Director of Public Prosecutions v Akeno

[2018] VCC 1816

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-16-02251

DIRECTOR OF PUBLIC PROSECUTIONS

v

HENRY AKENO

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 November 2018
CASE MAY BE CITED AS:	DPP v Akeno
MEDIUM NEUTRAL CITATION:	[2018] VCC 1816

REASONS FOR SENTENCE

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Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie
For the Accused	Ms C. Hollingworth

HER HONOUR:

1Henry Akeno, you have been found guilty after trial of two charges of importing a commercial quantity of methamphetamine contrary to the Commonwealth Criminal Code.  The maximum penalty for that offence is life imprisonment and/or a fine of $1,350,000.  You were further found guilty of two charges of importing a marketable quantity of a border controlled drug.  The maximum penalty for that offence is 25 years imprisonment and/or a fine of $900,000.

2The importations in question occurred on 2 October 2015, 4 January 2016, 17 March 2016 and 6 April 2016.  Following the execution of a search warrant at your home, you were arrested on 20 April 2016 and have remained in custody ever since.

3The circumstances of your offending are as follows.  You were the primary user of a Nokia handset over a period of some five months during which time calls were intercepted.  Before importations for which you were found guilty amounted to a total of 3,485 grams of methamphetamine, none of which reached its ultimate destination given that each of the imported items was intercepted.

4It is conceded that a term of imprisonment is the only appropriate sentence for this offending and it is clear from the penalties prescribed by Parliament that these are extremely serious offences.

5The six consignments from various origins were intercepted after X-ray or inspection have revealed anomalies in the packages sought to be imported.  Each consignment had a telephone number connected to it to enable contact to an organiser for the collection or recovery of the delivery and although the numbers were different, each telephone number was different, each number in relation to the four charges for which you were found guilty was used on a Nokia mobile phone bearing the same IMEI number which was found beside your bed when a search warrant was eventually executed at your address.

6The two charges of which you were acquitted did not involve the use of that Nokia mobile phone found in your possession.  The address for each consignment was that of a vacant or seemingly vacant property or a property that was advertised for rent.

7In relation to Charge 3, the contents of the parcel which arrived in Australia on 21 October 2015 were four DVD players as described on the package each of which were found to contain a while crystalline substance wrapped in foil.  It was sent from China.

8In relation to Consignment 4, the contents were a petrol driven motor containing eight packages wrapped in plastic sent from Hong Kong.  In relation to Charge 5, the contents of the package were ten CCTV cameras, eight of which contained a package of crystalline substance, later of course identified as methamphetamine.  That parcel came from Malaysia.  The final consignment relating to Charge 6 arrived on 6 April 2016.  It contained 19 CCTV cameras also containing a concealed crystalline substance.

9The first intercepted consignment was October 2015 and the last was 6 April 2016.  The substance on analysis was found to be methamphetamine.

10The majority of the evidence in the trial consisted of the intercepted telephone calls from various mobile numbers or used in that Nokia handset with that IMEI number of 351845079347570.  Intercepted phone calls were transcribed and interpreted.  The interpreter gave extensive evidence during the course of the trial in relation to the translated calls and the different dialects spoken in Nigeria.  Selected calls were played in the original language with translation provided.

11You also gave evidence during the trial and participated in a record of interview which was played in court.  Voice identification clearly played paid some part in the jury verdict.  You denied that you were the person speaking in the calls related to the importations.

12Your precise role in the importation is not clear.  You are the only person charged and you deny any part in this offending.  Therefore the only conclusion open on the evidence I have is that you played part in the organisation of the consignments, the form of the methamphetamine imported, its origin, how it was to be delivered and with what carrier it was to be delivered once it arrived in Australia and on that basis you were involved in the importation for financial gain.

13The quantity of the drug imported is a major determinant of the seriousness of your offending.  You imported 3,495 grams of methamphetamine being 2,791.57 grams of pure methamphetamine in total.

14In relation to Charges 3 and 6, you imported 1,183 grams and 763 grams respectively being 1.6 times and one times the cut off between a marketable and a commercial quantity placing you in the lower range for the importation of a commercial quantity.

15In relation to Charges 4 and 5, you imported 539 grams and 305 grams respectively being 269 times and 152 times the marketable quantity therefore it is a more serious offending in relation to the charges involving the marketable quantity.

16I now turn to matters personal to you.  You are now aged 32 and at the time of committing these offences, you were 29 years old.  You were born in Nigeria.  Due to your father's work in construction when you were aged five, the family moved to Ghana for him to pursue his career.  However, unrest between the two countries, resulted in your family returning to Nigeria in 1991.

17You have three older siblings and I note that your mother was a teacher.  You resumed your schooling in Nigeria on your return and you finished to the
Year of 12 equivalent.  You then went on to attend the Imo State University studying government and public administration.  At one stage, you worked with a child immunisation program, the National Youth Service Scheme and before moving to Australia, you worked in marketing and insurance.

18You were involved in a serious motor vehicle accident in 2011 in Nigeria which resulted in a traumatic lacerated injury to the occipital area of your head and resulted in hospitalisation.  You were discharged as cured.  Since that hospitalisation, you have had ongoing difficulties with memory, seizures and neck movements and you received anti-seizure medication twice daily.  A bundle of medical documents from your mother in Enugu in Africa was tendered as Exhibit 4 relating to that motor vehicle accident in 2011.

19A report dated 14 May 2018 from Dr Erin Cunningham tendered as Exhibit 3 resulted in he expressing an opinion that you presented as psychotic at the time of the assessment and too unwell to provide information which would allow for any further diagnosis.  In that report, Dr Cunningham recommended neuropsychological assessment and he further opined that due to your delusions, you were a risk to yourself and others and you would require psychiatric management and treatment.

20Consequently, a neuropsychological assessment report from Jurmaine Health was prepared by James Lewis and Dr Judy Tang and tendered as Exhibit 2.  The information gained from that was that you had ongoing problems with your neck due to the injuries which you had incurred in the motor vehicle accident and that you are still experiencing seizures, insomnia, depression, stress, difficulty with concentration and a form of amnesia.  It appears that you are isolated in custody.  You presented with persecutory thoughts and suffer from your sense of isolation and alienation which are exacerbated by the depression and anxiety and symptoms post-traumatic stress.

21It is noted in the report that you exhibited impairment in several areas with severe impairments in learning and memory, inhibition of automatic responses and set-shifting.  The opinion was expressed that although your current difficulties maybe due in part to your head injury, it is likely that there are additional contributing factors.

22It is difficult to untangle the effects of your brain injury from the impact of your psychological distress in relation to the effects on your cognitive functioning.  It appears that you have isolated yourself and you require professional assistance and further investigation of your brain injury and as I understand it, until now, there has been no further treatment.

23The report also affirms that you need intensive and ongoing psychological support and treatment with an initial review by a psychiatrist and ongoing counselling and support. As I understand it, nothing has yet happened.

24I note that you have two unrelated prior convictions; one was a contravention of a family violence order; and secondly, a recklessly cause injury.  For the first, you received a community corrections order with conviction and for the recklessly cause injury, you received a fine without conviction.  Apart from that, you have no other prior convictions.

25Since your arrival in Australia, you formed a relationship with Emma Jefferson with whom you have a son.  That relationship did not survive.  During your incarceration and throughout the trial, you were supported by your current partner, Donna, and I understand this to be an ongoing relationship.

26Otherwise, you are isolated from your family in Australia and from your family in Nigeria. You are suffering from the fact that your father is extremely ill having been diagnosed with cancer and you indicated that apart from your relationship with Donna and of course your son, you would prefer to return to Nigeria.

27It is clear from the reports which I have before me that you have suffered a great deal since your incarceration due to that combination of isolation and your cognitive and mental disadvantages, in particular your extremely high stress levels and suicidal deviation.

28From the material before me, I find that any term of imprisonment you serve will result in additional hardship to you as opposed to a person not suffering from those disabilities and your feelings of alienation, isolation and persecution exacerbated by the fact that you are physically remote from your family in Africa.

29I now turn to the other relevant sentencing principles I need to take into account in sentencing you as set out in s.16A(2) of the Crimes Act 1914. I take into account the matters listed which are applicable to your circumstances.

30Firstly, in relation to the nature and circumstances of the offending, there were four separate attempts to successfully conclude an importation either of a commercial or marketable quantity, the seriousness of which is evidenced by the penalties prescribed by Parliament.  Also the attempts you made to successfully conclude the importations.

31I also take into account the fact that your offending is part of a course of conduct which persisted for a period of some five months.  The importations were unsuccessful to a certain degree due to their interception but the importation of drugs into this country feeds that market which lies at the root of so much criminal behaviour in the community given the enormous amounts of money which can be obtained through the drug industry.

32I take into account the principle of specific deterrence, that you yourself must be deterred from embarking on such activities again for offending in such a way and I do take that into account.

33I also take into account the principles of general deterrence, that is the effect that the sentence that I impose may have on anyone else considering importing drugs into this country and sentencing is the only available weapon in this country in protecting the community from the stream of imported drugs coming into this country and that is why these penalties are high.

34In relation to the probable effect that the sentence that I impose will have on your family in Nigeria and for your partner and your child in Australia, I can only conclude that it will be devastating.

35You have maintained throughout the period following your apprehension and during your trial that you were not the person responsible in any way for these importations, that it was not your voice which was caught on the telephone which was found in your possession.  Consequently, there is a lack of any evidence indicating remorse or prospects of your rehabilitation.  It is therefore extremely difficult in sentencing you to assess your prospects of rehabilitation and that is just a blank in the material that I have before me.

36Despite your experience of imprisonment, however, and the lack of any psychological or counselling support available to you and given your report that you have felt suicidal every day since being incarcerated, I note that you have not remained idle.  A letter was tendered on your behalf indicating that you have had involvement in drug and alcohol programs offered by Caraniche Pty Ltd.  You commenced a 24-hour drug and alcohol treatment program on 31 August.  You were scheduled to complete the program on 5 October and at the end of September when the letter was written, you had attended all sessions and engaged well and that is encouraging.

37You have also engaged in a number of courses as evidenced by the certificates tendered as part of Exhibit 5 on your plea.  I note you have sought at least of lately to make some use of your time in prison.

38I also take into account the fact that you will be deported on your release from prison and as far as I can gather, you have expressed mixed feelings in relation to your return to Nigeria but it is clear that when you are deported, you will suffer separation from your son and your current partner and I also take those matters into consideration.

39In overall, I have sought to balance the matters involving you personally, your isolation, the fact you will require psychiatric management and treatment in relation to your mental state and your psychological distress, your impaired cognitive functioning against the manifest seriousness of your offending and the appropriate penalties for such offending.

40I have also taken into account in sentencing you the authorities to which I have been referred.  On analysis of those authorities and the summary chart that was also tendered, it is clear that any sentence where any leniency has been shown at all is in cases where there has been cooperation and/or assistance and a plea of guilty.  These are all factors which are missing from your situation and the submission that is made on your behalf.  It makes the task difficult.

41It is clear and conceded as I indicated that the only appropriate sentence is one of a term of imprisonment following which you will be deported.  It was further conceded by your counsel that there should be some cumulation between charges in this case and I have sought to impose cumulation while having regard to the principles of totality.

42Now I am going to sentence you and as I do it, I am going to hand down to counsel an outline of the sentences and the cumulation starting dates.

43Could you stand for me please?

44On Charge 3, you are convicted and sentenced to nine years' imprisonment.  The sentence will commence today, 7 November 2018.

45On Charge 6, you are convicted and sentenced to nine years' imprisonment.  I order that that sentence commence on 7 November 2020.

46On Charge 4, you are convicted and sentenced to seven years' imprisonment.  The sentence will commence on 7 November 2024.

47And on Charge 5, you are convicted and sentenced to seven years' imprisonment which will commence on 7 November 2026.

48That is a total effective sentence of 15 years.  I order that you serve ten years before being eligible for parole. I declare that the time you have spent in custody being 931 days not including today be deemed time served and I order that declaration be entered into the records of the court.