CDirector of Public Prosecutions v Kromah

[2017] VCC 2014

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-02087
CR 16-02089

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

RAHEEM KROMAH
AUGUSTUS ROBINSON

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2017 & 18 December 2017
DATE OF SENTENCE:	21 December 2017
CASE MAY BE CITED AS:	CDPP v Kromah
MEDIUM NEUTRAL CITATION:	[2017] VCC 2014

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr D. Holding	Commonwealth Director of Public Prosecutions
For Accused Kromah	Mr J. Bayles	Pica Criminal Lawyers
For Accused Robinson	Mr R. Blackwell	Greg Thomas Barrister & Solicitor

HIS HONOUR:

1Augustus Robinson and Raheem Kromah, you have each pleaded guilty to one charge of attempted possession of a commercial quantity of an unlawful imported border controlled drug, contrary to s.11(1) of the Criminal Code (Cth), the maximum penalty for that offence is life imprisonment, or a fine of $7,500 penalty units, or both.   

2In the case of Robinson, you have also agreed, pursuant to s.16BA of the Crimes Act 1914, that another offence, namely attempt to possess a commercial quantity of an unlawful imported border controlled drug, contrary to s.11(1) of the Criminal Code is to be taken into account, in arriving at the appropriate proportionate sentence in your case. You have not pleaded guilty to that charge, but the principles applicable to me taking it into account, are set out in the CDPP v KMD [2015] VSCA 255.

3Whilst in each case, your pleas were entered shortly prior to the trial, and in the case of Kromah, after legal argument had been conducted, they are nevertheless high value pleas, which have spared the community the cost and burden of complex criminal trial proceedings, and I have taken your pleas into account in your favour, in mitigation of sentence.

4Augustus Robinson, you have admitted two prior court appearances in 2015 and 2005, for offences of obtaining a financial advantage from the Commonwealth and aggravated burglary.

5At the time of your offending in this case, you were serving a Community Correction Order, which had been imposed upon you on 6 November 2015.

6Raheem Kromah, you have no relevant criminal history.

7On 23 November 2017, an alleged co-offender Mulbah Singbeh, was found not guilty by the jury after a trial that had occupied eight sitting days.  On
8 November 2017, I ordered that another alleged co-offender, Sehwhy Nipoe, be tried separately from the others.

8A prosecution opening was read to the court and tendered in evidence in each case, and your offending may be summarised as follows –

9On 16 November 2015, a consignment of eight boxes, each containing a pottery horse statue, arrived in Australia from China.  The consignment was addressed to Ishmael Muhadat of 153 Graham Street, Broadmeadows.  The statues were examined by Australian Border Force and Australian Federal Police officers, and found to contain 10.941 kilograms of a crystalline substance,
8.634 kilograms of which was pure methamphetamine.

10A shipping company, Airwave Australia, was to deliver the consignment upon customs clearance.  On 23 November 2015, Robinson and Nipoe paid $4761.81 to Airwave Australia by bank transfer from the Bank of Queensland in Werribee.  At all material times, Robinson held himself out to be Ishmael Muhadat.

11Following an investigation by AFP officers, the controlled delivery of the eight boxes took place at Airwave Australia on 1 December 2015.  The consignment was collected in a courier van driven by Singbeh, who had been enlisted that day by Robinson and Nipoe.  Singbeh was instructed to drive the van to various locations, in the northern suburbs of Melbourne, with the purpose of revealing whether or not the vehicle was under observation by investigators.

12The directions and instructions were given to Singbeh by Robinson. 
Kromah and Nipoe followed and observed the vehicle in a Nissan Dualis, driven by Kromah.  The van was driven around the northern suburbs for approximately three hours, and I am satisfied, that for most of that time, it was under observation or nearby to the vehicle, driven by Kromah, in which Nipoe was also travelling. Nipoe was in regular contact by telephone with Robinson for that purpose.

13At 4.43 pm, the van was intercepted and Singbeh was arrested.  The Dualis was intercepted at 4.55 pm, and Nipoe and Kromah were arrested.

14Kromah was interviewed by investigators on 1 December 2015 and stated that he had been enlisted by Nipoe that day, to drive him around, because Nipoe had lost his driver's license.  He denied any knowledge of the contents of the van. On 17 February 2016, in a further interview with investigators, he repeated this account.

15Following examination of Kromah's telephone by investigators, webchat messages revealed Kromah was in debt, and expected to receive $30,000 in December, "If the foods enter safely".  I am satisfied this was a reference to the methylamphetamine, the subject of the charge before the court.

16On 17 February 2016, a warrant was executed at Robinson's premises in Truganina, and he was charged with the offence before the court.  Kromah was also arrested on this day and repeated the account, given to investigators in his interview on 1 December 2015.  He was also charged.

17Robinson has also agreed that the court take into account, a further offence of attempt to possess a commercial quantity of an unlawful imported border controlled drug.  This offending concerns the arrival in Australian from
Hong Kong, on 8 November 2015, of two boxes containing a pottery horse statue each, which in turn contained a total of 2 kilograms of pure methamphetamine.

18Robinson held himself out to be the consignee James Wanga.  He arranged for his brother-in-law and another person to attempt to collect the consignment on 18 November 2015 from TNT, but the consignment was not released to them.

19I am satisfied in the case of Robinson, that you were engaged at a senior and trusted level, in the receipt of imported border control drugs into this country.  Your role was managerial in nature, and you were motivated by the vast profits to be obtained from your offending.

20The value of the substantial quantity of drugs, the subject of the charge you have pleaded guilty to, was between $800,000 - $1.3m, if sold in kilogram lots, and $2.7m - $5.4m, if sold in gram lots.

21The offence I am also taking into account, concern drugs valued at approximately one quarter of these sums.

22The principles I must apply in sentencing you are well established.  A person such as you, who are motivated to offend in this matter for profit, must expect a significant term of imprisonment on conviction.  The sentence must be calculated to deter others from offending in this manner, and by reason of Robison's senior role in the offending, you must also be deterred from
re-offending.  You must also be punished for your crime.

23In the case of Kromah, the evidence discloses that you were to play a lesser but nevertheless, important role in the offence, and you too expected to receive a substantial sum of money for your offending.

24Border controlled drugs, such as methylamphetamine cause incalculable damage to our society, and it is the fundamental role of the courts to protect that society from offending of this type.

25I now turn to your personal circumstances.

26Augustus Robinson, you were born in Sierra Leone on 23 August 1985, and are now aged 32.  You fled the civil war in that country when you were 12 years old, and lived in a refugee camp in Ghana, until migrating to Australia in 2004 on a humanitarian visa.

27You are not an Australian citizen or permanent resident, and you face deportation on completion of your sentence.  I accept that this is a circumstance that will weigh heavily upon you during your imprisonment.

28Your parents were located in Sierra Leone by the Red Cross in 2005, and they continue to reside there.  You have sought family reunification to permit them to travel to Australia without success.  I have received in evidence a number of documents regarding this, and I accept that your desire to reunite with your family has been a high priority for you.

29At the time of your offending, you were in a de facto relationship, and you have a son who is now aged four years.

30Your work history is sporadic, and you have not been able to maintain stable employment.

31I have received in evidence a psychological report of Dr Aaron Cunningham, setting out your background and psychological profile.  I accept that your traumatic developmental years has led you to develop persistent anxiety and depression, which has in turn led to the development of alcohol abuse disorder, and drug abuse.  You are medicated for this and require ongoing treatment and counselling for these conditions, and I accept that this will compound the hardship that imprisonment will have upon you. However, it would appear that you are coping well in custody, and are now studying drafting. 

32In my opinion, your prospects of rehabilitation must be approached with caution, and there was no significant evidence placed before me to suggest otherwise.  Furthermore, you did not participate in an interview with the investigators on your arrest, and there has been no cooperation by you, with them, in respect of this case.

33I have also had regard to the other offending I am required to take into account in your case in determining, in particular, my assessment of your prospects for rehabilitation, and the significance of specific deterrence in your case.

34Raheem Kromah, you were born on 1 January 1995 in Ivory Coast, and are now aged 22.  You were 20 at the time of your offending.  I accept that youth is a significant sentencing factor in your case, although this must also be balanced with the seriousness of your offending.

35You too fled your country due to the outbreak of civil war when you were eight.  You lived in a refugee camp in Guinea before travelling to Brisbane on a humanitarian visa when you were ten, with your uncle, aunt and cousins.

36You completed Year 12 at Brisbane State High in 2012, and went on to complete a dual diploma in business and management.  You had thought your parents had died in the civil war in Ivory Coast, but in 2012, you became aware that your mother was still alive.  She died in 2013.

37You are a talented sportsman, and prior to your arrest on other charges in 2014, I accept you were actively involved in the African community in Brisbane.

38On 26 June 2014, you were arrested and charged with conspiracy to import a commercial quantity of a border controlled drug, namely methylamphetamine.  You were remanded in custody, following extradition to Victoria for committal.

39You were bailed on 8 September 2014, having served 75 days on remand.

40The contested committal took place on 24 March 2015, and you were committed for trial in this court.  Two trials of that matter have resulted in the jury failing to reach a unanimous verdict, and it was discontinued by the Commonwealth Director of Public Prosecutions on 13 November 2017, following your plea of guilty to the charge before the court.

41This chronology demonstrates that you were on bail, and had been committed for trial for an extremely serious drug-related offence when you committed this offence.  You therefore chose to re-offend in that context, which is relevant to your moral culpability for this offence.

42I have not taken the discontinued offence in account in arriving at the sentence in this case, other than in the way that I have referred to. 

43You were, however, 18 when charged with the discontinued offence, and 20 when you committed this offence, and so my assessment of your moral culpability must also be concerned in the context of your youth.

44I have received in evidence a psychological report of Mr Steven Gault, setting out your background and psychological profile.  I accept that your childhood and formative years were seriously disrupted by reason of your persecution, and resulting life as a displaced person.  I accept this has in turn, led you to develop substance abuse disorder, and depression for which you have been medicated.

45Mr Gault does not identify any mental illness or other psychiatric disturbance in your case.  I accept that your prospects for rehabilitation may properly be described as good, and the sentence I impose must support that, due to your youth.  This must, however, be balanced with the seriousness of your offending, and the fact that it occurred when you were on bail, having been committed for trial for other serious drug-related offending.

46It was also submitted on your behalf that I should take the time spent by you on remand for the discontinued offence into account, and I have reduced the head sentence and non-parole period in your case, that I otherwise would have imposed for that reason.

47Your family are located in Brisbane, as is a close friend, Momwai Tumavavey, who provided a very positive reference to the court in support of you.  The fact that your family and close associates are in Queensland, means that you will experience a degree of isolation in prison, and visits will be infrequent.

48Could you both stand up please.

49In the case of Robinson, in respect of the charge of attempt of possession of a commercial quantity of an unlawfully imported border controlled drug, you are convicted and sentenced to be imprisoned for 11 years. 

50I direct that you serve eight years before becoming eligible for release on parole.

51I declare that you served 673 days, not including today, by way of pre-sentence detention. 

52But for your plea of guilty, I would have imposed a total effective term of imprisonment of 13 years, with a non-parole period of 10 years.

53In the case of Kromah, you are convicted and sentenced to be imprisoned for seven years and three months. 

54I direct that you serve three years and nine months, before becoming eligible for release on parole.

55I declare that you have served 673 days by way of pre-sentence detention. 

56But for your plea of guilty, I would have sentenced you to a total effective term of imprisonment of nine years, and fixed a non-parole period of five years and six months.

57You can both be seated.  Are there any further orders required, Ms Thompson?

58MS THOMPSON:  No.  Thank you, Your Honour.

59MR PAGE:  Nothing, Your Honour.

60HIS HONOUR:  Thank you.  The two accused can be removed from the court, thank you.

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