded guilty to the importation of 210.5 grams of pure cocaine and 281.9 grams of heroin, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The drugs were concealed within picture frames the applicant had placed inside his carry-on luggage on a flight from Johannesburg. The sentencing judge found that the drugs were imported for personal gain. His sentence, confirmed on appeal, was 8 years and 6 months imprisonment with a non-parole period of 5 years.
6. In Okeke v R [2010] NSWCCA 266 the applicant pleaded guilty to five offences consisting of four counts of possession of a border controlled drug and one count of dealing with the proceeds of crime. Of the four drug offences, Counts 1 and 3 related to the possession of 80.4 grams and 371.9 grams of pure cocaine both contrary to s 307.6 of the Criminal Code Act 1995 (Cth). On both counts he had attempted but did not succeed in collecting packages containing the cocaine sent from Brazil. He was assessed as being no more than a courier. He suffered post-traumatic stress disorder from an assault in 2004. A psychologist reported this gave him impaired judgment. On Count 1 he was sentenced to a term of imprisonment of 18 months and on Count 3 a term of imprisonment of 3 years. On appeal the total concurrent sentence imposed for the five offences was reduced, but the individual sentences for Counts 1 and 3 were increased to 2 years and 4 years and 6 months respectively.
7. *In El-Ghourani v R [2009] NSWCCA 140; 195 A Crim R 208 the applicant pleaded guilty to attempting to possess 181.5 grams of heroin contrary to s 307.6 of the Criminal Code Act 1995 (Cth). The drugs were concealed within wooden frames that he arranged to be collected on his behalf. The sentencing judge assessed his role as more than a mere cog but was not satisfied he was the sole organiser. He had a prior criminal record, significant drug habit and a reluctance to admit to his involvement. It was difficult to determine his prospects of rehabilitation. He was given a 15 per cent discount for his guilty plea. His sentence, confirmed on appeal, was 9 years imprisonment with a non-parole period of 6 years.
8. In R v Mokoena [2009] QCA 36; 193 A Crim R 351 the applicant pleaded guilty to importing 113.5 grams of methylamphetamine, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). The sentencing judge assessed his role as that of a principal or importer. He was 29, had no prior convictions and gave very substantial assistance to authorities. His sentence, confirmed on appeal, was 9 years imprisonment with a non-parole period of 4 years and 9 months.
9. In Onuorah v R [2009] NSWCCA 238; 197 A Crim R 430 the applicant pleaded not guilty to attempting to possess 107.2 grams of cocaine, contrary to 307.6 of the Criminal Code Act 1995 (Cth). He had leased a mail delivery box in Sydney which was the delivery address for a box from Venezuela containing the cocaine. He had made multiple efforts not to sign for the item. On appeal, a sentence of 7 years and 10 months with a non-parole period of 4 years and 10 months was confirmed.
10. In R v TYN [2009] NSWCCA 146; 195 A Crim R 345 the applicant pleaded guilty to importing 242.3 grams of heroin, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). She had agreed to act as a courier in order to repay a $20,000 drug debt. An early plea and valuable assistance to police that left her at some risk of retribution attracted a discount of 58 per cent. Her sentence, confirmed on appeal, was 6 years imprisonment with a non-parole period of 3 years and 9 months.
11. In Mirza v R [2007] NSWCCA 257 the applicant pleaded guilty to importing 313.7 grams of heroin, contrary to s 233B(1)(a)(iii) of the Customs Act 1901 (Cth). The sentencing judge did not positively characterise his role but found that he had left the country with an intention to import drugs on his return. He was to be rewarded $10,000 for the importation. He displayed shame and remorse for the offence. The sentencing judge allowed a discount of 25 per cent for the guilty plea. His sentence, confirmed on appeal, was 9 years imprisonment with a non-parole period of 5 years.
12. In Viera v R [2006] NSWCCA 401 the applicant pleaded guilty to a charge of conspiring to import 380.9 grams of cocaine contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). His role was assessed to be a middleman. He assisted police in the prosecution of co-offender. He had a history of drug abuse but was found to have good prospects of rehabilitation and unlikely to re-offend. He was given a 20 per cent discount for his guilty plea. On appeal, a sentence of 10 years and 9 months imprisonment with a non-parole period of 6 years and 6 months was confirmed.
13. *In Okeke v R [2005] NSWCCA 444 the applicant pleaded guilty to two counts of attempting to possess 195.8 grams and 190.3 grams of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The applicant arranged for another person to collect two packages sent from Brazil. He had no prior criminal convictions but was found not to be of good character. Any discount for his plea of guilty was not specified but the plea was given after the trial was listed to commence. His sentence for each offence, confirmed on appeal, was 9 years imprisonment with a non-parole period of 6 years, to be served concurrently.
14. In R v Paliwala 2005] NSWCCA 221; 153 A Crim R 451 the applicant pleaded guilty to importing prohibited imports under s 233B(1)(b) of the Customs Act 1901 (Cth) which he ingested in twenty-plus packages prior to embarking on a flight from Los Angeles to Sydney. His role was assessed to be that of a courier who stood to receive $20,000 for the importation. He was well educated but had suffered recent financial difficulties. On appeal, a sentence of 9 years imprisonment with a recognisance release order to be issued after he had served 5 years and 6 months was confirmed.
15. *In Dang v R [2004] NSWCCA 265 the applicant pleaded guilty to attempting to possess 92 grams of heroin, contrary to s 233B(1)(c) of the Customs Act 1901 (Cth). The drugs were concealed inside books and addressed to the applicant's premises. The sentencing judge assessed his role as at the middle level. He was 25 years old and came to Australia from Vietnam on a student visa. The sentencing judge found that his time in custody would be more difficult due to his limited English. He was given a 25 per cent discount for the guilty plea. His sentence, confirmed on appeal, was 7 years and 6 months imprisonment with a non-parole period of 5 years.
* Cases referred to by the Crown in their submissions on sentence.
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Amendments
26 September 2013 - "second group" replaced with "third group"
Amended paragraphs: 44 & 45
Decision last updated: 26 September 2013
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