CDirector of Public Prosecutions v Iwunze

[2023] VCC 410

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01212

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

V

KINGSLEY CHIMA IWUNZE

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2023, 31 January 2023
DATE OF SENTENCE:	7 February 2023
CASE MAY BE CITED AS:	CDPP v Iwunze
MEDIUM NEUTRAL CITATION:	[2023] VCC 410

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW SENTENCE

Catchwords:  Sentencing - attempting to possess a commercial quantity of a border-controlled drug reasonably suspected to have been unlawfully imported - plea of guilty

Legislation Cited: s6AAA Sentencing Act 1991.

Cases Cited:

Sentence:Total Effective Sentence - imprisonment of 5 years and 6 months. Non-parole period 3 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Ms C. Caretti	Ms C. Caretti Commonwealth Director of Public Prosecutions
For the Accused	Ms A. Hughes	Ms L. Bowden Victoria Legal Aid

HIS HONOUR:

1Kingsley Iwunze, you have pleaded guilty to one charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected of having been unlawfully imported.  This is a serious Commonwealth offence and serious criminal offence and has a maximum penalty of life imprisonment.

2The facts of your offending are set out in Exhibit A, the agreed summary of facts, which were provided to me on a sentence indication hearing which I heard last week.  Your counsel has informed me that I can treat that document as an agreed statement of fact, and I incorporate it into these reasons for sentence and sentence you on the basis of the facts set out therein.  I do not intend to deal with the facts extensively.

3It is clear when dealing with Commonwealth sentencing that the court must have regard to the maximum penalty prescribed by Parliament, which is an indication of the seriousness of the offence; the quantity of drugs that were imported in the particular case; and thirdly, your particular role in the importation.  As I have already said, it is a very serious offence.  Drugs have a very bad and lasting effect on our society, and the life sentence imposed by Parliament demonstrates how serious the offence is.

4The amount of drugs in this case was not at the highest end of drugs that we see; in fact, it was the opposite.  It was just short of double a commercial quantity, 2.8 kilos of pure.  It has a street value of around about $1.4m.  I take into account the fact that it is not at the high end of commercial quantity or attempted commercial quantity importations.

5Your role in the enterprise is limited.  You were in company with the primary Australian accused.  You participated in anti-surveillance activities to ensure you were not being watched by police, and you were present when the crate containing the drugs was opened, and you assisted in removal of the debris once that was done.  There is no clear evidence as to what you were to receive from your activities, but it is an inference that you were to receive some payment for your assistance in the case.  The exact amount is uncertain.

6Your personal history is set out in the submissions of your counsel and in the report of Carla Lechner tendered in Exhibit 2, her report to the court.  You were born in Nigeria, and your childhood involved the unrest and violence that occurred in that country throughout your childhood.

7You are a married man.  You have three children.  You left Nigeria with that family in 2001 and moved to South Africa.  Your family is still there, and you came to Australia in 2014 to study.  You have been employed and sending money to your family since.  You have been educated.  You have obtained a bachelor in computer science from Monash University.  You have no prior convictions of any sort, and you fall to be sentenced as a man with no prior convictions and of previous good character.

8There are a number of factors that I take into account in your favour in sentencing you.  Firstly, I acknowledge that you were not alleged to have been involved in arranging the importation of the drugs.  Your role is simply as I outlined it, assisting in dealing with them when they were in Australia.  You were involved in the transportation, anti-surveillance and opening the consignment.

9You are not an Australian citizen.  You will be deported in all probability as a result of the sentence I am about to impose, and I take into account the fact that you will find your time in custody more onerous because of the fact that you have effectively been additionally punished by having the threat of deportation hanging over your head, and you have lost the opportunity to settle permanently in this country.

10I take into account your plea of guilty.  By pleading guilty, you have spared the community the time and expense of a criminal trial, and it was of considerable benefit in that regard as far as utilitarian benefit.  That benefit is increased because of the effect that COVID-19 has had upon our legal justice system, and you are entitled to an even greater reduction in sentence to reflect not only your pleas of guilty but the increased value of those pleas in the time of the pandemic.

11I take into account your deprived background in a general way although it is not submitted by your counsel that the principles in Bugmy are enlivened.  I take into account your absence of prior convictions and your otherwise good character, and I accept that your prospects of rehabilitation are reasonable given your absence of prior convictions and the way in which you have behaved in custody.  To a large extent, your prospects of rehabilitation are not really relevant because of the fact that you will be in all certainty deported from this country.

12I take into account the conditions in which you will serve your time in custody.  Because of COVID, time in custody is more onerous for prisoners generally, and it is likely to remain that way over the coming years.

13Principles of general deterrence and denunciation of your conduct are the principal sentencing factors in dealing with matters involving attempts to possess imported drugs.  People need to understand that attempting to possess and import drugs into this country will see substantial custodial sentences imposed.  Your counsel properly conceded that no sentence other than imprisonment was appropriate in your case, and as always, a gaol sentence must be the last sentencing option.

14For reasons that I spelled out during the course of your sentencing indication, I have factored in in an intuitive way all the matters that I listed and all the matters urged upon me by your counsel.  On the one charge of attempting to possess a commercial quantity of a border controlled drug reasonably suspected to have been unlawfully imported, you are convicted and sentenced to a term of imprisonment of five years and six months.  I order that you serve three years and six months of that sentence before being eligible for parole, and I declare - what is the amount of pre-sentence detention as of today?

15MS CARETTI:  Your Honour, not including today, it is 357 days.

16HIS HONOUR: I declare that 357 days of the sentence I have just imposed, not including today, has already been served by way of pre-sentence detention. I indicate that but for your pleas of guilty pursuant to s6AAA of the
Sentencing Act, that I would have imposed a term of imprisonment of eight years and six months with a non-parole period of six years.  Anything else required?

17MS HUGHES:  No, Your Honour.

18MS CARETTI:  Nothing from my perspective, Your Honour.

19HIS HONOUR:  All right, thank you.  You understand the effect of the order I have made, Mr Iwunze?

20OFFENDER:  Yes, Your Honour.

21HIS HONOUR:  All right, thank you.  I will terminate the link.  Thank you for your attention, Ms Hughes, and I will terminate your link as well.

22MS HUGHES:  As the court pleases, thank you, Your Honour.

23HIS HONOUR:  All right.  I will adjourn now until 2.15 this afternoon, thank you.

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