Director of Public Prosecutions v Kanneh

[2017] VCC 1142

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-01992

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAO KANNEH

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 August 2017
CASE MAY BE CITED AS:	DPP v Kanneh
MEDIUM NEUTRAL CITATION:	[2017] VCC 1142

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry
For the Accused	Mr R. Rainer

HIS HONOUR: 

1Sao Ibrahim Kanneh, you have pleaded guilty to one charge of attempting to possess a marketable quantity of a border controlled drug.  The maximum penalty for this offence is 25 years' imprisonment.

2The Commonwealth Director of Public Prosecutions tendered a plea opening as Exhibit A.  A summary of your offending is as follows:

3In October 2015, Australia Border Force officers working at the TNT mail facility in Brisbane, examined a parcel sent from Shenzen, China.  The package was addressed to a Barry Davies at an address in Inala, Queensland.  The package contained a gold coloured Buddha statue made of cement.  The statue was hollow in the centre and found to contain 480.1 grams of pure
methylamphetamines.

4Australian Federal Police officers replaced the broken Buddha statue with
a waving cat statue and repackaged the box to conduct a controlled delivery.

5On 27 October 2015, a man purporting to be Barry Davies contacted TNT and requested that the consignment be redirected to an address in St Albans, Victoria.

6On 28 October, a man purporting to be “Barry Davies” again contacted TNT and redirected the delivery to 23 Meade Way, Sydenham.

7On 29 October, identifying himself as Barry Davies and later admitted to be you, a man contacted TNT and arranged to pay for the redirection.

8Also on 29 October, there was a call made all from a telephone number connected to the consignment to a number in mainland China.  The call lasted for 221 seconds.  Eighty minutes later, this number associated with the name,  Victor, called back the consignment number ending in 821.  There was
a conversation for 148 seconds.

9I note here, as it will become relevant later, that this contact number for “Victor” was found in your phone and also appeared in the contacts in the mobile phone belonging to your co-accused, Mr Nwachukwu, and on a piece of paper found in Mr Nwachukwu's possession.

10On 30 October, a man purporting to be Barry Davies contacted TNT on three occasions to ask as to the delivery status and to query whether a depot collection was possible.

11The witness from TNT, Jenny Stukla, stated that the man she spoke to who purported to be Barry Davies, “sounded to be Australian”.  Your co-accused,
Mr Nwachukwu, speaks with a very heavy accent.  No one but you and
Mr Nwachukwu have been directly implicated in this offending and you did not suggest to the police the identity of anyone else who may have been involved. Whilst you speak with an Australian accent, there is insufficient evidence for me to conclude that you were the caller, “Barry Davies”, on each and every occasion.  Nevertheless, I am satisfied on all of the evidence, that you had knowledge of and were complicit in the arrangements being made for the delivery of the package in advance of the delivery date.  This is all the more so for the fact that you made the calls to TNT on 29 October 2015.

12On the delivery date, that is, 2 November 2015, an AFP undercover operative posed as the delivery driver to deliver the package to 23 Meade Way, Sydenham.  When the driver arrived, he saw a “for lease” sign in the front yard. There was a handwritten note fixed on the front security door to the house.

13The controlled delivery was the subject of video and physical surveillance.  You walked to the front door of the house and removed a handwritten note which was addressed to TNT.  You approached the delivery driver and indicated that the parcel was yours.  You identified yourself as Barry Davies, but stated you did not have your wallet on you or any identification.  You said that you and your girlfriend lived at that address.

14You showed the note that had been fixed to the front door to the delivery driver. You told the police that you wrote the note.  You signed for the package and accepted it.  As the driver was in his van and about to leave, you again approached him and said that you had left your house key in your friend's car and that your friend would arrive soon.

15Tellingly, between 12:30 pm and 12:33 pm, Mr Nwachukwu attempted to call you several times using his mobile phone.

16You then walked towards a vacant block at the end of Meade Way with the package.  A few minutes later, Mr Nwachukwu was seen walking from your house, past 23 Meade Way and towards the vacant block.  The witness,
Ms Wollbrandt, gave evidence that she saw you and Mr Nwachukwu in the vicinity of the vacant block which was next door to her unit.  She engaged you both in conversation, essentially asking what you are doing there.  Moments later, one of you entered onto the block again and she saw one of you climbing up the back fence.

17You and Nwachukwu then walked back up Meade Way, towards the direction of his home at number 54.  AFP officers identified themselves and told you to get down on the ground.  Although you stopped and complied, Nwachukwu ran away from police.  He was arrested a short distance away.

18Police found the waving cat statue behind an electricity substation on the vacant block.  The statue was broken open.  The packaging for the consignment was located on the top of a carport roof, adjacent to the back fence that
Ms Wollbrandt had seen one of you climbing.

19A short time after this, the number associated with the contact, Victor, sent
Mr Nwachukwu a text message asking him, that is Mr Nwachukwu, to contact him. A short time later, the “Victor” telephone number attempted to call your phone. Neither of you could reply, as you were both then in custody.

20You were interviewed by police in records of interview conducted on
2 November and then again on 23 December 2015.  In the first interview, you denied any involvement in the offending.  In the second interview, you admitted that you had not been truthful in your first interview, but you largely blamed Mr Nwachukwu.  You referred to him as the “mastermind” and said that you had no idea what was going on.  Tellingly, however, you repeatedly referred to the statue in the consignment as a Buddha statue, yet police had replaced the original Buddha statue with the cat statue.  I am satisfied that by these constant references to the Buddha statue, that you understood before you took possession of the consignment package, that you expected the drugs to be delivered in a Buddha statue.

21Importantly, in this same record of interview, you told police that Victor in China imported this consignment for Mr Nwachukwu.  You also stated that you made the call to Victor on 29 October.  Mr Nwachukwu had given you the Telstra telephone later found in Nwachukwu’s car, in order to make the call.

22You also told police that it was you who smashed open the statue when you opened the consignment, but you denied to police that you knew that there were to be drugs in the consignment.  By your plea of guilty, however, you implicitly admit that this denial of knowledge in the record of interview was false.  Indeed, many of the answers you gave to police in the records of interview cannot be relied on, as they are contradicted by your plea of guilty.

23You were remanded in custody after your arrest on 2 November 2015.  You have remained in custody on this matter since that time.

Analysis of your offending

24I turn now to an analysis of the offending.

25The offence of attempting to possess a marketable quantity of an illegally imported drug, is a serious offence indeed.  This is reflected by the fact that the maximum penalty for such offending is 25 years' imprisonment.  In this instance, you attempted to take possession of 480 grams (pure) of the drug methylamphetamine.  This represents many times over the marketable quantity of the drug.  Significantly, it also represents .64 of the commercial quantity of the drug.  In other words, you attempted to possess a significant amount of an illegally imported drug with a street value of about $150,000.

26It is apparent from my outline of the facts that you were intimately involved in the preparations with Victor and with TNT for receiving the consignment.  You then took possession of the consignment from the TNT driver and had written a note which you gave to him.  After that, it was you who took the package down to the vacant block, away from the delivery address and opened it and smashed open the statue.  Your criminality is therefore high.

27Furthermore, it may be concluded from your discussions with Victor and with TNT and then your actions in actually taking physical possession of the consignment, that you were generally aware of the size or amount of the drugs involved.  I can only conclude that your participation was motivated by profit.

28Given the answers in your record of interview and the submissions of your counsel, denying that you were a principal or equal with Mr Nwachukwu in the attempt to take possession of the drugs, there is little point in me seeking to categorise or label your role in this venture.  It is sufficient for me to note, as
I just have, your intimate and integral involvement in this venture, and to proceed on the basis that you are motivated purely by greed.  Furthermore, I note the answers you gave in the record of interview, where you stated that this was the venture of Mr Nwachukwu and not one carried out on behalf of the person, Solomon.  I do not use this against Mr Nwachukwu, but to note that there is no evidence of the involvement of anyone but Victor, Nwachukwu and you.

Personal circumstances

29I turn now to your personal circumstances.

30You are 25 years old and were born in Sierra Leone un June 1992.  You were 23 at the time of the offending.  You have six siblings.  Your father and older brother were killed in the Civil War in Sierra Leone. You saw your mother die giving birth to your youngest siblings.

31You have one brother who you believe lives in Liberia.  As a child, you spent five years in a refugee camp in Ghana, where you are looked after by your aunt, Fatima, and your grandmother.  They took care of you, your twin sister and your three younger siblings.

32You were resettled as a refugee in Australia in 2005.  You are now an Australian citizen.  You originally settled in Hobart.  The email from Stephanie Perrott,
a retired trauma counsellor, describes you in Hobart as a quiet and
well-behaved young boy, focused on your studies and happy with your family life.  At the time, it appears Ms Perrott worked at the Phoenix Centre in Hobart and provided counselling to you and your family in respect to the trauma and upheaval that you had experienced in your life to that point.  Your early years in Australia seemed stable, settled and happy.  You learned English very quickly, you were a good student and by Year 8, you were nominated as
a student leader.  In Year 10, you won a scholarship to attend the Guildford Young Catholic College.  You completed Years 10 and 11 successfully.

33Unfortunately, in 2011, you were relocated from Hobart to Melbourne.  It appears your aunt moved to Melbourne to live with her fiancé.

34It was at that time in Melbourne that things started to go bad for you.  You started smoking cannabis and did not re-enrol in school initially, instead you worked in a fashion store.  Eventually though, you finished Year 12.

35You have worked in customer service, retail, concrete labouring, pallet building and you also hold a forklift license and certificates in transport logistics.  You told the psychologist, Mr Cummins, that you received these certificates through courses completed on a CCO.  

36It appears that in November 2015, you were not employed, but you are doing odd jobs with your co-offender.  You told police in your second record of interview that you were being paid to drive him around and to run errands.

37Your work history has been sporadic.  Your ability to work has been affected by your ongoing problems with cannabis and alcohol.

38At the time of your arrest on 2 November 2015, you were on bail for serious offences which were withdrawn and for other offences for which you were acquitted at an unrelated trial.  Although I do not have the precise calculation, it appears that you spent nine and a half months dead time on remand in relation to these two different sets of offences, where in effect, no finding of guilt was made.  In accordance with established legal principle and in accordance with the submissions made, both by your counsel and the prosecution, I will broadly take into account this dead time in fixing the sentence for this matter.

39In relation to your prior offending, you have relatively few prior matters and all follow from your first appearance in the Magistrates' Court in 2012.  Further, it must be said that you have nothing in your prior history as serious as this. Nevertheless, you have a prior matter for robbery, for which you received
a CCO.  You breached that CCO.  In December 2013, you were convicted of theft and placed on a further CCO for a period of 15 months, which included treatment for alcohol dependency and mental health issues.  You complied with that order.  In October 2015, you were convicted of common-law affray and received a fine.

40Since you have been in custody, you have completed relapse prevention programs for alcohol and substance abuse.  In your time in custody, you have provided six samples for urine analysis, which confirm that you are free of all illicit drugs.

41I was provided with a report from Mr Jeffrey Cummins, psychologist.  
Mr Cummins assessed you by videoconference on 9 June 2017.  In the interview with Mr Cummins, you highlighted a sense of isolation and confusion about life.  You told him that in November 2015, you were feeling psychologically lost, that you were dependent on cannabis, often abusing alcohol, and mixing with the wrong crowd.  You told Mr Cummins that it was as a result of associating with the wrong crowd that you “agreed to earn some pocket money” through the receipt of the parcel which you knew to be suspicious.

42Mr Cummins diagnosed you with an adjustment disorder, with mixed anxiety and depressed mood and features of traumatisation, which seemed to relate to your belief that you were unreasonably charged with the sexual offending which was withdrawn and then with the armed robberies of which you were acquitted. Mr Cummins considers that you are obsessed with these issues.  Clearly,
Mr Cummins was concerned also to assess the impact of your time in Sierra Leone and Ghana.  Perhaps understandably though, you would not talk to him about these issues.

43Mr Cummins considers that you present as a relatively immature young adult in urgent need of mental health treatment and ongoing emotional support. Although you appreciate the care and support received from your aunt and grandmother, Mr Cummins considers that you need help from a mental health professional who can deal with the sort of trauma that you experienced as
a young child.

44As a consequence, Mr Cummins considers you to be significantly psychologically vulnerable.  Whilst you are committed to remaining drug-free and control your alcohol intake, Mr Cummins considers that you require a parole period which will subject you to this close supervision and monitoring.  He considers that the longer you spend in custody, the more likely this will reinforce your feelings of failure, isolation and powerlessness.

45In your interview with Mr Cummins, he said you presented as apologetic and embarrassed at your involvement in this offending.  You regard it as stupid and self-destructive conduct, which you committed at a time when you had given up on yourself psychologically.  Furthermore, I received a long letter which you had written yourself, dated 28 April 2017.  That letter is a real expression of your remorse for this offending. 

Submissions of counsel

46I turn to the submissions of your counsel.

47It was submitted on your behalf and accepted by the Crown, that the plea of guilty was made at a time which gives it a utilitarian benefit and facilitates the course of justice.  Furthermore, the plea and other statements provide ample evidence of remorse.  The Crown accepted that you were remorseful for your involvement. 

48The sentence I impose in this matter must take into account the utilitarian benefit of the plea, the expressions of remorse and the fact that the plea facilitates the course of justice.

49Next, it was submitted that the sentence I impose should be moderated in accordance with the principles of Verdins.  I consider that in this case, the fifth and sixth principles in Verdins apply; that is, prison will weigh more heavily upon you because of your psychological condition and that there is a serious risk of imprisonment having a significant adverse effect on your mental health.
I consider this finding is open on the opinion of Mr Cummins.  I consider the background information provided by Ms Perrott provides further reason to suspect that your traumatic childhood has contributed to your vulnerable psychological condition.

50Your counsel submitted that at 25, you are still a relatively young man with good prospects for future rehabilitation.  You have a supportive family, no current addictions and your counsel submitted that your time in custody has had a very profound effect on your outlook on life.  The Crown accepts that you have prospects for rehabilitation.  I consider that you have reasonable prospects for rehabilitation.  The sentence I impose must take those prospects into account.

51The Crown provided me with a list of comparative cases.  The Crown submits that in accordance with the authorities, general deterrence and denunciation are of primary importance, that is, the sentence to be imposed in this case 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 accept and endorse that submission.

52I have considered the table of cases provided to me and the cases referred to by your counsel, which were principally sentences imposed by Judges of this court in other matters.  Ultimately, the sentence I impose upon you must take into account the established sentencing principles, having regard to sentences imposed in Australian courts.  However, what is most important in this case, is to determine the sentence according to the circumstances of this case and of you.  And, of course, taking into account, as I have said already, the dead time that you served for the offences which were withdrawn and of which you were acquitted.  

Sentence

53On the count of attempting to possess a marketable quantity of methylamphetamine, you are therefore convicted and sentenced to a period of four years' imprisonment. 

54The sentence I impose upon you commences today.

55I order that you serve a non-parole period of two years and nine months. 

56I declare that the period of 655 days, excluding today, pre-sentence detention is reckoned as already served.