CDirector of Public Prosecutions v Nwagbo
[2025] VCC 469
•15 April 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR 21-00794
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| ONYEKA NWAGBO |
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JUDGE: | HIS HONOUR JUDGE MURPHY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 March 2025 |
DATE OF SENTENCE: | 15 April 2025 |
CASE MAY BE CITED AS: | CDPP v Nwagbo |
MEDIUM NEUTRAL CITATION: | [2025] VCC 469 |
REASONS FOR SENTENCE
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Subject: Criminal Sentence
Catchwords: Attempted to possess a commercial quantity of an unlawfully imported border controlled drug – Protracted procedural history – Mutual assistance request – Chinese Anti-Smuggling Bureau – International smuggling operation – Nigerian migrant – Deprived background – Fled home country – Impact of custody of family and dependents.
Legislation Cited: Crimes Act 1914 (Cth) – Foreign Evidence Act 1994 (Cth) – Criminal Code Act 1995 (Cth).
Cases Cited: R v Verdins [2007] VSCA 102 – Schanker v The Queen [2018] VSCA 94 – Beqiri v R [2017] VSCA 112 – R v Todd (1979) NSWLR 517 – R v Carey (1998) 4 VR 13 – Nguyen & Phommalysack v The Queen (2011) 31 VR 673 – Nguyen and Pham (2010) 205 A Crim R – Godwin (a pseudonym) v The King (2024) VSCA 225.
Sentence: 15 and a half years imprisonment with a 10 year non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Saunders with | Office of Public Prosecutions |
For the Accused | Mr C. Farrington with | Milides Lawyers |
HIS HONOUR:
Introduction
1Onyeka Evan Nwagbo, on 10 December 2024, following a trial involving 17 sitting days including five days of jury deliberations, a jury of 12 found you guilty of one charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, contrary to s11.1(1) of the Criminal Code Act 1914 (Cth). The offence carries a maximum penalty of life imprisonment.
Procedural History
2This matter has been the subject of a protracted procedural history. The index offending is alleged to have occurred between 6 and 13 January 2015. You were originally found guilty by a jury on 9 March 2018, and were sentenced by another judge of this court on 15 June 2018.
3Following a successful appeal on the 16 April 2021 [2021] VSCA 92, the matter was remitted to the County Court for retrial, and you were granted bail a short time later. After some further delays, including due to Covid, funding issues, changes in legal practitioners and the Mutual Assistance Request, the matter was listed for final directions on 27 October 2023. Subsequently between
29 November 2023 and 4 December 2023, there was, with the cooperation of the Chinese police authorities and the AFP, cross examination of a number of officers of the Anti Smuggling Bureau, as well as expert telecommunications witnesses proposed to be called by the prosecution.4Between 25 and 27 March 2024, there was cross examination of the interpreters proposed to be called by the prosecution and further pretrial argument.
5As the result of pre-trial argument, I handed down a pre-trial ruling on 12 April 2024. The proposed trial date of 29 April had to be vacated. The ruling was the subject of an interlocutory appeal, and a further June 2024 trial date had to be vacated. The appeal was refused by the Court of Appeal on 10 October 2024.[1] The Court rejected the challenge to the admissibility of the translations of the intercepted telephone conversations, and the proposed evidence by the telecommunications expert as to the movements of two mobile phones. The matter was subsequently listed for re-trial to commence on 11 November 2024. At the commencement of the trial, I ruled that the Crown would be entitled to rely on the evidence of the Chinese Anti-Smuggling Bureau officers, under the provisions of the Foreign Evidence Act 1994 (Cth), without the need for them to be available for cross examination.[2]
[1]Godwin (a pseudonym) v The King (2024) VSCA 225
[2] Ruling No. 3, 12 November 2024.
6The guilty verdict of the retrial is that for which you are to be sentenced today. You must be sentenced consistently with the jury verdict.
The prosecution case at trial
7The central issue in the trial was whether you were the user of a mobile phone number ending in 582. As identified by the Court of Appeal in the appeal judgement at [10], in order to succeed in its case, the prosecution had to satisfy the jury beyond reasonable doubt that you were the user of that phone. Should the jury be so satisfied, then it would be entitled to find beyond reasonable doubt that you were guilty of the offence.
8The prosecution case put before the jury was similar to that upon which you were sentenced by Her Honour Judge Hogan, as outlined in her sentencing reasons, and as outlined in the amended prosecution opening dated 18 June 2021, although the prosecution relied on evidence from the Anti-Smuggling Bureau, obtained under a Mutual Assistance Request, pursuant to the Foreign Evidence Act 1994 (Cth). Unlike in the first trial, the prosecution did not rely on linguistic expert evidence as to whether the intercepted calls were made by you.
9The case put before the jury by the prosecution was a circumstantial one, with a large volume of evidence relied upon to support the charge that, between
6 and 13 January 2015, you had attempted to obtain possession of a total quantity of 19.7760 kilograms of pure methamphetamine, which was concealed within a consignment described as 'body slimmers and massages'.10This was destined to be sent from China to Australia addressed to
Richard Sarpong, Dumfris (sic) Street Deer Park Victoria 3020 Australia,
Tel: 614-70628582.11The Chinese Anti-smuggling Bureau had detected the drugs located in the slimming machines prior to the goods leaving China. They removed a total weight of crystalline substances of 24.9697 kilograms, of which 79.2 per cent was found to be pure methamphetamine. The consignment was repackaged without the illicit substances and sent to Australia, with AFP having been notified.
12On 22 December 2014, the consignment arrived in Sydney via KS Global Air and Sea Logistics Pty Ltd ('KS Global'). KS Global had received information in China that a mobile telephone number ending in 582 was the relevant contact number for the consignee. This was subscribed in a false name and was said by the Crown to be a mobile telephone used by you. In short, there was evidence of many telephone conversations made using that telephone number by a person who mainly spoke in the Igbo dialect from Nigeria, although there were also calls from South Africa. The AFP legally intercepted these calls and a translation of them, save for a few calls which were in English, was provided to the jury as Exhibit '10'. They include coded references to drugs and dealing with guys worth a huge amount of money in China. They refer to illegal substances, dates of expected delivery, the need for an email address and scanned driver’s licence, the need to pay freight charges, reference to the delivery address and a later change of delivery address, the logistics of the consignment being dropped at a delivery address without needing anyone to sign for it and the fact that the consignment was worth a lot of money. The calls also involve discussions about providing an email address and payment of freight charges due to KS Global. There is also reference to the need to be careful as to whether to open particular emails so as to avoid revealing the relevant IP address. Arrangements were made with AFP officers posing as a courier company, to arrange the delivery to an address which was altered at the last minute from the address on the consignment to Arnold Street, West Sunshine. On 12 January 2015, this change of address was texted to the number ending in 582 from a phone in Nigeria and the 582 number texted the change of address to the AFP, posing as the courier company, as well as to KS Global.
13Federal police had repacked the consignment after placing inert substances inside, in place of the drugs which had been removed in China. On 12 January 2015, a controlled delivery of the consignment was made to Arnold Street, Sunshine West. A listening device had been placed within the consignment. The consignment was left at the address at about 2.00 pm and at 4.11 pm, a female voice, Karen Zammit, made a telephone call in which it was discussed what would be required to move the consignment. Thereafter, the AFP, who were conducting surveillance, noted the pick-up of the consignment by a Toyota Camry which travelled to an address in the vicinity of 43 Sydney Road, Albion, Victoria. The Camry was towing a closed trailer, which had been hired by one Mr Polouete, who was the partner of Karen Zammit.
14That evening, you, as the alleged user of the number ending in 582, made a call to a telephone in Nigeria, discussing the movement of the consignment. Subsequently at 7.15 pm, the consignment was taken to the car park of the Kealba Hotel in St Albans. Twenty minutes after that call, you are alleged to have used the 582 number to connect with another phone in Nigeria to discuss how many pieces were within the consignment. A short time later, you are said to have phoned yet another number in Nigeria. You effectively gave instructions that you will not go near the 'children' (who had the consignment) and that it should be left for four hours and may be taken to their house to keep it there, but if there was no movement from police after that, it could be moved again. In a subsequent phone call received on the 582 phone, the caller tells you 'It’s up to 25' (said by the Crown to be a reference to the gross weight of the concealed substances which, in China, weighed almost 25 kg) and you tell the caller that only boxes 'with white stuff' should be put in the car.
15Later at 9.28 pm on that same evening, 12 January 2015, you using the same telephone number, 582 number to call another number in Nigeria, where you refer to not being able to go to the car park because you do not know whether there are cameras there. Subsequently, between 11.08 pm and 11.10 pm, there are 13 phone calls between the number ending in 582, said to be used by you, and a Nigerian phone number, in which you make arrangements to attend an unspecified location to inspect and take receipt of the consignment. Between 11.10 pm and 11.20 pm, the consignment was towed by the Camry to Annersley St, Braybrook. There, it was transferred into a white Toyota Hilux Utility (1DL 9QR). This Hilux was registered to you at your home address at Wahgunyah Drive, St Albans. Both vehicles then travelled to Gilbert Street, Braybrook, a few streets away.
16The consignment was then taken in your Hilux vehicle to Graham Street, Sunshine, where the boxes were opened. AFP subsequently observed wrappings in the front of that address and at the rear of the Hilux. Your Hilux then departed and went back to the Kealba Hotel, but soon after that, police conducting surveillance lost sight of it.
17In intercepted phone calls on 13 January 2015, you, the alleged user of the number ending in 582, contacted telephone numbers in Nigeria and expressed concern about police and cars following you and mentioned that you had successfully managed to lose those in pursuit by going into a casino, presumably being a reference to the Kealba Hotel.
18There is specific reference to the total number of boxes being 13 and having been told that there is 'whitish shining stuff' in them. Subsequent phone calls make it clear that there are 13 boxes, of which 10 are flat, and the ones without anything in them, should be three in number. The evidence is that 10 of the boxes contained body slimmers and three contained foot massagers. It was in the body slimming machines that the crystalline substituted substance was located.
19At approximately 9.35 pm, on 13 January 2015, the consignment was loaded into a Honda CRV (PPG 815) at Graham Street and driven back to the car park of the Kealba Hotel, where it was left until approximately 10.55 pm. A Mitsubishi Outlander vehicle (YHV 020), was seen by AFP conducting activities consistent with counter-surveillance in conjunction with the Honda CRV. At 10.04 pm, an African male matching your description drove through the car park of the Kealba Hotel in a red Toyota Yaris (ZEY 134). This vehicle was registered in the name of your wife, Pin-Chun Chen, at the address of Wahgunyah Drive. Some forty minutes later, at 10.44 pm, AFP observed the same African male matching your description re-enter the Kealba Hotel car park driving the red Toyota Yaris and park it in a position overlooking the vicinity where the Honda CRV containing the consignment was parked. At 10.45 pm, that same male matching your description was seen to walk into the entrance of the Kealba Pharmacy and then return to the Toyota Yaris vehicle at 10.46 pm, and then remain in the vehicle until 10.53 pm. Then, that vehicle, the Honda CRV containing the consignment and the Mitsubishi Outlander, which had been conducting counter-surveillance, all left the car park.
20At 3.29 am on 14 January 2015, your white Toyota Hilux was sighted by AFP at the rear of your home at Wahgunyah Drive, with its registration plates having been removed.
21Subsequently, at 12.35 am on Wednesday, 14 January 2015, AFP observed a fire in a location towards the southern end of Clarkes Road, Brookfield. These were the remnants of the 10 slimming machines which had been destroyed.
22The prosecution relied on the content of a number of the intercepted phone calls on the 582 number, pointing to you as its user. On 3 January 2015, the user of the phone told the person to whom he was speaking, that he lives in Melbourne and not to use his name, as this is 'not a clean mission'. On 6 January 2015, when the user of the 582 number telephoned a male, the person who answered stated, 'Onyeka, Onyeka, hello! Onyeka!' and the user of the 582 number responded, 'Don’t call out my name again' and asked 'Why are you calling my name?'.
23This call (call 11) was the subject of sustained disputed evidence. The jury must be taken to have accepted the evidence of the AFP interpreter that your name was in fact used in call 11.
24Similarly, call 23 was the subject of disputed evidence, with conflicting arguments about the dialects of the Igbo language. Again, the jury must be taken to have accepted the prosecution’s evidence.
25In addition, the prosecution relied upon evidence from Federal Agent Horne, who had analysed call charge records relating to the mobile telephone number ending in 582 and a mobile telephone number ending in 549, which was registered in your name. Mr Horne’s oral evidence, together with Exhibits 11A and Exhibit 12, was that on multiple occasions between 5 December 2014 and 12 January 2015, these two phones had been shown to be making calls in the same overlapping vicinity, but not to each other and not at the same time. The majority of the calls were within the vicinity of the Keilor Downs South/Sunshine North area and your home address at Wahgunyah Drive, St Albans falls within the radius of those cell towers. In addition, both phones travelled to the Gold Coast between 10 and 15 December 2014 and to Adelaide on 29 December 2014, and there was evidence that you had travelled by air to the Gold Coast and to Adelaide on those relevant dates. In addition, the phones were shown to have been used in the vicinity of Phillip Island on 17 December 2014.
26In order to refute the strong prosecution case, you called character witnesses and proceeded to give evidence in your own defence. You were subject to searching cross examination by the learned prosecutor.
27In your evidence you stated that you had a social circle in 2014 and 2015, which comprised basically Nigerians, but your closest associate was a man called Nmaemeka, who lived in Sunshine not far from your house in St Albans, who you had met in November 2014. You stated that this person, Nmaemeka, also called Onyeka, was assisting you in a business you had that involved purchasing used light trucks, second hand motor vehicle parts, solar panels, generators and other second-hand equipment, and packing them into containers and shipping them to Nigeria.
28He had travelled to the Gold Coast with you and your wife and her friends and Nmaemeka had also gone to Adelaide at the same time as yourself. You also stated that he had travelled to Phillip Island with you. He had been travelling with you when you were purchasing various items for the business. You stated that you had loaned your white Toyota Hilux vehicle to Nmaemeka on the evening of 13 January 2015.
29You stated that in December 2014, you had met a person called Chris through Nmaemeka. Chris lived in Sydney. You did not know his last name. You had travelled to Adelaide with Nmaemeka to explore a business opportunity with a person of Afghani extraction at the suggestion of Chris.
30Chris had come to stay at your house for four days before you were arrested by police on 14 January 2015.
31You denied that you had driven your wife’s red Toyota Yaris on the first occasion that police saw it in the Kealba Hotel car park vicinity at 10.04 pm on 13 January. You stated that Chris had borrowed it in order to go and buy something. However, you stated that at an earlier time,9.44 pm, you had been there to buy a supplement at the pharmacy, and you produced a receipt for that purchase (Exhibit 1).
32You claimed that on the second occasion, when the police saw that vehicle, you were driving it and you had, again, taken it out in order to go to the pharmacy. This time it was to buy Chris a toothbrush. You claimed that you had then left the pharmacy and gone to a petrol station. You were unable to explain how this did not tally with police surveillance as to the movement of the vehicle after you said you had left the pharmacy. You stated that although you had lent your Toyota Hilux vehicle to Nmaemeka, it was returned to your house by Chris around midnight, but Chris did not stay at your house that night. You denied any knowledge of the offending conduct. You were unable to explain how your vehicle was found by police with its registration plates missing in the rear yard of your home on 14 January 2015.
33It is plain from the jury’s verdict that they did not accept your version of events which sought to set up what was in effect an alibi, and were satisfied beyond reasonable doubt on the evidence presented by the Crown, that you were the user of the telephone number ending in 582. This was the person intimately connected with the consignment and who controlled its movement.
Seriousness of the offence and moral culpability
34In sentencing I am required to have regard to the seriousness of the offence and your moral culpability. The prosecution position was that you were the Australian organiser of the importation. I make similar findings to those of Her Honour Judge Hogan.
35You were the Melbourne based member of an international trafficking organisation and were involved at the highest level in terms of the domestic operation. I am satisfied that you had knowledge of the size and source of the consignment, and your role was to ensure its safe undetected arrival in Melbourne. You took steps to ensure that the consignment arrived in Melbourne under the false name of Richard Sarpong. You were involved in the implementation of a sophisticated anti-surveillance scheme using coded language and which employed other people to initially take possession of the consignment. The purpose of this arrangement was to avoid being apprehended in the event that the authorities had detected the drugs in the consignment during the importation process.
36The clear inference is that once the consignment could be safely accessed, you would take possession of it for the purposes of distributing the drugs within Australia.
37While the prosecution could not point to your knowledge of the actual amount of drugs to be imported, it can be inferred by the elaborate arrangements to which you were a party, that this was a significant shipment and the only reasonable inference available is that you expected substantial financial return from your involvement.
38Overall, while the authorities disavow the need to ascribe a title to an offender in these types of cases, and to focus on the role actually undertaken, I am satisfied that you played a key executive role in this attempted importation of a significant quantity of a highly valuable illegal drug.
39Significantly your role was extensive and covered a period wider than the actual offence. You were liaising with the shipping agents. You were supervising others ['the children'] and had others engage in anti-surveillance. You were prepared to make use of vehicles in your own name and that of your spouse. You were in effect prepared to establish a false alibi by the visits to the pharmacy, to explain your presence in the vicinity of the Kealba Hotel, while the shipment was in the car park.
Your Personal Circumstances
40In sentencing you I take into account your personal circumstances as outlined by your counsel on the plea.
41You were born in Nigeria in October 1978 and you are now 46 years old.
42You grew up in Eastern Nigeria. Your father was the king of your village. Your father worked for a coal company before running his own business, dealing with motorcycle spare parts. Your mother passed away when you were in your early 20s. You married in 2005, having two children, a son and a daughter.
43Your sister and father were murdered by your uncle, in an effort to take the position of king. Your cousin was also murdered in similar circumstances. Although the kingship was hereditary, you did not take your father’s title due to fear you may also be killed. You fled Nigeria, arriving in Australia in early 2009 on a tourist visa, and immediately sought asylum. Your wife and children remained in Nigeria. They went into hiding with the assistance of your wife’s parents.
44You spent three months in Immigration Detention before being accepted for refugee status and obtaining permanent residency in 2009 and Australian Citizenship in 2014. After being released from detention, you attended language lessons where you met your now wife, Peggy Chen. You began living together in 2012 and were married in 2015.
45You and Ms Chen have three children together, a son aged 11 and two daughters (nine and six).
46In 2014, you temporarily returned to Nigeria in an effort to locate your first wife and children. You were unable to speak with your children. Your first wife and her parents stated that they wanted nothing to do with you.
47You completed primary, secondary and tertiary education in Nigeria. You studied mechanical engineering at university. At the age of 22, you moved to Lagos and commenced your own business selling air conditioners and computer parts. You were again forced to relocate from Lagos to Ibadan, to avoid detection by your uncle.
48After arriving in Australia, you completed a Food Handling Certificate at AMES in St Albans and worked at Coles. You then enrolled at Victoria University where you completed further study, obtaining an Advanced Diploma in Manufacturing Engineering. You went on to work for one year with Toll IPEC before returning to work for Coles in 2013.
49It was at this time that you commenced your export business, the operation about which you gave extensive evidence of at trial.
50After release from custody on bail, you recommenced the business.
Character Evidence
51At the trial you called character witnesses, and on the plea your counsel filed three character references from Dr Adebukola Juliana Ojediran, Kiera Stevens and Nkechi Umermezia.
52Dr Ojediran, who has known you for over a decade, describes you as a person of ‘exceptional character and strong moral compass’ and highlights your contributions to the Nigerian community in Victoria. Dr Ojediran, who was present in court for much of the trial, describes the disconnect between the person she knows and your offending.
53Ms Stevens, whom you refer to as your ‘Australian mum’, describes you as a good husband, loving father and a caring and helpful ‘son’. Ms Stevens met you as a volunteer while you were in immigration detention and she has remained in your life throughout your entire time in Australia. She maintains your innocence and good character, having provided character evidence at trial and again on the plea.
54Ms Umemezia describes you as a ‘hard-working model citizen’, who contributes to the Australian community. She highlights your commitment to your business and its employees, as well as you volunteering as a coach at your son’s soccer club. She notes the toll that your absence has had on your family since you entered custody after the trial.
55Your counsel relied on the references to submit that this offending was out of character.
Sentencing submissions on the plea
56On the plea your counsel did not seek to dispute the seriousness of your involvement or to urge the court to make findings different from those undertaken by Her Honour Judge Hogan.
57Rather, relying on the Delphic utterance in the conviction appeal at [117] to the 'very stern sentence', the submission was that the sentence imposed by Her Honour was manifestly excessive.
58It was urged that there was no reason why the Court should be bound by the sentence that had been imposed. I accept that submission and reach my own conclusion on the appropriate sentence.
59The key thrust of your counsel’s submission was that in consideration of the delay since the index offending, the impact of your imprisonment on your dependents and your path to rehabilitation since the offending, were such that a lesser sentence ought be imposed.
Sentencing Principles and Considerations for Drug Importation Cases
60In sentencing for this type of offending, I must have regard to the matters in s16A of the Crimes Act 1914 (Cth).
61The principles relevant to sentencing for drug offences contrary to the Criminal Code (Cth) are uncontroversial and well-established.
62In Nguyen & Phommalysack v The Queen (2011) 31 VR 673 at [34], Maxwell P re-stated those principles as set out in Nguyen and Pham (2010) 205 A Crim R; 106 (NSWCCA) as follows:
1. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
2. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court.
3. It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the ‘mastermind’ does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
5. Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence, even to the extent of assessing that a particular offence is in the worst category of its type. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
6. As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit. (The fact that the offender needs money to pay off a debt does not necessarily affect culpability.)
7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case.
8. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise, the interests of general deterrence are not served.
10. The prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor than it might otherwise be given.
11. Where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions.
12. Where an offender is to be sentenced for an attempted possession offence, it should be kept in mind that the act of attempted possession can be attended by a wide range of moral culpability, so that the circumstances in which a person so charged attempted to come into possession of the drug, and what it was that the person intended to do with that drug, are relevant to determining the degree of moral culpability attached to the act of attempted possession itself. A sentencing judge should have regard to the offender’s involvement in the overall transaction for the purpose of determining the offender’s degree of involvement in a drug-smuggling enterprise.
13. Offences of attempting to possess imported drugs are not, for that reason, in a less serious category than that of importing the drugs.
63In R v Carey (1998) 4 VR 13, Winneke P, who delivered the court’s unanimous judgment stated:
Those who engage in the illicit drug trade, no matter what their status in the enterprise, must expect heavy sentences in which general deterrence will be the principal purpose of the punishment.
SENTENCING Legislation
64You are to be sentenced in accordance with the provisions of Part 1B of the Crimes Act 1914 (Cth) ('the Act').
65Section 17A(1) of the Act provides that a court shall not pass a sentence of imprisonment on any person for a federal offence unless, having considered all other available sentences, the court is satisfied no other sentence is appropriate in the circumstances.
66Section 16A of the Act sets out the matters to which a court is to have regard when passing sentence on an offender for a federal offence.
67Under section 16A(1), the court is required to impose a sentence of a severity appropriate in all the circumstances of the offence. In determining the sentence appropriate in all the circumstances of the offence, the court is required to take into account the matters listed in s16A(2), and any other matters, insofar as they are relevant and known to the court.
68In the circumstances of this case, having regard to your involvement in the attempted importation, and the quantum of the attempted importation, being just over 26 times a commercial quantity of methylamphetamine, outlined in the depositions as being worth almost $5.5 million wholesale, having regard to the authorities, a substantial sentence of imprisonment must be imposed.
69You must bear high moral culpability for the offending and you have continued to deny any responsibility. There is no remorse or contrition.
70At the plea hearing, your counsel focussed among other things on hardship under s16A(2)(p) of the Crimes Act, i.e. ‘probable effect of a sentence on the offender's family or dependents, and others’, s16A(2)(n), ‘prospects of rehabilitation’ and the issue of delay.
71In considering the subjective matters raised by your counsel, I note that these considerations, including prior good character, although still having salience, are to be given less weight due to the overriding importance of general deterrence and denunciation, for sentencing for what is essentially economic crime. The offence carries a maximum penalty of life imprisonment. The sentence of the court must send a message to all offenders that possible gains are outweighed by the imposition of lengthy sentences.
Hardship under s16A(2)(p)
72In order to rely on hardship, it is not necessary that the circumstances be exceptional. Here your counsel focused on the fact that you were the breadwinner of the family. You have a wife and three young children. You were imprisoned when the youngest child was born. Your wife and children have been forced to go to live with her parents, where she has to become the breadwinner.
73I take into account the hardship imposed on your wife and the children in sentencing you. I also take into account the impact on you of being separated from your wife and children for a significant period, during the children's formative years and your inability to support your family whilst in custody.
Prospects of rehabilitation
74It is always in the community interest that offenders be rehabilitated into society. You have pleaded not guilty and thus there is no insight into your offending, which is a factor in relation to your prospects of rehabilitation. On the other hand, it is now over a decade since the index offending. You are now aged 46 and are very much an older man than you were, when you committed the offence. Your period of incarceration, and then re-incarceration, and the separation from your family is very likely to have had, and will have, a salutary impact on you. The probability of reoffending, while not minimal, is not high. The references tended support the submission from your counsel that you have engaged in a prosocial life whilst in the community. You have also been offence free over the period that you have on bail, both before your first trial, and after the conviction was quashed until your conviction in December 2024. You have also made good use of your time whilst in custody by undertaking a number of courses. Having regard to all these matters, I assess your prospects of rehabilitation as reasonable.
Delay
75On the plea your counsel set out a full procedural history which I incorporate by reference. As noted, the index offending is over a decade ago. You have had the charge, commencing from a contested committal hearing to the first trial, an appeal, further pre-trial hearings, an interlocutory appeal until ultimately the present trial, hanging over your head.
76The delay in this matter is somewhat exceptional. Part of the delay is attributable to your exercise of your appeal rights. You have, however, been left 'in a state of uncertain suspense as to what will happen' [R v Todd (1979) NSWLR 517 at 519 (per Street CJ)], following your conviction appeal. You are to be sentenced for a stale offence. You have served a significant period of imprisonment following the first trial. Part of that was during the height of the Covid pandemic. You were also on stringent bail conditions prior to being released following your initial arrest. To this day you have spent 1308 days in custody. You have been returned to custody after your bail was revoked following your conviction on 10 December 2024.
77Notwithstanding the seriousness of your offending, these matters, as a matter of fairness to you, call for a considerable measure of leniency.
Comparable Cases
78On the plea both counsel referred the Court to a number of cases said to reflect current sentencing practices. These included a list of cases where the sentence was comparable to that imposed by Her Honour Judge Hogan. In those cases, the higher sentences were usually reserved for cases involving more substantial quantities of an unlawful importation and where the offender was in an executive role. Comparable cases are to be considered not on the basis of arithmetic equivalence, but rather to ensure uniformity in approach, where like cases are considered alike and instructively different cases are also considered. I was also referred to the following cases which were said to be comparable, that were imposed following the decision of her honour.
79In Beqiri v R [2017] VSCA 112, the offence involved 23.04 kilograms of pure methamphetamine leading to a sentence of 15 years’ imprisonment and a non-parole period of 11 years.
80The drugs were imported into Australia from USA, concealed within the body of a Chevrolet car. Beqiri was not a mastermind or financier, but was critical in facilitating the enterprise and it can be inferred he expected a substantial financial gain for his involvement.
81Beqiri was 43 years old at time of offence; no prior convictions; steady employment; well regarded in community; would likely be deported on release from custody.
82Schanker v The Queen [2018] VSCA 94 involved two charges of attempt to possess (15 years) and trafficking (nine years). A total effective sentence of 18 years imprisonment with a non-parole period of 15 years, for a volume of 5,896 grams of pure methamphetamine, which was concealed in bicycle seats and parts.
83The applicant was a ‘principal’ in the attempted importation in that he was working for himself and not simply seeking to collect consignment on behalf of someone else. Within a few weeks of attempting to possess the methylamphetamine, the applicant was involved in trafficking a commercial quantity of that same drug. The appellant’s involvement extended beyond collecting the package from the storage unit. The applicant knew in advance what the contents of the packages were and was involved ‘from the earliest or from the beginning’
84Schanker was 32 years old at the time of sentence. Married. Met his wife in a refugee camp from Sierra Leone. His early life in Sierra Leone marked by experiences of extreme violence and trauma due to civil war. Lived without proper food and shelter and received no schooling.
85While the Court of Appeal characterised applicant’s background as ‘sad, indeed shocking’, it considered there are limits to its ameliorating influence and noted there was no evidentiary nexus between the deprivation and the offending. He completed studies in Australia. Undertook work as a truck driver, factory worker and cleaner. Substantial mental health issues – diagnosed with major depressive disorder and PTSD; R v Verdins [2007] VSCA 102,limb 5 applied. ‘Not insignificant’ criminal history – fraud and dishonesty offences –included terms of imprisonment.
86I have considered all the cases that have been referred to in determining a sentence in this matter.
87I also considered the non-parole period. The non-parole period is the period before which, you are permitted to serve the balance of a sentence in the community. The non-parole period is fixed having regard to all sentencing considerations and in this case, considerations of general deterrence and denunciation, while also encouraging your rehabilitation.
88Could you please stand. Having considered all the submissions made on your behalf, you are sentenced as follows:
89On the charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, you are sentenced to fifteen and a half years' imprisonment.
90I order that you serve a minimum of 10 years before being eligible for parole, I declare that you have served a total of 1308 days presentence detention, excluding this day and I order that it be deducted administratively. I must explain the sentence to you. Having considered all the submissions made on your behalf and by the prosecutor and a number of comparable cases and the seriousness of the offending and noting that the maximum penalty is life imprisonment, I have determined to sentence you to fifteen and a half years imprisonment. I am determined that after you have served 10 years imprisonment, you should be eligible for parole. That is, if the parole authorities agree, you may serve the balance of the sentence in the community.
91I have also declared that you have served a total of 1308 days in pre-sentence detention excluding today and order that it be deducted administratively.
92Right, I want to thank counsel for their assistance in the trial and the plea and adjourn the court sine die.
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