Director of Public Prosecutions (Cth) v Udemba
[2023] VCC 1675
•13 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-22-00202
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| COLLINS UDEMBA |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 15 May 2023 and 27 June 2023 | |
DATE OF SENTENCE: | 13 September 2023 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions (Cth) v Udemba | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1675 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – one charge of attempting to possess a marketable quantity of unlawfully imported border-controlled drug (heroin) – one charge of possessing a marketable quantity of a border-controlled drug reasonably suspected of having been unlawfully imported (heroin) – pleas of guilty
Legislation Cited: Criminal Code (Cth) 11.1(1), 307.6(1) and 307.9; Crimes Act 1914, s16A(1) and (2)
Cases Cited:Worboyes v R [2021] VSCA 169; Phillips v R (2012) 37 VR 594; R v Biba [2021] VSC 327; Loftus v R [2019] VSCA 24; Guden v R (2010) 28 VR 288; Tones v R [2017] VSCA 118; R v Nikodjevic [2004] VSCA 222; R v Merrett, Piggott and Ferrari (2000) 14 VR 392; R v Miceli [1998] 4 VR 588; R v Idilo (unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Tadgell and Ormiston AJJ, 21 April 1998); Bugmy v R (2013) 249 CLR 571; Director of Public Prosecutions (DPP) V Herrmann [2021] VSCA 160; R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106; Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673; DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546; R v Verdins; R v Buckley; R v Vo (2016) VR 296
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr M. Stanton | Director of Public Prosecutions (Cth) |
| For the Accused | Mr S. Ranjit | Starnet Legal |
HIS HONOUR:
1On 15 May 2023, this Court was informed that you had been arraigned on 27 July 2022 and had pleaded guilty to the following offences:
Charge 1: That you at Melbourne between 15 March 2021 and 26 March 2021 attempted to possess a substance, the substance having been unlawfully imported, the substance being a border-controlled drug, namely heroin, and the quantity to possess being a marketable quantity.
Attempting to possess a marketable quantity of an unlawfully imported border‑controlled drug is contrary to s11.1(1) and 307.6(1) of the Criminal Code (Cth) and carries a maximum penalty of 25 years’ imprisonment or 5,000 penalty units or both. Section 11.1(1) provides that although Charge 1 involves an attempt, the same maximum penalty applies under the Code.
Charge 2: That you at Cairnlea in Victoria on 27 April 2021, possessed a substance, the substance being reasonably suspected of having been unlawfully imported, the substance being a border-controlled drug, namely heroin, and the quantity possessed being a marketable quantity.
Possessing a marketable quantity of a border-controlled drug reasonably suspected of having been unlawfully imported is contrary to s307.9(1) of the Criminal Code (Cth) and carries a maximum penalty of 25 years’ imprisonment or 5,000 penalty units or both.
2When this matter was first listed before this court on 15 May 2023, counsel for the prosecution submitted that a psychological report from Mr Edwin Kleynhans, dated 10 May 2023, relied on by those acting for you did not comply with the relevant Practice Note issued by this Court on 19 July 2017. In particular, it was submitted that the psychologist had not complied with paragraph 6 of the Practice Note, which requires certain particulars relating to details of his expertise to be supplied in the report.
3It was agreed between the parties that the report of the psychologist would have to be amended to comply with at least the Practice Note. However, to make the most of the time, it was agreed between the parties that the matter would proceed on that day, with counsel for the prosecution reading a Statement of Agreed Facts to the Court.
Agreed Statement of Facts
4In this respect, I refer to the document headed 'Agreed Statement of Facts' (Exhibit 1) and I set out the important matters relevant to your offending :
· In March 2021, Victoria Police commenced an investigation into the attempted possession of a marketable quantity of a border-controlled drug, heroin. The investigation focused on you and Danielle Bell ('Bell') attempting to possess a consignment bearing Master Airway Bill 5067554656 (the consignment') imported from Thailand to DHL Port Melbourne situated at Tullamarine.
· At the time of the offending, you were 36 years old, had a mobile phone service numbered 0432 680 087 registered to you at your address at Cairnlea Drive, Cairnlea. At that time, you were also known as Mr 'Bishop'. Your co-accused, Bell, was 46 years old at the time of the offending, had a number of mobile phone services registered to her name, including 0406 669 819. You and Bell were known to each other, with you known to her as 'Bishop'.
· On 14 March 2021, DHL Transport at Tullamarine, received the consignment destined for a residential address in Footscray, Victoria. The goods were described as 'baby cloths, hot water bottle'. The details of the consigner were as follows:
§Namthip Sang-Udom, 168/809 Nirandon Condotel 4, Chanarkatutit, Donmaung, Thailand.
· The consignee details were as follows:
§Andrew Agha, Newell Street, Footscray, Melbourne, 3011, Australia – phone number +61 406 352 883.
· On 15 March 2021, DHL attempted delivery of the consignment to 28 Newell Street, Footscray. On arrival at that address, the DHL driver observed an African male waiting outside the premises, which was vacant and listed for rent. The driver requested identification from the male, who was unable to provide any and as a result, the consignment was referred to Melbourne Gateway Facility for further analysis due to suspicious circumstances of the delivery location.
· On 16 March 2021, Australian Border Force ('ABF') officers examined and x‑rayed the consignment which identified the consignment to consist of clothing, two large flasks and two small flasks. Such flasks were removed from the consignment and x-rayed individually, with detection swabs taken from one of the large flasks, which returned a presumptive alarm to heroin. Samples were drawn and placed in testing kits, which gave rise to the presumption of heroin.
· Victoria Police enquiries revealed that the original phone number supplied on the consignment was to Mrs Hong Xu ('Xu') of 59 Bristol Road, Hurstville, New South Wales. Xu was not recorded on the Victoria Police database and investigations alleged that the phone service was taken out in fictitious details to avoid law-enforcement detection. The prosecution does not allege that you were involved in the registration of this phone.
· Several calls were made from two different mobile services to the DHL call centre located in Brisbane in relation to the consignment:
15 March 2021
· On 15 March 2021, mobile service number 0469 310 891, registered to Thach Chi ('Chi') of Ashley Street, Braybrook, was used to call DHL at 1.52 pm, enquiring about the consignment. The caller was a male with an accent, who identified himself as 'Andrew Agha', as I have already said, but was in fact you.
· The caller provided an alternative mobile number to the operator of 0406 352 883, being the number supplied on the consignment.
· On 3 August at 3.08 pm, the same number, 0469 310 891, was again used to call DHL enquiring about the consignment. The caller was a male with an accent, who identified himself as 'Andrew Agha', but was in fact you.
· Subsequent enquiries revealed that Chi was not recorded on the Victorian Police Law Enforcement database and it is alleged that the phone service was taken out with fictitious details to avoid law enforcement detection. The prosecution does not allege that you were involved in the registration of this phone.
16 March 2021
· On 16 March 2021, mobile phone number 0484 586 118, registered to Grace A Bussey ('Bussey') of Cornhill Street, St Albans, was used to call DHL enquiring about the consignment at 2.54pm.
· The caller was a male with an accent, who identified himself as 'Andrew Agha' to the operator, but was in fact you.
· Subsequent enquiries revealed that Bussey is not recorded on the Victoria Police database and did not give permission for anybody else to use her phone number. A number of documents belonging to Bussey were subsequently seized from Bell’s address. Bell made admissions to adopting the identity of Bussey and it is alleged that she provided the phone service to you, but it is not alleged that you were involved in registering the service.
· At approximately 4.45 pm, Bell attended DHL Port Melbourne facility, attempting to possess the consignment and was advised by DHL staff that the consignment was not ready for collection as it had been returned to the sorting facility.
· GPRS data on service 0432 638 087 (registered to you), identified signals around Normanby Road, Port Melbourne between 4.48 pm and 4.57 pm. It is alleged that you were present with Bell at DHL Port Melbourne.
· At approximately 5.53 pm, CCRs for service 0484 586 118 ('Bussey'), records contact with DHL express and that at the time of the call, the phone service signalled in the vicinity of Airport South:
ꟷ between 5.4 2pm and 5.58 pm, GPRS data on service 0432 638 087 (your service) signals in the vicinity of Tullamarine;
ꟷ between 6.23 pm and 6.45 pm, call charge and GPRS records on service 0432 638 087 (your service) signals in the vicinity of Bell’s residential address; and
ꟷ it is alleged that Bell and you were together during this period.
17 March 2021
· At 5.50 am on 17 March 2021, mobile service 0484 586 118 (Bussey) was again used to call DHL enquiring about the consignment. The caller was a male with an accent, who identified himself as 'Andrew Agha', but was in fact you.
· The caller provided the operator with a consignment number and stated:
'I went to Port Melbourne yesterday to pick it up, they told me Tullamarine, so I then went to Tullamarine to pick it up. They’d closed, so rang up to have it delivered.'
· At approximately 8.50 am, GPRS data on service 0432 638 087 (your service) registered signals in the vicinity of Bell’s address in Sunshine North. CCRs on service 0406 669 819, registered to Bell, signals in the vicinity of DHL Melbourne Airport at approximately 9.14 am.
· At approximately 9.17 am, CCTV footage of Victorian registered vehicle ANY 660, registered to you was captured outside the facility. At approximately 9.10 am, Bell was captured on CCTV attending the DHL Melbourne Airport facility attempting to possess the consignment. It is alleged that you drove Bell to DHL Melbourne Airport in this registered vehicle.
· At approximately 10.53 am, mobile service 0484 586 118 (Bussey) contacted DHL enquiring about the consignment while signalling in the Footscray area.
· The female caller (Bell), contacted DHL and identified herself as Danielle, stating, 'ringing up for my husband', 'Andrew Agha', 'Andrew’s wife, I’m Danielle'. The female caller (Bell) stated:
'Andrew requested the consignment be moved for self-collection at Port Melbourne. We went there and it had been moved to Tullamarine, so we missed that one.'
· Between 10.11 am and 10.47 am, GPRS data on service 0432 638 087 (you) registered signals in the Footscray area. It is alleged that you were together with Bell when this call was made.
· At approximately 4.46 pm, Bell attended DHL Port Melbourne facility attempting to possess the consignment. She produced a fictitious/fraudulent Victorian driver’s licence in the name of 'Danielle Carolyn Agha (D.Agha)', born 28 May 1951, with licence number 037707549. This was photocopied by a DHL employee and Bell was advised the package was not present at this facility and had been returned to the depot for redelivery.
· At approximately 5.12 pm, you attended DHL Melbourne Airport attempting to possess the consignment. You did not provide any identification and was advised that you were unable to collect the consignment.
· CCRs and GPRS records on service 0432 638 087 (you) signals in the vicinity of Melrose Drive, Tullamarine Airport between 5.05 pm and 5.20 pm. At approximately 5.1 6pm, Call Charge Records on service 0484 586 118 (Bussey) signals in the vicinity of Airport South at approximately 5.16 pm. It is alleged that you were in possession of both handsets.
· It is alleged that Bell and you were together during this period.
18 March 2021
· On 18 March 2021 at 6.11 am, the mobile Telstra mobile service 0484 561 118 (Bussey) was used to call DHL enquiring about the consignment. The male caller with an accent who identified himself as 'Andrew' (that was in fact you) contacted DHL and provided details about the consignment. The call was forwarded onto another employee of DHL.
· The DHL call taker confirmed consignee 'Andrew' was on the line, with you confirming your name was 'Andrew' and further stated, 'my brother went there to pick it up but the driver asked him for ID', 'my women [sic] went to DHL to pick it up they say it in Tullamarine, she went to Tullamarine', 'I called the other time'.
· The call taker asked if this was the original address on the airway bill, to which you incorrectly responded 'it's 18 Newell Street, Footscray'. You confirmed your mobile number as 'this one I’m calling on 0484586118' (Bussey), before requesting a redirection address of 18 Grantham Parade, 3021, St Albans.
19 March 2021
· On 19 March 2021 at 5.53 am, mobile service 0484 586 118 (Bussey) was again used to call DHL enquiring about the consignment. The male caller identified himself as 'Andrew', but was in fact you. DHL confirmed that the caller had previously requested a change of address.
26 March 2021
· On 26 March 2021 at 2.27 pm, mobile service 0484 568 118 (Bussey) was used to call DHL enquiring about the consignment. The caller was a male with an accent, who identified himself as 'Andrew Agha', but was in fact you. The call taker had trouble understanding you and a female with an Australian accent (Bell) took over the call and spoke with the call taker. The call taker confirmed the redirection address for the consignment to be 18 Grantham Parade, St Albans, and the call taker confirmed the number on file to be 0484 586 118 (Bussey) and advised that the consignment was chosen for inspection by customs.
Your arrest and execution of search warrants
5On 27 April 2021 at approximately 9.30 pm, Victoria Police executed search warrants at your home address – Cairnlea Drive – and various vehicles.
6You were arrested as you arrived home from South Australia in vehicle 10A 20C, for attempting to possess a marketable quantity (339.8 grams) of a border‑controlled drug, namely heroin, contained within the consignment – (Charge 1).
Charge 2
7A search was conducted of you, your premises at Cairnlea Drive, Cairnlea and the vehicle registered 10A 20C and in particular:
(a) four flasks were seized from your vehicle, with the flasks later deconstructed with a total of 325.3 grams of heroin;
(b) the heroin contained within the flasks are reasonably suspected of being unlawfully imported, as all four flasks contained heroin, and the concealment method was an exact replica to that of flasks located within the consignment;
(c) the flasks were contained in a package addressed to 'Godswill Leon' and you were also in possession of a fraudulent licence in the name of 'Godswill Leon', born 7 January 1976 of 14 Georgina Avenue, St Leonards, with your photograph attached.
8Police also attended outside Vincent Avenue in St Albans and conducted a search of vehicle ANY 660 registered to you. Police seized from the vehicle documentation in your name and a Bob Marley beanie worn on 17 March 2021 at DHL Melbourne Airport.
Your police interview
9You were interviewed by police on 27 April 2021 and in relation to the circumstances of Charge 1:
· you confirmed that your telephone number is 0432 638 087 (Question ('Q') 38-40) and that you lived at Cairnlea Drive, Cairnlea (Q 66-68).
· You informed the police that you thought the consignment contained mobile phones and added that you were to be given a number for collecting it from DHL at Tullamarine on behalf of the same friend who asked you to pick up the package in Adelaide. You stated that you did not know what else was contained in the consignment (Q 270-293 and 314).
· When informed that the consignment contained heroin, you stated that this is not what your friend had told you it contained – you were told it contained mobile phones (Q 372-382).
· You denied attending the address of the consignee (28 Newell Street, Footscray) on the day that it was attempted to be delivered on 15 March 2021) (Q 324-349, 362-371). However, you did admit calling DHL on this day on the mobile service 0469 310 891, but did not know the registered owner, Mr Tuch Chia (Q 383-396).
· You stated that you did not know the woman who attended DHL to collect the consignment and did not know or recognise Bell when shown photographs of her. However, you admitted making calls to DHL and to changing the address for delivery (Q 397-451).
· You admitted that you went to DHL to collect the consignment but denied using a fake ID in the name of Andrew Agha (Q 349-361).
· When shown photographs of the flasks contained within the consignment, you stated that you had never seen them before (Q 452-456).
· In answer to the allegation, you asserted that the heroin was not yours and that you were to receive $1,000 from your friend in Africa for collecting the consignment (Q 538-551).
Charge 2
· You stated that you travelled to South Australia for the day to deliver furniture and pick up a package, however did not elaborate further or provide investigators with the address attended (Q 90-121).
· While in Adelaide, you picked up a package addressed to Leonard Godswill on behalf of a friend in Africa, Obeggo. You picked it up from 'the postman' and was told that it contained clothes and a water bottle, and that someone would collect it from you. You were to be paid $1,000 for this service (Q 122-186).
· The four flasks on the floor of your car were contained in the package you picked up in Adelaide. You removed the box and left it in Adelaide (Q 222-231).
· You did not know the person to whom the package was addressed, Godswill Leon. You had the fake ID of Godswill Leon made with his photograph 'by an Aussie guy' being provided with a name of the addressee (Q 232-269).
Bell search warrant and address
· On 27 April 2021 at approximately 10.22 pm, investigators executed a warrant for Bell at her home address, Bluebell Court, Sunshine North and a vehicle registered YGD 166.
· Bell was arrested for attempting to possess a marketable quantity of a border-controlled drug (heroin) contained within the consignment. She was conveyed to Sunshine Police Station for interview and later charged with other offences.
Forensic Analysis
10Subsequent police forensic analysis of the heroin revealed the following:
(a) in relation to Charge 1, 339 grams: the two components (170.9 grams at 61 to 83 per cent purity and 168.9 grams at 60 to 82 per cent purity) resulting in a quantity of pure heroin of between 205 and 280 grams;
(b) in relation to Charge 2, 325 grams: the contents of the four flasks had the following purity levels:
(i)50.6 grams (76 per cent);
(ii)95.5 grams (78 per cent);
(iii)90.5 grams (74 per cent); and
(iv)88.7 grams (78 per cent).
Accordingly, the resultant quantity of pure heroin in relation to Charge 2 was 249 grams.
Other matters
11You have no prior convictions for any type of offending.
12After your arrest, on 27 April 2021 you were remanded in custody and I am informed that up to this sentence, not counting this day, you had been on remand for a period of 869 days’ pre-sentence detention, excluding the date of sentence.
13Counsel for the prosecution prepared a chronology:
Date Event 15/3/21 -7/4/21 Offending period 27/4/21 Charges issued 14/2/22 Committal Hearing (Informant only). Both Accused committed for trial 15/3/22 Initial Directions Hearing 12/5/22 Further Directions Hearing 30/5/22 Further Directions Hearing (matter resolved) 20/6/22 Further Directions Hearing – booked in for arraignment on 27 July 2022 and plea hearing on 30 January 2023 27/7/22 Arraignment – pleas of guilty 30/1/23 Plea hearing and I note that this was adjourned to 15 May 2023, the first day of the plea hearing in this court
Your background and circumstances
14Your counsel tendered the following material:
(a) outline of Defence Submissions for Plea, dated 14 May 2023 (Exhibit A);
(b) the psychological report from Mr Kleynhans, dated 10 June 2023 (Exhibit B). Such report was the second report from Mr Kleynhans – this report complying largely with the Practice Note;
(c) a reference from Mr Femi Akinola, undated (Exhibit D). In that document, Mr Akinola describes how you are from the Igbo tribe in Nigeria and that he was from a different tribe – the Yoruba tribe in Nigeria. He has known you for about six years in Australia after meeting at a community event and describes you as a kind-minded person, being one of the philanthropists in the Nigerian community.
He also notes that you are married with three children and are the 'breadwinner' of the family. He states that you have been a law-abiding citizen prior to the current charges and the current charges do not change his view of you. In particular, he notes you regret your offending and have promised to change;
(d) a reference from Mr Emmanuel Ozougoo (also part of Exhibit D), who describes that he is a senior citizen of Australia and an Elder of the Igbo Association of Victoria. He describes how he has known you for nine years and that you have three biological children and a stepdaughter, with your wife being unemployed.
He describes your offending to be 'out of [your] character' and that ever since he has known you, you have always avoided trouble and tried as much as possible to respect the law.
He also describes he has noticed that you have been 'traumatised' since you were charged with the current offence as you miss your family. In particular, he notes that your wife was pregnant when you were incarcerated and now has a baby which you have not even cuddled since birth.
He also noted that you were previously employed and owned your own clothing shop in Footscray and that at some point were also working in a pick‑and‑pack warehouse in Epping, and also some courier jobs. He notes that your family has been dependent on social security benefits since you were incarcerated.
In particular, he asserts that you have been 'so remorseful since the commission of the offence and has promised never to get involved in any crime in the future'.
15Partly based on some of the documents tendered on your behalf and partly based on various submissions made to me by your counsel, I note the following:
· You are presently thirty-seven years old, having been born in Nigeria in November 1985. Your father, who died in 2017, had more than one wife, which gave rise to you having 22 siblings – 10 brothers and 12 sisters, some of whom were stepsiblings. Your mother died in 2018, when you were in Australia.
· You were educated to Grade 6 in Nigeria but under pressure from your father you were forced to leave school at that young age to get on-the-job training in mechanical work to help support all the people in your extended family. You commenced working in a local mechanic shop in Nigeria and worked as a mechanic for the duration of your time in Nigeria. During this time, your family was under constant financial strain and pressure.
· During this time, you had basic clothing and the money you earnt was always given to your father to assist the family. Food was shared amongst the entire family and you would go without food so the rest of your siblings could eat.
· You informed your counsel that although your childhood was difficult, you were not subjected to violence, although you did regularly witness violent incidents involving murders and males carrying weapons and inflicting violence on each other.
· In 2013, you came to Australia on a tourist visa, having fled Nigeria because males in their 20s were forced to work for government political parties and any refusal resulted in violent punishments. On coming to Australia, you did not know anyone when you arrived and initially stayed in a motel and then moved to an Asylum Seekers’ refugee home in St Albans, and while residing there met your future wife and commenced a de facto relationship. Your de facto wife is an Australian citizen, but originally from Togo in West Africa.
· You have been living with your wife since 2013 and have fathered three children with your wife. A fourth child, the eldest of the children, is a child from your wife’s previous relationship.
· Since coming to Australia, you have worked as a forklift driver in a factory, a courier driver for eight months and also ran your own clothing shop in the Footscray market prior to your arrest. However, you had to ultimately liquidate this business and were left with significant financial debts.
· When your mother died in 2018, you informed the psychologist that you were feeling depressed and looking for a sense of purpose and was suffering from aggravated grief because of your strong attachment to your mother. At that time you became involved with a 'negative peer group', which introduced you to narcotics and in particular you commenced to use methylamphetamine.
The evidence of the psychologist, Mr Edwin Kleynhans
16Mr Kleynhans, on instructions from your solicitors, interviewed you on 8 May 2023 at the Marngoneet Correction Centre over a period of one and a half hours. On the basis of such interview, he prepared a report dated 10 June 2023, that being the second report with the amendments to comply with the relevant Practice Note.
17After obtaining histories in relation to your family, education, employment (both here and in Nigeria), performing various psychological testing and making a mental status examination, Mr Kleynhans made the following diagnoses:
'Depression
54[You suffer] from episodes of depressed mood, which occurred over a long period of time since [your] teenage years. In fact, since then [you have] been struggling with personality adjustment problems for some time, which I believe, became problematic when [you] left school in Grade 6 as [your] father forced [you] to leave school at an early age.
This caused substance abuse as [you were] looking for a sense of purpose and wanted to stop being flat and depressed and needed a stimulant such as Ice.
55[He is] diagnosing [you] with ‘Persistent Depressive Disorder (Dysthymia) with Anxious Distress’ as per DSM-V. The rationale for this is based on the following:
•Poor appetite which is linked to [your] depressed mood that [you have] been suffering from for a long time;
• Chronic insomnia;
• Low energy;
• Low self-esteem;
• Poor concentration;
• Feelings of hopelessness: [you] felt hopeless when things were not working out for [you] and would blame circumstances for that in that [you] left school at a young age and had to compete with a large group of siblings.
Drug Abuse
56[You] told me that [you] used Ice, which made [you feel] functional with the passing of [your] mother in 2018 as [you] wanted to come out of [your] depressed mood. Hence, [you] mixed with a negative peer group that introduced [you] to Ice, which also gave [you] a sense of purpose as [you] wanted to keep on working and support [your] family whilst [you] used Ice.
57[He is] of the opinion that [your] way of dealing with the stressors in life, [you were] self-medicating to cope with critical stress, depressed mood, and an unstable mindset. [You] stated that the Ice [you] used was a way of escaping [your] dysfunctional world.
58Given [your] drug habit of using Ice until [your] arrest, [he] decided to diagnose [you] with ‘Substance Abuse (Ice as the main drug of abuse) Disorder’ as per DSM-V. The rationale for these diagnoses includes the following:
• Regular use of the substance;
• Substance abuse has an adverse effect on social relationships;• Substance use has a marked adverse effect on cognitive functions;
• Substance abuse/narcotics brought [you] in contact with The Law;
• Substance use has an adverse effect academically.
59 In terms of differential diagnosis, I also considered Generalised Anxiety Disorder and Personality Disorder because of [your] problems with generalised anxiety and personality adjustment. However, [you do] not meet the diagnostic criteria for these disorders within the Diagnostic Journal of DSM-V. However, [you need] to consult a Psychologist who could assist [you] with substance abuse, depressed mood and personality adjustment challenges.”
18Furthermore, under the heading 'Summary of Conclusions' the psychologist state:
'Predisposition Factors
60[He is] of the opinion that [you are] vulnerable to stress, which had its genesis during [your] formative years and which [he links] to [your] dysfunctional attachment.
Precipitating factors
61[He is] of the opinion that [your] dysfunctional personality development (based on [your] dysfunctional family and attachment), [your] cultural background and [your] substance abuse, created the context in which [you] developed personality adjustment and mental health problems, especially how it relates to the development of a Substance Abuse Disorder. [He is] of the opinion that [you] used substances to deal with the aforementioned mental health problems, especially with the sad passing of [your] mother as [you] wanted to deal with [your] low mood and needed a stimulant like Ice.
62[He gleaned] the aforementioned information about dysfunctional attachment from [his] training as a Developmental Psychologist and professional development seminar [he] attended on "Attachment" in Melbourne in 2015.
63Specifically, [you] became dependent of Ice because of the combination of the following precipitating factors:
• No role modelling in terms of how one deals with requests from friends to engage in an illegal activity of being a drug user;
• Having no sense of self and belonging, which prompted [your] association with negative peers that gave [you] purpose as they provided [you] with an answer to [your] low mood (grieving over [your] mother's passing), that is to use a stimulant known as Ice.
• Having educational adjustment problems and the fact that [your] father forced [you] to leave school at Grade 6;
• Joining a peer group that engaged in maladjusted behaviours (for example, substance abuse) after the sad passing of [your] mother with whom [you] had a strong attachment; [you] told [him] that [you] could not refuse their requests as [you] belonged to the said group and did not want to lose [your] sense of purpose and accepted the peer group’s affiliation and Its goals in life (e.g., to use drugs to deal with mental health problems);
• [You] started using substances to deal with the critical stress and depressed mood symptoms since the passing of [your] mother in 2018.
64.Another precipitating factor for [your] current mental health problems is related to [your] arrest for being in possession of heroin in sealed parcels. In fact, [you were] under the impression that the two parcels [you] had to deliver for [your] friend in Nigeria contained mobile telephones.
65 In summary, I am of the opinion that internal factors (maladjusted self-esteem issues, as well as addictive behaviour and lack of control factors) in combination with external environmental factors (such as a negative peer group/ no male role modelling in relation to resolving interpersonal demands: [your] father was not available to [you]) as well as chronic stress hormones provided the context in which [you] started to abuse Ice. That is, I understand that [you have] had history of personality adjustment problems because of [your] dysfunctional family background and that treatment (drug and psychological therapy) will make a difference in reducing risk factors. I base the aforementioned on my experience having worked with drug users over the years.
Perpetuating factors
66. Perpetuating factors for [your] stress and ongoing offending during a certain period are based on [your] problems with [your] cultural background in growing up in a large family where [you] had around 22 siblings and [your] father struggling to support his large family. In fact, [you were] forced to leave school at Grade 6 by [your] father to prepare [your]self for the labour market and earning [your] own income.
67. The final perpetuating factor is that [you feel] extremely guilty as [you feel] that [you] have harmed [your] family by [your] actions as [you have] been arrested and placed on remand.'
(My emphasis)
19I also refer to that part of the report from the psychologist, where he queries you in relation to the two subject charges and, in his report, the psychologist states:
'10When asked, [you] told [him] that [you] collected the consignments for a male friend in Nigeria known as Obeggo and was paid $ 1,000 for collecting these consignments (one at Melbourne Airport and the other one after [you] did a furniture delivery in Adelaide, SA). As stated earlier on, [your] friend In Nigeria told [you] that the parcels contained mobile phones. [You] told [him] that [you] needed to earn extra money so [you] could support [your] immediate family (wife and 4 children) in Melbourne when Obeggo ([your] friend) paid [you] for the deliveries. I understand that Obeggo told [you] that [you] needed a fake ID so [you] could collect from Ms. Danielle Bell who produced the fake ID for [you] and which [you] had to use when [you] collected the said consignments. [You] told [him] that [you were] not paying attention to the job at hand offered to [you] by [your] friend in Nigeria.
11 [You] also told [him] that [you were] not dealing drugs during the period referred under paragraph 8 but was only collecting and delivering the said consignments for the said friend.'
(My emphasis)
20I also refer to that part of the report where the psychologist records what you told him in relation to any remorse:
'45 Remorse: [you are] remorseful about [your] inappropriate responsibility when [you were] abusing Ice as [you] became addicted to this as it would have an adverse effect on [your] immediate family.'
(My emphasis)
Matters in Mitigation of your sentence
21Although your counsel 'acknowledged' that you are facing a term of imprisonment of a duration that will necessarily involve the setting of a non-parole period, it was submitted by him that the following factors were relevant to the 'length and structure of that sentence'.
(a) Your plea of guilty:
That you indicated your intention to plead guilty to the offences at the earliest reasonable opportunity. I was informed that, although a committal hearing was undertaken on 14 February 2022, you were committed on charges involving trafficking, but following discussions after the committal hearing, and further negotiations, the trafficking charge was withdrawn, leading to the pleas of guilty to the subject charges. In particular, it was submitted:
(i)such a plea of guilty had significant utilitarian value as it has saved the Court, Victorian Police and the prosecution a significant amount of time and resources. It was further submitted that, upon the authority of Phillips v R [2012] VSCA 140 at paragraph [36(2)], the strength of the Crown case is irrelevant to the discount to be allowed for the utilitarian benefit of the plea, as it does not bear upon the objective benefits of the plea;
(ii)such a plea was entered into when the ordinary operation of the Court had been affected by the COVID-19 pandemic, and such a plea should attract 'an actual and palpable amelioration of sentence' (reference was made to Worboyes v R [2021] VSCA 169 at paragraph [35]). In particular, reference was made to paragraph 39 of Worboyes (op cit), where it was stated, in part:
'For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic’s effects. A plea of guilty during the pandemic ordinarily would attract a more pronounced amelioration of sentence than at another time. Although a sentencing judge need not quantify the extent of any "discount", he or she must ensure that the plea of guilty results in a perceptible amelioration of sentence.';
(iii)it was also submitted that such a plea demonstrates a willingness to accept full responsibility for your offending and to facilitate the course of justice;
(b) Your remorse:
It was also submitted that you have expressed remorse for the offending to the psychologist, Mr Kleynhans. Reference is made to that report, wherein it is asserted that you described your 'regret' for the offending and indicated you were 'irresponsible'. Further, it is submitted that you were aware that your offending would impact on your family to remain in Australia and the impact this will have on your family.
I have already referred to what has been recorded by the psychologist in relation to your 'remorse', which is seemingly more directed at your drugtaking rather than any remorse as to what the effects of any use of the heroin drug are in the community. However, I do note that, in both the references relied on by you (Exhibit D) it is asserted that you regret your offending and have promised never to get involved in any crime in the future;
(c) Your cooperation with authorities:
(i)It was submitted that you were 'compliant' when police arrived at your residence and you were cooperative with police during the record of interview and made admissions to your offending;
(ii)It was further submitted that such admissions and cooperation carry further utilitarian benefits, as it narrowed the police investigation and ultimately saved the police significant time and resources.
Although I accept you made some partial admissions in relation to you being involved in the picking up of the consignment, I am not satisfied that such admissions were fulsome. In particular, I refer to your denial of having no contact with Bell or indeed knowing her at all, and your assertions that you were told and believed that the consignment only contained mobile phones (Charge 1) and your assertion that you knew nothing about the package addressed to Leon Godswill and were told that it only contained 'clothes and water bottles'. I consider such assertions implausible, bearing in mind the subterfuge in attempting to recover the consignment and the use of the false name 'Leon Godswill'.
I find beyond reasonable doubt that you had knowledge that drugs were being unlawfully imported into Australia by way of the consignment, albeit not necessarily heroin. Furthermore, I find beyond reasonable doubt that you had knowledge that it was unlawfully imported drugs, again albeit not necessarily heroin, that you were transporting from Adelaide to Melbourne.
(d) No prior criminal history and first time in custody:
There is no issue that you have no prior convictions in Australia and on the submission of your counsel, you have no prior convictions when living in Nigeria. It was submitted in such circumstances that, save for the subject offending, you have otherwise been a person of good character and a 'positive member' of our society.
It was also submitted that, being in adult custody for any significant period of time, will ultimately have a deleterious effect on you and diminish your prospects of rehabilitation;
(e) Custody conditions:
It was submitted that, on the authority of R v Biba [2021] VSC 327 at paragraph [38], the Court considered the burden of prison you faced, being incarcerated during the pandemic, the Court should moderate the sentence to be imposed, recognising such hardship. In general terms, it has been generally accepted that during the peak of the pandemic prisoners experienced greater hardship, given there were frequent lockdowns, limited access to visitors and many of the programs which would normally run in prison were either suspended or cancelled.
In this respect, it was noted that, during your period of remand, you were subject to fourteen days' isolation because of the pandemic.
As I understood such submission, the emphasis has been on your past time in remand and understandably so, given that the conditions which prisoners were experiencing at the height of the pandemic have been much ameliorated in more recent times.
(f) Being a non-Australian citizen:
It was submitted that, bearing in mind that you are not an Australian citizen, but holding a permanent visa, you will be subject to the Migration Act 1958 and if you are imprisoned for any period greater than twelve months, it will result in automatic cancellation of your visa, followed by detention in a facility, during any period of parole with the prospect of being deported, unless there is an executive decision to avoid such situation;
Reference was made to Loftus v R [2019] VSCA 24 at paragraphs [69]-[83] in support of the following propositions:
ꟷ the prospect of being deported renders imprisonment more onerous for you, because you will face the prospect of being deported. This, in turn, may render incarceration more difficult;
ꟷ secondly, deportation, should it occur, would constitute an additional punishment because it destroys the opportunity for you to settle permanently in Australia and potentially causing you to be separated from your family in Australia.
In particular, it was submitted that such a situation weighs heavily on you, as you migrated to Australia for a better future and managed to obtain employment and start a family. In this respect, if you were deported to Nigeria, it would have devastating impacts on your family in Australia and on you.
(g) Family and dependants:
It was submitted that your wife and children are Australian citizens and, in your absence, based on the material before the Court, your family has been living on social service benefits. Furthermore, according to one of your referees, your wife gave birth while you have been on remand. I accept that you would have concerns about your wife and young family coping in your absence.
Furthermore, I accept that in the circumstances of this matter, family hardship is to be a sentencing consideration. I note that it is now clear that the well‑known Victorian Court of Appeal decision of Markovic v The Queen (2010) 30 VR 589 which reaffirmed the common law position that, unless the circumstances are shown to be exceptional, family hardship is to be disregarded as a sentencing consideration. However, in Totaan v R [2022] NSWCCA 75 at paragraphs [77], [92]-[93] (per Bell CJ with whom Gleeson JA and Harrison, Addison and Dhanji JJA agreed) the New South Wales Court of Criminal Appeal held that, in the decision of Markovic, which limits the Court to impose a sentence for a Federal offence, may only have regard to family hardship where the examples of hardship satisfy the epitaph 'exceptional' – are 'plainly wrong' and should not be followed. This position has been adopted in Victoria in cases such as Rodgerson v R [2022] VSCA 82.
(h) The issue of delay:
It was submitted there has been delay in this matter proceeding to a plea. In this respect, the offending occurred in March 2021 and the plea hearing commenced on 15 May 2023. It was submitted that such delay cannot fully be attributable to you.
Significant delay between the time an offender is interviewed by police and the time of the plea can be a powerful mitigating factor (see Tones v R [2017] VSCA 118 at paragraph [36].
Although delay, in itself, creates no automatic right to a sentencing discount, it is clear enough, when the prosecution unduly delays bringing the matter to court, there is much more likely to be a discount (see R v Nikodjevic [2004] VSCA 222 at paragraph [22]). Generally delay is analysed as a mitigating factor by reference to two limbs – the first concerning 'unfairness to the offender', in that a charge (or its prospect) was 'hanging over' his or her head and caused him or her anxiety. The second limb concerns whether, during the course of the delay, the offender has made progress towards rehabilitation as prospects of rehabilitation are good 'rehabilitation' (see R v Merrett, Piggott and Ferrari (2000) 14 VR 392, 400-1 [36]-[39]).
Your counsel submitted that the first limb concerning unfairness is particularly relevant to your situation. However, I so note that when the unfairness limb is invoked, psychological injury sometimes gives support to the distress endured by the offender. However, there are also cases where, depending on the duration of the delay, its cause and other circumstances, it might be accepted that delay caused anxiety to the offender without need for supporting evidences (see Tones v R (op cit) at paragraph [38]).
Although delay does not have to be 'inordinate' for it to be considered in mitigation (see R v Miceli [1998] 4 VR 588 at 591), it such delay is 'unduly long', it may often be taken as a mitigating factor (See R v Idilo (unreported, Supreme Court of Victoria, Court of Appeal, Phillips CJ, Tadgell and Ormiston AJJ, 21 April 1998);
(i) Bugmy:
Your counsel submitted that the principles enunciated in the High Court decision of Bugmy v R (2013) 249 CLR 571 apply to your circumstances. In particular, I refer to paragraphs [40], [43]-[44] of Bugmy which state:
'[40]… The circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way.
...
[43]The Director’s submission should be accepted. The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It is a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
[44]Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.'
(My emphasis)
I also refer to the Victorian Court of Appeal decision of DPP v Herrmann [2021] VSCA 160. In that decision, the Court of Appeal (consisting of Maxwell P, Kaye, Nyall, T Forrest and Emerton JJA) explained that in Bugmy, the High Court expressed in two different ways the potential relevance of childhood deprivation to the assessment of moral culpability. The first – described as 'more general' – was expressed by those words underlined in paragraph 40 above, and the second – described as 'more specific' – was expressed by those words underlined in paragraph 44 above.
I also refer to the Victorian Court of Appeal decision of Marrah v The Queen [2014] VSCA 119 and, in particular, at paragraph 16 whereat the Court (consisting of Redlich and Tate JJA) stated:
'Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time, and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus.'
It was submitted that the 'more general' way was relevant to your sentence – that is, being surrounded by alcohol abuse and violence may mitigate your sentence because your moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. In particular, your counsel relied on the circumstances of your childhood background, as described by the psychologist, Mr Kleynhans.
(j) Application of Verdins principles:
When queried by the Court as to whether your counsel was relying on any of the principles set out in R v Verdins; R v Buckley; R v Vo (2016) VR 296, it was submitted that principles 5 and 6 of that case, and in particular principle 5, are relevant to the circumstances of this matter. I refer to Verdins wherein at paragraph [32], the Court of Appeal (consisting of Maxwell P, Buchanan and Vincent AJA) stated:
'[32]Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1.…
2.…
3.…
4.…
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.'
As recorded, the psychologist, Mr Kleynhans, diagnosed you to be suffering from 'persistent depressive disorder (dysthymia) with anxious distress' and 'substance abuse (ice as the main drug of use) disorder'. Mr Kleynhans considered the precipitating factors were your dysfunctional personality development based on your dysfunctional family, your cultural background and your substance abuse which created a context in which you developed personality adjustment and mental health problems.
Your counsel accepted that Mr Kleynhans does not express any opinion as to whether or not your impaired mental functioning 'may mean that a given sentence will weigh more heavily on you than it would on a person in normal health' or that you are at 'serious risk of imprisonment having a significant adverse effect' on your mental health. It was submitted that given that this is your first time in prison and given the undisputed psychological condition, it is a reasonable inference that you would find such sentence will weigh more heavily on you than it would on a person of normal health - that is principle 5.
The position of the prosecution
22Counsel for the prosecution tendered the following documents:
(a) document headed 'Prosecution revised plea submissions' dated 21 June 2023 (Exhibit 2); and
(b) a schedule of comparative cases with two tables (Exhibit 3).
23Initially, counsel for the prosecution noted that pursuant to Schedule 2 of the Criminal Code Regulations 2019 (Cth), a marketable quantity of heroin (that is, diacetylmorphine) is 2 grams, whereas a commercial quantity is 1.5 grams. In relation to Charge 1, the quantity of pure heroin was between 205‑280 grams, and in relation to Charge 2, 249 grams of pure heroin. Accordingly, for each charge, the quantity of heroin was over 100 times the marketable quantity and over one‑eighth of a commercial quantity.
24In such circumstances, it was ultimately submitted that:
(a) no sentence other than an immediate sentence of imprisonment on each charge was appropriate in all the circumstances;
(b) there should be some cumulation between the two offences to reflect the distinct offending; and
(c) the resulting sentence should be such that a non-parole period is required to be fixed. Reference was made to s19AB(1) of the Crimes Act 1914 which provides that where a sentence of imprisonment of more than three years is imposed, the Court must fix a single non-parole period unless the Court exercises the power under s19AB(4) to decline to fix a non-parole period. It was submitted, correctly in my view, that there was no reason to decline to fix a non-parole period in this matter. As noted in the High Court case of Hili v R (2010) 242 CLR 520 at [41], the necessary deterrent and punitive effects of sentence must be reflected in both the head sentence and also the non-parole period. Furthermore, the High Court endorsed the conclusion that no mechanistic approach to formulating a non-parole period was appropriate:
'Because the relevant factors and the relative differences in the weight to be afforded to each factor in the different aspects to the overall sentencing process may differ according to infinitely variable circumstances …' (Ibid) at [42]
25It was further submitted by counsel for the prosecution that when sentencing for Commonwealth offences, the Court must sentence in accordance with Part 1 of the Crimes Act 1914 with the overarching requirement that a Federal sentence must be of a severity appropriate to all the circumstances of the offence. (Reference was made to s16A(1) of the Crimes Act 1914.
26Furthermore, s16A(2) of the Crimes Act 1914 sets out a non-exhaustive list of factors which, so far as they are relevant and known, a Court must consider, when sentencing a Federal offender 'in addition to any other matters'. Before addressing those factors, counsel for the prosecution submitted that it was important to note that when sentencing for serious drug importation cases (and related possession offences) the principles as explained by the New South Wales Court of Criminal Appeal in R v Nguyen [2010] NSWCCA 238; (2010) 205 A Crim R 106 ('Nguyen') and adopted by the Victorian Court of Appeal in Nguyen v The Queen; Phommalysack v The Queen [2011] VSCA 32; (2011) 31 VR 673 (“Phommalysack”) apply. These principles are:
(a) 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;
(b) 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;
(c) 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 been only a middle level of responsibility;
(d) 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 involved;
(e) 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 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 the drug involved where otherwise the circumstances of the importation were the same or very similar;
(f) 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);
(g) 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 stern punishment will be warranted in almost every case;
(h) 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;
(i) involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise, the interests of general deterrence are not served;
(j) 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;
(k) where offenders are not young, the immaturity of youth cannot be claimed as a factor bearing upon their transgressions;
(l) 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 person intended to do with the drug, are relevant in determining the degree of moral culpability attached to the actual act of attempted possession itself. A sentencing judge should have regard to the offender's involvement in the overall transaction for the purposes of determining the offender's degree of involvement in a drug smuggling enterprise;
(m) offences of attempting to possess drugs are not, for that reason, in a less serious category than that of importing the drugs.
27It is also to be noted that in DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546, which concerned an attempt to possess a border-controlled drug offence, the Court of Appeal (Redlich, Santamaria and McLeish JJA) referred at [192] to the principles in Nguyen as being relevant.
28It was also submitted that in Phommalysack, Maxwell P also cited the following with approval:
'In De La Rosa (2010) 79 NSWLR 1 at [267], McClellan CJ at CL identified the following as key reference points for sentencing (and for comparing sentences) in cases such as these:
(a) quantity;
(b) role;
(c) reward;
(d) assistance to authorities;
(e) criminal history;
(f) prospects of rehabilitation.'
29Also reference was made to a more recent decision of R v Kassir [2020] NSWCCA 88, wherein Bathurst CJ, with whom Fullerton and Hulme JJ agreed, endorsed the above list from Nguyen and stated:
'I would only add what was said by Bell and Gagler JJ in R v Pham (2015) 256 CLR 550; [2015] HCA 39 (“Pham”) at [45] that "the quantity of the drug is not the controlling factor when it comes to the assessment of the seriousness", that would usually be relevant and in some cases the most significant consideration.'
30Counsel for the prosecution made various submissions in relation to the relevant s16A(2) factors.
Re 16A(2)(a) – the nature and circumstances of the offence
It was submitted in relation to Charge 1 that:
(a) your offending was serious, as made clear by the maximum penalty set out by Parliament;
(b) as already described, your offending involved a significant amount of heroin with the charge involving 100 times the marketable quantity;
(c) you made multiple attempts to inquire about and/or collect the delivery (the subject of Charge 1); calling DHL, on 15 March 2021, calling DHL twice and using the false name 'Andrew Agha'; on 16 March 2021, calling DHL and using the false name 'Andrew Agha'; on 17 March 2021, calling DHL and using the false name 'Andrew Agha'; on 17 March 2021, attending DHL at Melbourne Airport and attempting to collect the consignment, on 18 March 2021; calling DHL and using the false name 'Andrew'; on 19 March 2021, calling DHL and using the false name 'Andrew'; and on 26 March 2021, calling DHL and using the false name 'Andrew Agha'. It was submitted that this demonstrates significant efforts over a relatively extended period to take possession of the consignment;
(d) other than you, who was the intended consignee, and your co-accused, Bell, it was not known whether any other person was involved in the offending in Australia. The evidence, it was submitted, does not indicate that you organised the importation;
(e) while you did not give a full and frank record of interview, there is no evidence that supports, or contradicts, your assertion that you were to receive $1,000 for your role (reference was made to questions 170‑178 during the record of interview with the accompanying answers). It was submitted that it is clear that you were to make a profit; and
(f) it was submitted that Charge 2 was also a serious offence, with one involving the actual possession of a border-controlled drug which again involved a significant amount of heroin – over 100 times the marketable quantity. Such offence involved you using a false identity in the name of 'Godswill Leon'.
Re s16A(2)(f) – the degree to which you have shown contrition for the offence
31It was submitted that:
(a) in your record of interview undertaken on 27 April 2021, you gave an account denying knowledge of the border-controlled drugs in relation to both offences;
(b) the prosecution accepted that you have now pleaded guilty after a contested committal which does demonstrate a measure of contrition, although that must be seen in the context of a strong prosecution case; and
(c) the prosecution does accept that there is a utilitarian benefit from the plea of guilty, then the community has been saved the expense of a trial.
Re s16A(2)(j) – the deterrent effect that any sentence or order under consideration may have on you
32Specific deterrence, it was submitted is relevant in the intuitive synthesis, especially given there are two offences involving a border-controlled drug. In those circumstances, the offending cannot be regarded as a single aberration.
Re s16A(2)(ja) – the deterrent effect that any sentence or order under consideration may have on other persons
33As was recorded above, general deterrence is of critical importance in the intuitive synthesis, as is made clear by points 7‑9 of the principles set out in Nguyen.
Re s16A(2)(k) – the need to ensure that you are adequately punished for the offence
34It was submitted that adequate punishment is also a critical factor, as is reflected in points 7 and 9 of the principles set out in Nguyen.
Re s16A(2)(m) – character, antecedence, age, means and physical and mental condition
35It was submitted that your prior good character is a relevant matter in mitigation, with a caveat that the authorities (reference was made to point 10 in Nguyen) make it clear that an absence of prior convictions is not uncommon in this type of offending and generally is to be given less weight.
Re s16A(2)(n) – rehabilitation prospects; and s16A(2)(p) – the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants
36At the time when these written submissions were made, there was no other information regarding issues now raised by your counsel.
37Counsel for the prosecution further submitted orally in response to various matters raised by your counsel:
(a) the matter having resolved during the course of the COVID‑19 pandemic, you were entitled to an 'additional, palpable amelioration of sentence' (reference was made to Worboyes v The Queen [2021] VSCA 169 at [39];
(b) that there had been 'some' delay due to the plea hearing fixed for January 2023 having to be adjourned because of previous counsel's mother being unwell, and delayed generally as a result of the COVID‑19 pandemic, all of which should be taken into account;
(c) that during your period on remand, you would have suffered hardship as a result of the COVID‑19 pandemic, and in particular reference was made to various lockdowns, restrictions on visits from both family and loved ones to the prison and general concern about your family, all of which should be taken into account;
(d) counsel for the prosecution accepted that given the provisions of the Migration Act, you do face the prospect of being deported and the relevant principles of such should be applied;
(e) counsel for the prosecution ultimately submitted that in passing sentence for a Federal offence, regard must be had to sentencing practices in order to promote national sentencing consistency. Comparable cases may be confined to cases which are properly described as 'relevant comparators' (whether because they are materially the same or 'instructively different'), and sufficient information must be provided to enable the Court to make meaningful comparisons. Reference was made to DPP (Cth) v Thomas [2016] VSCA 237; (2016) 53 VR 546 [182] (Redlich, Santamaria and McLeish JJA), citing Maxwell P in DPP v Frewstal Pty Ltd [2015] VSCA 266; (2015) 47 VR 660, 671 [49]. Counsel for the prosecution also referred to R v Pham [2015] HCA 39; (2015) 256 CLR 550, wherein the High Court stated that having regard to comparable cases served two purposes:
– first, it provides guidance as to the identification of an application of relevant sentencing principles;
– secondly, a comparable sentence may yield discernible sentencing practices and possibly a range of sentences against which to examine a proposed sentence.
In relation to the latter, comparable sentences may be used as yardsticks that may serve to illustrate, but not to find, the possible range of available sentences. (Reference was made to Pham (op cit) [49]. However, the limitations of current cases has been made clear by the High Court in Kilic (op cit) and DPP v Dalgleish (2017) 262 CLR 428.
38I refer to Exhibit 3, being a schedule of the comparative cases consisting of two tables of potentially comparative sentences handed down by appellate courts:
(a) a table relating to the offence of attempting to possess a marketable quantity of border-controlled drugs; and
(b) a table relating to the offence of importing a marketable quantity of a border controlled drugs.
39In particular, counsel for the prosecution submitted that the case of El-Ghourani v R [2009] NSWCCA 140, a decision of the New South Wales Court of Appeal, is of some assistance.
Conclusion
40You have pleaded guilty to two very serious charges – that you between 15 March 2021 and 26 March 2021 attempted to possess a substance, the substance having been unlawfully imported and the substance being a border-controlled drug (namely, heroin) with the quantity to possess being a marketable quantity (Charge 1) and possessing a substance, the substance being reasonably suspected of having been unlawfully imported and the substance being a border-controlled drug (namely, heroin) with the quantity possessed being a marketable quantity (Charge 2), both of which have a maximum penalty of 25 years’ imprisonment or 5,000 penalty units or both.
41The amount of heroin involved in each charge was significant. In relation to Charge 1, the amount of pure heroin was significant. In relation to Charge 1, the amount of pure heroin was between 205‑280 grams which is over 100 times the marketable quantity of 2 grams, and indeed, is over one-eighth of a commercial quantity, which is 1.5 kilograms. Similarly, in relation to Charge 2, which involved 249 grams of pure heroin, this is over 100 times the marketable quantity and over one-eighth of a commercial quantity.
42In relation to Charge 1, your role through subterfuge, using false addresses, false names, and different telephone numbers, sought to take possession of the consignment of heroin delivered to DHL Port Melbourne situated at Tullamarine.
43In conjunction with your co-accused, Danielle Bell, you made multiple attempts to inquire about and/or collect the consignment the subject of Charge 1. In particular, you called DHL on 15 March 2021; called DHL twice using the false name “Andrew Agha” on 16 March 2021; called DHL using the false name “Andrew Agha” on 17 March 2021; called DHL using the false name “Andrew Agha” on 17 March 2021; attended DHL at Melbourne Airport and attempted to collect the consignment on 18 March 2021; called DHL using the false name “Andrew” on 19 March 2021; called DHL using the false name “Andrew”; and called DHL using the false name “Andrew Agha” on 26 March 2021.
44Although the evidence does not indicate that you organised the importation, clearly you and your co-accused, Bell, were the intended consignees to collect the drug importation. Furthermore, it is not known whether any other person was involved in the offending in Australia.
45Although I accept that you were not the top person in any hierarchy of drug importation, you were clearly in the chain and facilitated the entry of those drugs into Australia. On the evidence before the Court, it is hard to say where you fit precisely in the hierarchy, although it is clear enough you were well aware of the subterfuge involving a variety of phone numbers, and employing a different name. You were well aware that this was not an importation of mobile phones, as you said to the police.
46As I have already recorded, I find beyond reasonable doubt that you knew that the consignment consisted of illicit drugs being imported into Australia, albeit not necessarily that such drug was heroin.
47Furthermore, although you had experienced methylamphetamine prior to your offending, there is no evidence to suggest that your involvement in such importation was to feed any drug habit of yours. Indeed, the evidence makes clear that you entered into such activities for the purposes of obtaining monies following the failure of your Footscray Market venture, and, of course, to assist your family who, at that time, consisted of three children (the eldest of whom was the child of your wife as a result of a previous relationship). Seemingly, at the time of your offending, your wife was pregnant with a fourth child whose birth occurred during your period on remand.
48The evidence before the Court is that you stated during your record of interview that you were going to be paid $1,000 for collecting the consignment, and although it is not clear whether you were to be paid a further $1,000 for picking up the package in Adelaide and bringing it to Melbourne, such package containing similar flasks as in the consignment and containing heroin. It may be that the total amount was $1,000 for both services. Whether this be correct, whether the overall amount of money was $1,000 or $2,000, is based on your answers at the record of interview which, as I have already noted, was not fulsome in your admissions.
49Again, in relation to Charge 2, given the subterfuge that the package was addressed to 'Godswill Leon', with you being given the fake ID of Godswill Leon made with your photograph, makes it highly unlikely that you understood that such package only contained clothes and water bottle.
50You came to Australia on a tourist visa, having fled your country of birth, Nigeria, because males in their 20s were forced to work for government political parties and any refusal resulted in violent punishment. Since coming to Australia, you have worked as a forklift driver in a factory, a courier driver for eight months and, as recorded, also ran your own clothing shop at the Footscray Market. You ultimately had to liquidate such business and were left with significant financial debts.
51Following the death of your mother in 2018, you informed a psychologist that you were feeling depressed and looking for a sense of purpose, and were suffering from aggravated grief because of your strong attachment to your mother. At that time, you became involved with a “negative peer group” which introduced you to narcotics, and, in particular, you commenced to use methylamphetamine. There is no issue that over the years since your arrival in Australia, you have no prior convictions for any type of offending and seemingly were of good character, performing work and financially maintaining your growing family.
52As was stated in Nguyen (op cit), the difficulty of detecting importation offences, and the grave social consequences that follow, suggest that general deterrence is to be given chief weight on sentence and stern punishment will be warranted in almost every case. In particular, 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. In particular, involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise, the interests of general deterrence are not served.
53I do also note, consistent with Nguyen, that 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 that person intended to do with the drug, are relevant, to a determinative degree, of moral culpability attached to the actual act of attempted possession itself. Again though, offences of attempted possession are not, for that reason, in a less serious category than that of importing the drugs.
54I consider the offending in relation to Charge 2, although serious, is objectively less serious than that attending Charge 1, bearing in mind that on the evidence, you were only a courier from Adelaide to Melbourne and there is no evidence involving you as to the importation of that drug or anything to do with the distribution of that drug.
55Considering the nature of the offending, the amount of drug involved, and the potential consequences of that drug being distributed within the community, I view the offending constituted by both charges to be objectively serious, particularly in relation to Charge 1, bearing in mind that you had played an active role in the attempt to possess an unlawfully imported border-controlled drug, namely heroin.
56In mitigation of your sentence, I take account of the following matters:
(a) Your plea of guilty to the offences at the earliest reasonable opportunity. I accept that such plea of guilty has significant utilitarian value and also a plea should attract 'an actual and palpable amelioration of sentence' pursuant to Worboyes (op cit). I also accept that some weight should be given to such a plea as it also demonstrates some willingness to accept full responsibility for your offending and to facilitate the course of justice;
(b) In relation to remorse, as I have already indicated, Mr Kleynhans, in his report under the heading 'Remorse', notes that you are remorseful about your inappropriate responsibility when you were abusing ice as you became addicted to this and it would have an adverse effect on your immediate family (see paragraph 45). Furthermore, Mr Kleynhans, notes under the heading 'Emotional behavioural problems' that you were significantly disappointed with yourself and were remorseful (in relation to your misbehaviours), (see paragraph 40). I also note that in your references from Mr Akinola and Mr Ozougwu (Exhibit D) both make reference to you being remorseful in relation to the offending. Ultimately, I consider you had shown some remorse perhaps not strongly directed to having remorse for the consequences of an illicit drug such as heroin being distributed in the community giving rise to the devastation that it causes to lives.
(c) You have no prior criminal history in Australia and I am informed by your counsel you had no prior convictions when living in Nigeria. I have already commented on the significance of a person of good character being convicted of drug offences.
(d) I accept that in the two years or more that you have been on remand, you would have experienced frequent lockdowns, limited access to visitors and many of the programs which would normally run in prison having been suspended or cancelled. I take these matters into account when determining an appropriate sentence.
(e) I also accept that considering that you will be sentenced to a period of imprisonment in excess of 12 months, you face the prospect of being deported as a result of the provisions of the Migration Act 1958. I accept, consistent with the authorities, that such prospect renders your imprisonment more onerous because you will face the prospect of being deported and, secondly and perhaps more importantly, deportation, should it occur, would constitute an additional punishment because it destroys the opportunity for you to settle permanently in Australia and will potentially cause you to be separated from your family in Australia. I accept that such a situation would weigh heavily on you, as you migrated to Australia for a better future and managed to obtain employment and start a family.
(f) I also accept that you suffer hardship knowing that your wife and young family now have no breadwinner and apparently receive social service benefits. Furthermore, I accept that there is third party hardship suffered by your family for those reasons and such hardship will extend for some time into the future.
(g) I also accept that there has been a delay in this matter proceeding to a plea, bearing in mind you were charged on 27 April 2021, underwent a committal hearing on 14 February 2022, with the matter resolved on 30 May 2022 and the first plea hearing before this Court was not until 15 May 2023. During this time, you have been on remand and, consistent with the authorities to which I have already referred, I consider such delay is 'unduly long' and that you have had this matter 'hanging over' your head over that period of delay. Accordingly, I will take into account the issue of delay in the way just described.
(h) It was submitted that you showed cooperation with authorities, and as I have already described, I consider that notwithstanding you made some partial admissions in relation to you being involved in the picking up of the consignment, I am not satisfied that such admissions were anything near fulsome. I give limited weight to this particular aspect of your plea.
(i) In relation to the issue of Bugmy, it was submitted that what was referred to as the 'more general' way of applying the principles in Bugmy was relevant to your moral culpability. In that respect, the 'more general' way, as described in paragraph [40] of Bugmy, was in circumstances where an offender has been raised in a community surrounded by alcohol abuse and violence an that which was said, may mitigate the sentence because of his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way. In this respect, much reliance was placed on the evidence from the psychologist, Mr Kleynhans, who opined that your 'dysfunctional personality development (based on [your] dysfunctional family and attachment), [your] cultural background and [your] substance abuse created the context in which [you] developed personality adjustment and mental health problems, especially how it relates to the development of a substance abuse disorder'. Furthermore, Mr Kleynhans opined that perpetuating factors for [your] stress and ongoing offending during a certain period are based on the problems that your cultural background in growing up in a large family where you had around 22 siblings and your father struggling to support his large family and where you were forced to leave school at Grade 6 by your father to prepare yourself for the labour market and earning your income.
I also note that apparently you instructed your counsel that although your childhood was difficult, you were not subjected to violence, although you did 'regularly witness violent incidents involving murders and males carrying weapons and inflicting violence on each other'.
It is to be noted that on the evidence before the Court, on coming to Australia, you developed a relationship reasonably quickly with your present wife, have had three children between you over the years, and you have been largely in constant employment, ending up running a stall at the Footscray Market. Your commencement of taking methylamphetamine followed the death of your mother.
In particular, you have made claim, both to the psychologists and through submissions by your counsel, that you engaged in the offending to obtain moneys to support your family.
Although I accept that your family background in Nigeria could be described as dysfunctional given the number of mouths that had to be fed and you having to leave school at a very young age to help support that family, I consider that the relationship between those events and your offending is tenuous, but I do allow some weight in relation to that issue.
57In relation to your counsel’s submission that Verdins 5 and 6 apply – more particularly, principle 5 – there is no issue that Mr Kleynhans diagnosed you to be suffering from, amongst other things, a persistent depressive disorder (dysthymia with anxious distress) although nowhere in his report does he opine that a given sentence will weigh more heavily on you than it would on a person in normal health as a result of some impaired mental functioning. Your counsel submitted that I should effectively infer that to be the case given the psychological diagnosis and that this was your first time in prison. I should add that, bearing in mind that you have been in prison for over two years, there was no evidence before the Court that your incarceration in any way has impacted on your psychological condition. I accept that there is some attraction to the view that prisoners suffering from a mental impairment described by the psychologist may mean that a given sentence will weigh more heavily on you than it would on a person in normal health. In all the circumstances, I give some very limited weight to this proposition.
58I consider your moral culpability is reduced to some extent by the circumstances I have described in relation to the Bugmy principle. However, it must be borne in mind that, in relation to the consignment, you were well aware what your role was and persisted in obtaining the consignment over a number of days, involving attendances and telephone calls. Furthermore, I also consider that, in relation to the carriage of material from Adelaide to Melbourne, you were, as I have already found, aware that it was illicit drugs, albeit not necessarily heroin.
59As is made plain by the relevant authorities, general deterrence is the most important consideration in the sentencing matrix. Given there are two offences, I consider that specific deterrence plays a limited role. Furthermore, just punishment in the circumstances of this matter does involve a stern penalty.
60In relation to your prospects of rehabilitation, I submit they are reasonable, given that you will be sentenced to a stern period of imprisonment which hopefully you will learn not to be involved with drugs again.
61Having taken all these matters into account, I intend to sentence you to a period of imprisonment in relation to each offence. However, I will only cumulate part of the sentence in relation to Charge 2, bearing in mind the principles of totality and proportionality.
62I have read the various authorities set out in Exhibit 3 which have been of some limited assistance.
63Please be upstanding, well you do not have to stand up.:
(a) In relation to Charge 1, you are convicted and sentenced to a period of imprisonment of seven years to commence from this date.
(b) In relation to Charge 2, you are convicted and sentenced to a period of imprisonment of four years, such sentence to commence on 13 September 2027.
(c) The total effective sentence is eight years, and I direct that there be a non‑parole period of five years and four months.
(d) I declare that you have served up to, but not including this day, 869 days in pre-sentence detention and that such days should be administratively deducted from the sentence ordered against you.
(e) I declare, in the absence of your pleas of guilty, I would have sentenced you to a total effective sentence of ten years and six months' imprisonment. And I so order.
64MR RANJIT: As Your Honour pleases.
65HIS HONOUR: Ladies and gentlemen, I have checked the situation about Charge 2 running into Charge 1. I think I have got it right. I think I have started three years before the first sentences comes to an end, allowed one year over. So I think that gives rise to the total effective sentence of eight years. Yes, anything that you want to raise? No?
66MS SKOBLAR: No, Your Honour. Your Honour will note that a consent forfeiture was - - -
67HIS HONOUR: What was that, sorry?
68MS SKOBLAR: - - - sent to the Court yesterday and we would seek that that be - - -
69HIS HONOUR: Yes. No, yes, sorry, thanks for raising that. I have got that here.
70MS SKOBLAR: Yes. We would seek - - -
71HIS HONOUR: In the actual trial, there was no forfeiture order sought then, was there? Or the plea, I should say.
72MS SKOBLAR: Yes. We would seek that there be - that Mr Udemba sign the consent, so if that could be sent to Mr Udemba for signing and obviously - - -
73HIS HONOUR: Well, are you aware of this Mr - - -
74MR RANJIT: Yes, Your Honour. I've just had discussions with my instructors. There's no issues with that, Your Honour.
75HIS HONOUR: Yes. Look well perhaps - - -
76MS SKOBLAR: If it assist Your Honour - - -
77HIS HONOUR: - - - maybe I could add it now, couldn't I? Just make it part of the order.
78MS SKOBLAR: Yes. Your Honour can certainly do that as an alternative.
79HIS HONOUR: Yes. Finally, I refer to a document headed 'Consent to retention and destruction of property', indeed those acting for the prosecution effectively seek an order in relation to the following matters, and I will read the document into the transcript: 'I, Collins Udemba agree not to seek the return from Victoria Police of the following items, which were seized from Cairnlea Drive, Cairnlea, Victoria on 27 April 2021 and I agree to the destruction of those items by Victoria Police:
·202104-N-1605-0005-assorted clothing located within consignment 5067554656 amongst flasks
·202104-M-2282220002 - Victorian driver's licence in the name of Godswill Leon
·202104-M-2262-0007 - Apple iPhone in Rasta 'OneLove' cover being Optus service 043 263 8087 registered to Collins Udemba
·202104-M-2262-0009 - Samsung mobile phone service 047 874 3979 registered to Alicia Kelly
·202104-M-2299-0001 - Bob Marley beanie'.
80As I understand it, there is no issue that the defendant will sign the document to that effect.
81MR RANJIT: As Your Honour pleases.
82HIS HONOUR: Yes. Nothing else to raise? We will adjourn sine die, thank you.
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