Adenopo v The Queen

[2011] VSCA 269

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0040

OLAMILEKAN ADEWALE OLAY ADENOPO
	Appellant
v
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and WHELAN AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 August 2011
DATE OF JUDGMENT	17 August 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 269
JUDGMENT APPEALED FROM	DPP v Adenopo (Unreported, County Court of Victoria, Judge Duckett, 12 February 2010)

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CRIMINAL LAW – Appeal against sentence – Error conceded being not fixing a non-parole period because of likelihood of deportation – Appeal allowed – Non-parole period fixed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr T Kassimatis	Theo Magazis & Associates
For the Crown	Mr S Bruckard	Mr C Craigie SC, Director of Public Prosecutions (Commonwealth)

BONGIORNO JA:

1. I will allow Whelan AJA to deliver the first judgment.

WHELAN AJA:

1. This is an appeal against a sentence imposed on the appellant in the County Court on 12 February 2010.  The appellant pleaded guilty to a Commonwealth offence of importing a marketable quantity of a border controlled substance (s 307.21 of the Criminal Code). 

1. The appellant is a Nigerian national.  He arrived at Melbourne International Airport on a flight from Shanghai on 30 August 2009.  Before leaving China he had swallowed 25 pellets which contained 206.2 grams of material.  The material was 61.6 per cent heroin, thus the amount of pure heroin imported was 127 grams.

1. The relevant legislation provides that a marketable quantity of heroin is any quantity between two grams and 1.5 kilograms.  The maximum penalty for the offence is 25 years’ imprisonment.

1. The sentence imposed in the County Court was a term of three years and six months’ imprisonment.  There was no non‑parole period fixed.  His Honour determined not to fix a non‑parole period because of his finding that upon release from custody the appellant would be deported to Nigeria.

1. It is conceded by the Crown that the judge made an error in determining not to fix a non‑parole period for that reason.  There are cogent arguments both for and against the proposition that the likelihood of deportation should properly be a basis for refusing to fix a non‑parole period, but the law is that in relation to both Commonwealth and Victorian offences the likelihood of deportation is not a proper reason for determining not to fix a non‑parole period.[1] 

[1]R v Binder [1990] VR 563; Nguyen v The Queen [2010] VSCA 244; R v Shrestha (1991) 173 CLR 48.

1. It is necessary to re‑sentence the appellant and in doing so to fix either a non‑parole period or to provide for a reconnaissance release order. 

1. For the reasons given by the sentencing judge, in my view the sentence of three years and six months’ imprisonment was appropriate.  No issue has been taken in relation to the head sentence by either the appellant or the respondent on this appeal.

1. As to the fixing of a non‑parole period, it seems to me that the appropriate period is two years and four months.  In my view that period is the minimum time that justice requires having regard to the circumstances of this offence.

BONGIORNO JA:

1. I agree.

1. The order of the Court is that:

1.        The appeal is allowed.

2.        The sentence of imprisonment imposed below is quashed and in lieu thereof the appellant is sentenced to 3 years and 6 months’ imprisonment.

3.        A non-parole period of 2 years and 4 months is fixed.

It is declared that the period of 717 days, not including this day, is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that that declaration was made and its details.

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