Director of Public Prosecutions v Nipoe
[2018] VCC 1854
•8 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00809
CR-16-02088
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| SEWHY NIPOE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
| DATE OF HEARINGS: CR-16-00809: CR-16-02088: | Pre-trial: 23 April 2018 | |
DATE OF SENTENCE: | 8 November 2018 | |
CASE MAY BE CITED AS: | DPP v Nipoe | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1854 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Conviction following trial on one charge of attempting to possess a marketable quantity of an unlawfully imported border-controlled drug (methamphetamine) and sentenced to 8 years’ imprisonment – plea of guilty to one charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug (methamphetamine) and sentenced to 9 years’ imprisonment – 2 years concurrency allowed in the interests of totality.
Legislation Cited: S 6AAA declaration in relation to commercial quantity offence: 10 years’ imprisonment with a non-parole period of 7½ years.
Cases Cited:
Sentence: Total effective sentence 15 years’ imprisonment with a non-parole period of 11 years.
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Mr J Shaw | Solicitor for the Commonwealth Director of Public Prosecutions |
| For the Accused (CR-16-00809) For the Accused (CR-16-02088) | Ms C Randazzo SC with Mr P Willee | Ann Valos Criminal Law and Victoria Legal Aid |
HER HONOUR:
1 Sewhy Nipoe, following a trial, a jury found you guilty of one charge of attempting to possess a marketable quantity of a border-controlled drug (methamphetamine) on 3 May 2018. This offence carries a maximum penalty of 25 years’ imprisonment, a fine of 5,000 penalty units, or both. On the date upon which a plea hearing for that charge was listed, namely, 17 May 2018, you pleaded guilty to another charge. This is a charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug (methamphetamine), which had been listed for trial on 2 July 2018. The latter offence carries a maximum penalty of life imprisonment, a fine of 7,500 penalty units, or both.
2 The offence of attempting to possess a marketable quantity of a border-controlled drug of which the jury found you guilty was committed on 21 August 2015. You had two co-accused involved in this offending. One is your nephew, Wilson Dahn, and another is Sam Teah, who is a friend. All three of you were born in Liberia, but have settled in Australia. Your two co-accused pleaded guilty to the offence and had been sentenced prior to your trial. Your nephew, Mr Dahn, had made a statement to police implicating you and had given an undertaken to give evidence against you, which he did at the trial.
3 The prosecution case against you in the jury trial was a circumstantial one which relied upon a variety of pieces of evidence. I have appended a summary of the prosecution opening to these sentencing remarks (Appendix A).
4 The prosecution relied upon evidence that you and your co-accused were closely associated and that telephone records showed that there was significant phone contact between your mobile phones in the days leading up to 21 August 2015. There was evidence that Sam Teah, using a pseudonym of Paul Sambo, had dealings with TNT freight company following the arrival of a package from Hong Kong addressed to Paul Sambo at 12 Beaufort Street, Somerset, Tasmania, on 11 August 2015. This consignment contained a suitcase of fifty-five ladies’ purses. Twenty of the purses were found to contain methamphetamine packaged in clear plastic, brown tape and foil. The total gross weight was 681.7 grams, of which the pure weight of methamphetamine was 544.6 grams (A marketable quantity of methamphetamine is 2 grams.[1]) It is not disputed that this had a wholesale value of $70,000 to $77,000.[2]
[1]Item 117, Schedule 4, Criminal Code Regulations 2002. I here note that the prosecutor, Mr Shaw, in his submissions, erroneously referred to Schedule 3 which relates to controlled drugs only, as distinct from border controlled drugs.
[2]Paragraph 24 of the Summary of Prosecution Opening and page 133 of transcript of plea hearing on 29 August 2018
5 The suitcase was ultimately delivered by TNT to an address in Margaret Street, Werribee, where your nephew, Mr Dahn, signed for it at 11:00 hours on 21 August 2015. Mr Dahn then drove to your home address at 1 Barmera Way, Truganina with the suitcase. At approximately 11.20 hours he placed the suitcase in the garage of your home. Shortly afterwards, at 11.30 hours it was seized by police when they executed a search warrant at your address. You were not home at that time, but arrived at your address at approximately 14:00 hours in the company of Mr Teah and another person. By that stage, Mr Dahn had been arrested.
6 On 14 August 2015, Mr Teah had three telephone conversations with persons from TNT. The last of these was at 17.09 hours. Evidence of telephone records showed that less than half an hour later, at 17.37 hours, Mr Teah’s phone called your phone. There were a further four calls between his phone and your phone up until 23.31 hours that night. On the following day, 15 April, there were nine contacts between your phone and Mr Teah’s phone, although two of the calls did not register as having any duration. On 16 August, there were eleven calls between Mr Teah’s phone and your phone. On 17 August, there were six calls between your phones, although two of them did not register as having any duration.
7 On 18 August 2018 Mr Teah’s phone called your phone at 9.45 hours. This was only two minutes after he had finished a call with TNT, in which a person from TNT had told Mr Teah that a payment of $120.59 would be required in order to redirect the freight from Tasmania to Melbourne. This was 1 of 15 contacts between your phone and Mr Teah’s phone that day, albeit that 2 calls did not register as having any duration. On this same day, there were four telephone calls made from your phone to Mr Dahn’s phone. On this day, 18 August, TNT had endeavoured to deliver the consignment to the Margaret Street, Werribee address, at 13.56 hours. This delivery was missed by Mr Dahn. Your phone had called Mr Dahn’s phone twice that morning prior to the delivery time, and phoned it, again, at 14:56pm, an hour after the missed delivery and, again, at 15.04 hours.
8 On 19 August, there were seven calls between your phone and Mr Dahn’s phone, albeit that three calls did not register as having any duration. There were also eighteen calls between the phone of yourself and Mr Teah this day.
9 On 20 August, the day before the delivery was ultimately effected, there were thirty-one contacts between your phone and Mr Teah’s phone, although two of these did not register as having any duration. A call from TNT to Mr Teah at 14.35 hours, reminding him to pay the $120.59 redirection fee was closely followed at 14.37 hours by a call from Mr Teah to you. This was followed up by an attempted call from Mr Teah to you at 14.38 hours, which did not register any duration. Then, at 14.40 hours, Mr Teah’s phone sent a text message to your phone stating “Pls call ur boy don ..to call me asap..we need to pay..for the post..just got a call from them.”
10 On 21 August, after Mr Dahn took possession of the consignment from TNT, the telephone records show that at 11.04 hours, his phone telephoned your phone. The recorded duration of the call is 17 seconds. Mr Dahn gave evidence that you had spoken to him at this time and directed him to place the package in the garage of your home. Mr Dahn had given evidence that you had given the same instruction to him earlier that day, although telephone records do not show contact between your phone and Mr Dahn’s phone earlier that day. However there is a call at 21.53 hours from Mr Dahn’s phone to your phone the previous evening.
11 You did not give evidence at your trial, as is your right. You did call evidence from a Ms Borbor, who stated that, in accordance with telephone records of your phone (Exhibit “K”), at 10.46.46 hours on 21 August 2015, she had a long conversation with you and, at no stage during that call, did you put her on hold. She stated that she did not like being placed on hold. Exhibit “K” shows the duration of contact between your phone and Ms Borbor’s phone to be 23 minutes and 52 seconds, which would take it beyond the time of 11.04 hours, when Mr Dahn claims that he spoke with you prior to delivering the suitcase to your garage.
12 On the first day of the plea hearing, a considerable amount of time was spent on your behalf by Ms Randazzo of Senior Counsel arguing that, particularly as Mr Dahn was a person criminally concerned in the offending, for which he had received a sentencing discount, the Court should not find that the jury accepted Mr Dahn’s evidence that you actually spoke to him and instructed him to place the suitcase in your garage. Ms Randazzo further submitted that you should not be sentenced on the basis that you knew that the suitcase was to be placed in your garage.
13 It is pertinent to note that the prosecution case against you was a circumstantial case involving several pieces of evidence. The jury was not required to be satisfied beyond reasonable doubt of any one piece of evidence, but to be satisfied of your guilt on the totality of the evidence. The fact of the matter is that the suitcase ended up in your garage after significant telephone contact with each of your co-accused in the days leading up to 21 August 2015. It was discovered by police there at approximately 11.30 hours, half an hour after it had been given to Mr Dahn by TNT. Although you were not home at the time of delivery, yourself and your co-accused, Mr Teah, and another person turned up at your house at 14:00 hours. Moreover, following Mr Dahn’s arrest shortly after he delivered the parcel to your house at 11.20 hours, the records show that your phone endeavoured to contact him on three occasions at 12.20.19 hours, 12.20.32 hours and 12.23 hours. Thereafter, there are 10 telephone calls between your phone and Mr Teah’s phone, with the last one having been made at 13.35 hours, some 25 minutes before you, Mr Teah and another person arrived at your home address.
14 Given all of this circumstantial evidence, I consider that it was reasonable for a jury to infer that you did have knowledge that the package was to be delivered to your house, otherwise they would not have found you guilty of the charge of attempted possession. In my view, in order to reach such a conclusion, they did not have to be satisfied that Mr Dahn actually spoke to you at 11.04 hours, shortly after taking possession of the suitcase, or even earlier that day.
15 On 21 August 2015, you were arrested by police and participated in a Record of Interview. As is your legal entitlement, you largely answered “No comment” to allegations about this offence. However, you admitted that 1 Barmera Way, Truganina, was your address and also admitted your mobile telephone number, which was the subject of telephone record evidence at your trial. You admitted that Wilson Dahn was your nephew and that you knew Sam Teah, but stated that they did not visit you often at Barmera Way. This was contrary to evidence from Mr Dahn and also evidence from a person who was a resident at your house, Ms Cooper. Ms Cooper stated that Wilson Dahn and Sam Teah were over at your house very often. They were your friends.[3] You also told police you had no knowledge, whatsoever, of the package sent from Hong Kong addressed to Paul Sambo of 12 Beaufort Street, Somerset, Tasmania, and knew nothing about it being taken to your garage or the fact that it had contained methamphetamine.
[3]T355 of the trial
16 Consistent with the evidence which was put before the jury, I find that Mr Teah had the role of liaising with TNT in order to ensure the delivery of the package to the address at Margaret Street, Werribee, after the package had arrived in Australia. Mr Dahn’s involvement was to take delivery of that package at the Margaret Street address and to then deliver it to your garage. On the basis of the evidence put before the jury, although you had no direct involvement with TNT, it is apparent from the telephone records that you and Mr Teah were in very regular communication with each other from 14 August. That is the date upon which there was communication between Mr Teah (posing as Paul Sambo) and TNT about the redirection of the package from Tasmania once it had arrived in Australia. The frequency of the telephone contacts between yourself and Mr Teah, particularly at critical times after Mr Teah had been in contact with TNT about the package, and the continued contact between yourself and Mr Teah, even after Mr Dahn had been arrested on 21 August 2015, lead to the only reasonable inference, namely, that yourself and Mr Teah were, at least, equally involved with arranging to take possession of this package.
17 It is pertinent to note that, although Mr Teah liaised with TNT concerning the package, Ms Randazzo conceded that there was “a very compelling piece of circumstantial evidence”[4] by way of a text message from Mr Teah to you asking that you arrange payment for TNT to redirect the consignment from the Tasmanian address back to Melbourne. Your conduct in keeping your distance from having any contact with the freight company negotiations and also from the actual delivery of the consignment, but apparently having the role of ensuring payment of TNT’s redirection fees, is consistent with a higher organisational role than Mr Teah. However, I find that I cannot be satisfied that that was so beyond reasonable doubt.
[4]Plea transcript 17 May 2018, page 29
18 I agree with the submission by the prosecutor, Mr Shaw, that, given your heavy involvement with Mr Teah and, at critical times, with Mr Dahn, in the lead-up to the delivery of the package to the Margaret Street address on 21 August, it makes no sense that Mr Dahn or Mr Teah would decide to have the package delivered to your house without you knowing about it. There was evidence that Mr Teah had driven past your house in his car shortly after police had arrived there and found the package. About 2½ hours later, you turned up at your house with Mr Teah. Whether you wanted it in your garage or not, the fact is that that was where it was put and that was where it was found by police, and the jury found you guilty of the charge of possession. In all of the circumstances, I consider it proven beyond reasonable doubt that yourself and Mr Teah were equally involved with the arrangement to take possession of the illegally imported methamphetamine, with Mr Dahn having a lesser role, being that of accepting the delivery from TNT and, further, transporting the package to your garage.
19 In accordance with his lesser role and also having received discounts for the earliest possible plea of guilty, and a further discount for undertaking to cooperate in the prosecution of yourself and Mr Teah, on 15 April 2016, Mr Dahn was convicted and sentenced to a term of imprisonment of 34 months, to be released after serving 20 months upon a recognisance release order upon giving security in the sum of $10,000 to be of good behaviour for a period of 14 months.[5]
[5]Sentence of her Honour Judge Morrish, [2016] VCC 430
20 On 23 February 2018, Mr Teah was sentenced, after having entered a plea of guilty on 28 August 2017, the date upon which the trial of Mr Teah and yourself was listed to begin. Although Mr Teah’s plea of guilty was a late plea, he still received a reduction in sentence for it. He was convicted and sentenced to six and a half years’ imprisonment with a non-parole period of three years and ten months. A declaration pursuant to s6AAA of the Sentencing Act (Victoria) was made to the effect that, had it not been for his plea of guilty, the sentence imposed would have been eight years and eight months’ imprisonment with a non-parole period of five years and six months.[6] The principle of parity, requires that like offending should attract a like sentence. Thus, the section 6AAA declaration, in Mr Teah’s case is a relevant consideration in determining the sentence to be imposed upon you, subject to any mitigating factors personal to you.
[6]Sentence of Her Honour Judge Cohen [2018] VCC 153
21 I do note that Mr Teah had some criminal history, whereas you have none, although the sentencing judge noted that the only prior matters off significance were on 4 July 2014. Those were two charges of obtaining a financial advantage from the Commonwealth for which he was sentenced in the Sunshine Magistrates’ Court to a six month Community Correction Order, which he successfully completed. Mr Teah had a good work history and a number of impressive character references, including two from employers, a pastor and the past president of the Liberian Football Association. The sentencing judge took into account onerous remand conditions of lockdown following the prioson riots in 2015. Her Honour found Mr Teah’s prospects of rehabilitation to be very good. However, unlike Mr Teah you did not plead guilty. Hence, you are not eligible for any reduction in sentence. You took every conceivable point that could be taken by way of pre-trial argument, ran the trial and, at the plea hearing, continued to try to diminish your involvement by submissions made on your behalf.
22 Following your offending on 21 August 2015, you were arrested and remanded in custody, but bailed on 22 September 2015. It is an aggravating feature of the second occasion of offending of attempting to possess an illegally imported border controlled drug in a commercial quantity that it was committed on 1 December 2015 whilst you were still on bail for the first offence.
23 In relation to this second offence, you had two co-accused, Raheem Kromah and Augustus Robinson, both of whom pleaded guilty and have already been sentenced. A third person who was alleged to be a co-accused, David Singbeh, was acquitted of the charge after a jury trial.
24 In a Record of Interview on 1 December 2015, you denied any knowledge of the offending and also gave answers of “no comment”. The latter is your right. Following that interview you were released without charge. Further investigations were undertaken and you were again arrested and interviewed on 17 February 2016. That record of interview consisted primarily of “no comment” answers, as is your right. On that day, you were charged and again remanded in custody, where you have remained until the present time.
25 You maintained a position of pleading not guilty to the charge of attempting to possess a commercial quantity of a border controlled drug and a contested committal hearing was held and the matter was listed for trial on 2 July 2018. You ultimately entered a plea of guilty to this charge on 17 May 2018. As previously mentioned, this was the date upon which your earlier offending of which the jury had found you guilty had been set down for a plea hearing.
26 The role played by you in relation to the charge of attempting to possess methamphetamine in a commercial quantity is set out in the Prosecution Opening for Plea. That summary is appended to these sentencing remarks (Appendix B).
27 On 16 November 2015, a consignment of eight boxes, each of which contained a statue of a horse, arrived in Australia from China addressed to Ismail Muhaidat at 153 Graham Street, Broadmeadows. The consignment was intercepted by Federal authorities, who located 10.941 kilograms of a crystalline substance. On testing, the substance was found to comprise 8.634 kilograms of pure methamphetamine. This is many times in excess of a commercial quantity, which is 750 grams.[7] It is agreed by the prosecution and defence that these drugs had a wholesale value of $80,000 per kilogram as a mixture, making a total potential value of $875,820 if the mixture had been sold in one kilogram lots.[8]
[7]Item 117, Schedule 4, Criminal Code Regulations 2002
[8]Transcript of plea hearing, 29 August 2018, page 132
28 Enquiries by Federal authorities revealed that the consignee no longer lived at the stipulated address and the contact telephone number had never been used by him. Other paperwork relating to the consignment contained a different contact telephone number ending in 956, and Australian Federal Police obtained a warrant to intercept calls to and from that number. Your co-accused, Augustus Robinson, was using that mobile telephone number to contact the shipping company. He was purporting to be the consignee, “Ismail”, in order to make arrangements to collect the consignment.
29 On 23 November 2015, Mr Robinson attended the Bank of Queensland branch in Werribee and paid freight clearance costs of $4,761.87. CCTV footage from the bank showed you to be in the company of Mr Robinson when the payment was made.[9]
[9]Exhibit B on the Plea hearing, 29 August 2018
30 Federal authorities deconstructed the consignment and replaced the drugs with inert substances. They then monitored arrangements for collection of the consignment. The previously mentioned David Singbeh was a courier driver who worked with Amalgamated Distribution and Taxi Trucks. He collected the consignment from AirWave Australia, Tullamarine, on 1 December 2015. In your first record of interview, you claimed not to know the name of David Singbeh. However, there appears to be no dispute that this same person was known to you as “Duoo” and his mobile phone number was recorded under that name in the list of contacts in your mobile phone. Like yourself, he came from Liberia and, in your second Record of Interview on 17 February 2016, you stated that you had known him for 7 years as at the day of the offending.
31 Telephone records show that at 11.10 hours there was contact between your phone and Mr Singbeh’s phone for 63 seconds and again at 11.24 hours for 17 seconds and again at 11.25 hours for 30 seconds. At 11.45 hours there was contact between the phone of your co-accused, Mr Robinson and Mr Singbeh’s phone for 6 seconds. Then, at 11.11.49 hours there was further contact between your phone and Mr Singbeh’s phone for 71 seconds. At 11.53 hours Mr Singbeh contacted his employer. Then, at 13.59 hours Federal Police intercepted a telephone call from your co-accused, Mr Robinson, to Mr Singbeh.
32 Mr Singbeh collected the consignment at approximately 14.27 hours and placed it in a white van, which Federal authorities kept under surveillance. Over a period of almost two and a half hours, the van took a very circuitous route, with multiple stops along the way, in order to travel 10 kilometres. During this time, Mr Robinson was calling Mr Singbeh on the 956 mobile phone number, directing him to drive to various locations and, then to stop for a time and, then, drive to another location.
33 The van driven by Mr Singbeh ultimately pulled into the Furlong Road shopping strip in Sunshine. Federal police, who were conducting surveillance, noticed a Nissan Dualis vehicle, which your co-accused, Raheem Kromah, was driving. You were in the front passenger seat. This vehicle followed the van down various side streets and performed U-turns, as though conducting counter surveillance. In your Record of Interview on 1 December 2015 you admitted that the Nissan belonged to your friend, Ms Borbor[10] (to whom I previously referred as having given evidence on your behalf at your trial).
[10]Question 376 and answer on the Record of Interview December 2015
34 CCTV footage from the retail stores along the Furlong Road shopping strip show your co-accused, Mr Robinson, walking along that strip and approaching the Nissan vehicle and speaking to you.
35 During the plea hearing, the prosecution conceded that it was not able to prove one matter that was initially alleged in the opening, namely, that, at one point, while Mr Singbeh was stilling driving the van with the consignment on board, you had briefly spoken with Mr Singbeh via the 956 phone being used by Mr Robinson.[11]
[11]Transcript of plea hearing, 29 August 2018, page 153
36 Police arrested yourself and Mr Kromah. An analysis of your phone showed frequent telephone calls to your co-accused, Mr Robinson, during the day and, in particular, during the almost two and a half hours that the white van driven by Mr Singbeh was under surveillance. The evidence is that Mr Robinson would telephone Mr Singbeh using the 956 number and give him directions as to where he should drive. Mr Robinson would then ring you on a different phone and tell you where the van was likely to travel. Analysis of your phone location services data revealed a correlation between the location of your phone and the movements of the white van driven by Mr Singbeh. Thus, although surveillance officers only saw you in the Nissan vehicle towards the end of the 2 and a half hours after the consignment had been collected, the data on your phone shows you to have been in the vicinity of the van from around the time that Mr Singbeh collected the consignment at Tullamarine.
37 The prosecution also relied upon evidence that your co-accused, Mr Robinson, had made an effort to arrange for a delivery driver from a business called “Little Green Trucks” at approximately 13.00 hours on 1 December 2015. Shortly before that time, namely at 12.58 hours, your phone is shown to have Googled “pickup and delivery driver contact”, and the first company in the results was the company “Little Green Trucks”. There was also evidence that you had undertaken a Google search on your phone to find a branch of the Bank of Queensland in Werribee on 23 November 2015, which was the date upon which you accompanied Mr Robinson in order to pay the freight charges relating to the consignment.
38 The prosecution submitted that, in the light of the evidence to which I have just referred, your role in this offending was somewhere between the most serious role of Mr Robinson and the least serious role of Mr Kromah, who was driving the Nissan vehicle conducting counter-surveillance.
39 In response to this submission, your counsel, Mr Willee, submitted that there was an insufficient basis to infer that your role was higher than that of Mr Kromah. He conceded that possibly it might be said that you were on the same level as Mr Kromah, but certainly not above him.[12] In particular, Mr Willee took issue that you were involved in conducting any counter-surveillance on 1 December 2015. He stated that all you were doing was just holding a phone, which was on loud-speaker, so that Mr Robinson’s instructions to Mr Kromah about where to drive could be heard by him, and it was Mr Robinson, not you, directing Mr Kromah. He asserted that you had understood that the principal offender, Mr Robinson, was going to pay Mr Kromah and you thought that you would be paid something by Mr Kromah. He submitted orally and in written submissions that “to sentence [you] on the basis that [your] role was somewhere in between the principal offender and Kromah, would be to sentence [you] as someone other than [yourself]”. It was also asserted that you were “with Kromah when he borrowed your phone to make the internet search for ‘Little Green Trucks’ and, also, the ‘Bank of Queensland’.”[13]
[12]Transcript of plea hearing on 30 August 2019, page 299
[13]Paragraph 3 of defence outline of submissions as amended on 30 August 2018
40 There is no evidence before me that you expected to be paid anything by Mr Kromah, or that Mr Kromah was present with you and it was Mr Kromah who had made a Google search on your phone as to the whereabouts of the Bank of Queensland, which you had attended with Mr Robinson on 23 November 2015. Nor is there any evidence that he, rather than you, made the Google search for delivery drivers on your phone on 1 December 2015, resulting in a list of businesses of which the first was “Little Green Trucks”. Indeed, I note that in your record of interview on 1 December 2015, you initially denied having any knowledge of a company, Little Green Trucks, stating that you had never heard of them and did not know what sort of business they were.[14] When it was drawn to your attention that your phone showed that a Google search had been made on your phone and the company, Little Green Trucks, had come up, you stated that you were looking for work as a courier driver and had not specifically looked for Little Green Trucks, and noted that there were a whole lot of different courier companies that had come up on your phone, but you did not ring any of them.[15] At no stage in your Record of Interview did you indicate that you had given your phone to anyone else to make that search.
[14]Questions and answers 615-619
[15]Record of interview, questions and answers 619-642
41 In my view, there is compelling evidence that satisfies me beyond reasonable doubt that your role was above that of Mr Kromah, who has been sentenced as the driver of the Nissan vehicle conducting counter-surveillance.
1) There is evidence by way of CCTV footage from the Bank of Queensland showing that you attended there on 23 November 2015, one week before the offence, in company with Mr Robinson, who paid almost $5,000 in freight charges relating to the consignment. Three still images from this footage show you sitting in the bank whilst Mr Robinson makes the payment.[16]
[16]Exhibit “B” on the plea hearing, 29 August 2018
2) An analysis of your phone by Doron Akerstein, senior digital forensic examiner with Australian Federal Police, revealed that on your phone there had been a search conducted for the Bank of Queensland prior to your attending there with Mr Robinson on 23 November 2015. According to page 38 of the report appended to Doron Akerstein’s statement made on 26 October 2017,[17] Google searches for branches of the Bank of Queensland in Victoria were made on your phone on 21 November 2015, between 10.46am and 12.14pm, and again on 23 November 2015, between 9.51am and 9.53am. The last search relates specifically to the Bank of Queensland at Werribee, the branch at which CCTV footage shows you and Mr Robinson to have attended.
[17]Exhibit “D” on the plea hearing, 30 August 2018
3) There is evidence that you were acquainted with Mr Singbeh, who was the driver of the van who picked up the consignment from Tullamarine. You admitted in your record of interview that Mr Singbeh’s mobile telephone number was recorded in the list of contacts in your mobile phone under the name “Duoo”. You claimed not to know the name “David Singbeh”, even though you had known Duoo for “maybe seven years”.[18] Although you claimed not to recall when you had last spoken with him, Doron Akerstein’s statement and attached report shows Facebook Messenger chat details between yourself and Mr Singbeh from 5 October 2015 to 29 November 2015.[19]
[18]Record of interview on 1 December 2015, Questions and Answers 479-493
[19]Pages 9 and 10 of Doron Akerstein’s report (Exhibit “D”)
4) There is a significant number of phone contacts between your mobile phone and that of Mr Robinson during the critical period of time on the day of the offending, 1 December 2015. Shortly after Mr Singbeh collected the freight in Tullamarine at 2.27pm, there is contact between yourself and Mr Robinson at 2.32pm. Between then and 4.52pm, records show that there were 43 contacts between Mr Robinson’s mobile phone and your mobile phone (that number, disregards some nine attempts at communication between the phones where no contact was established).[20] The last contact between the phones was very shortly before you were arrested at 4.53pm that day. Whilst your counsel has submitted that the content of these calls is unknown, they happen to be in the very period during which Mr Singbeh is being directed by Mr Robinson to drive in a circuitous route after picking up the consignment. Further, the GPS analysis of your phone shows that phone to have been in locations which correlate with the locations of the phone and movements of Mr Singbeh, who was driving the van holding the consignment.[21]
[20]Exhibit “J” on the plea hearing, 30 August 2018
[21]Exhibit “D” tendered at the plea hearing on 30 August 2018
5) Towards the end of the period before you were arrested, CCTV footage from some of the retail stores in Furlong Road shopping strip shows Mr Robinson walking along that strip and approaching the Nissan vehicle and speaking to you. There are also some 15 still images which have been taken from that footage which were also tendered at the plea hearing.[22]
6) At 11.07am, an AirWave Australia employee telephoned Mr Robinson (“Ishmail”) to advise that the consignment was ready for collection and storage charges would apply if it was not picked up today and the freight depot would close at 3.00pm.[23] There is evidence that, two minutes later, Mr Robinson called your phone and, one minute after that, you telephoned Mr Singbeh. Fourteen minutes later, records show that Mr Singbeh telephoned you. Then, a minute later, you rang Mr Singbeh. Twenty minutes after that, Mr Robinson’s phone makes six seconds of contact with your phone, but it is unclear whether there was, in fact, a connection. Then, at 11.49am, your phone rings Mr Singbeh.[24] There is evidence that Mr Singbeh was at work in his employment at Amalgamated Distribution and Taxi Trucks, of which the fleet controller is Mr Simon Higgins. Mr Higgins told police that, at 11.53am, he received a call from Mr Singbeh stating that his mother had been rushed to Sunshine Hospital. Mr Higgins asked him to complete deliveries before he left to go and see her. At 12.47pm, he noted that Mr Singbeh had completed his deliveries and sent him a message to “go”.[25] A Google search for a delivery driver had been made on your phone at 12.58pm. Fourteen minutes later, police intercepted a phone call made to Mr Robinson’s phone from David from Little Green Trucks, who was returning calls that he had missed earlier. Mr Robinson, posing as “Ishmail”, tries to urge the caller to collect eight boxes (the same number as in this consignment), but as the pick-up location is out of the caller’s region, Mr Robinson considers the quote too high and, in any event, the caller is not available to do it that day. This seems to me to be evidence upon which a Court could be satisfied that you have played a role in securing the services of Mr Singbeh to be the driver on 1 December 2015.
7) The Nissan vehicle driven by Mr Kromah, in which you were a passenger, was owned by Ms Borbor[26] whom you described in your Record of Interview as being a girlfriend, albeit just a friend. You stated that you had been at her house earlier that day. Thus, there appears to be some connection between yourself and the vehicle provided for conducting the counter-surveillance.
[22]Exhibit “C” on the plea hearing, 30 August 2018
[23]Exhibit “C” is a transcript of this call
[24]Exhibit “S” on the plea hearing, 30 August 2018
[25]Exhibit “H” on the plea hearing, 30 August 2018
[26] Question and answer 376 in the Record of Interview 1 December 2015
42 In my view, there is ample evidence to conclude beyond reasonable doubt that your role was more than simply sitting, for some reason which was never explained by you, in the Nissan vehicle holding your phone on speaker mode so that Mr Robinson could convey directions to Mr Kromah as to where to drive in order to follow the van driven by Mr Singbeh. Whether or not you were listening to Mr Robinson’s directions and conveying them orally to Mr Kromah, or whether you had your phone on speaker mode, as asserted on your behalf, I cannot determine. It seems to me to make no difference. The fact of the matter is that you were the conduit for Mr Robinson’s directions to Mr Kromah for the purposes of conducting counter-surveillance and I am satisfied beyond reasonable doubt that that was the reason that you were in the vehicle with Mr Kromah on 1 December 2015.
43 Your role was more than facilitating the counter-surveillance. You clearly had a prior association with Mr Robinson, as demonstrated by your attendance with him at the Bank of Queensland one week earlier, after you had Googled information about branches of the Bank of Queensland, and your association with Mr Singbeh enabled you to get his assistance to pick up the consignment, which was clearly a vital role. Although there is no evidence about what financial remuneration you were to receive, I find that these factors place you higher in the hierarchy of offending than Mr Kromah. I also note that he was only 19 years old at the time of offending, a decade younger than yourself. It is plain that the judge who sentenced Mr Kromah took into account that he was a youthful offender, who, in spite of dislocated background, had good prospects of rehabilitation and also that he entered an early plea of guilty.[27] In all the circumstances, I consider that the sentence to be imposed in your case should be greater than that imposed on Mr Kromah.
[27] Sentencing remarks of His Honour Judge Dean, 21 December 2017 [2017] VCC 2014
44 Mr Robinson was sentenced as having played a trusted managerial role in receiving the drugs into Australia. The Court also took into account a further offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug committed by him on 8 November 2015, which involved 2 kilograms pure methamphetamine. He had 2 prior court appearances for obtaining a financial advantage from the Commonwealth, and aggravated burglary. He pleaded guilty to the commercial quantity offence shortly prior to trial listed on 27 October 2017. He had a background of disadvantage like you, having fled civil war and spent time in a refugee camp before arriving in Australia. He had a sporadic work history. Unlike you, he had psychological evidence tendered before the court to the effect that his traumatic developmental years had lead to anxiety and depression which, in turn, had lead to an alcohol abuse disorder and drug abuse. He was medicated and required ongoing treatment and counselling for those conditions. Like yourself, he did not cooperate with investigating authorities. The sentencing judge considered that his prospects of rehabilitation must be approached with caution.[28]
[28] Ibid
45 As previously mentioned, in November 2017, yourself, Mr Robinson, Mr Kromah and Mr Singbeh were all co-accused in a trial listed to commence in the County Court. In the days leading up to the trial date, Mr Robinson pleaded guilty. At the pre-trial stage, you indicated that you were going to contest the charge and were granted a separate trial. At the end of the first week of pre-trial argument, your co-accused, Mr Kromah, pleaded guilty. Also previously mentioned, Mr Singbeh conducted a trial and was acquitted.
46 On 27 November 2017, Mr Kromah had a plea hearing and, on 18 December 2017, Mr Robinson had a plea hearing. Both matters were heard in the County Court by His Honour Judge Dean, who sentenced both offenders on 21 December 2017. Mr Kromah was sentenced to seven years and three months’ imprisonment with a non-parole period of three years and nine months. Mr Robinson was sentenced to 11 years’ imprisonment with a non-parole period of eight years.
47 As previously mentioned, Ms Randazzo of Senior Counsel had appeared for you in the trial in which the jury found you guilty of attempting to possess a marketable quantity of a border controlled drug. On 17 May 2018, Ms Randazzo addressed me on the issue of factual findings consistent with the jury verdict. I have previously referred to my findings in this regard. The matter was then adjourned part-heard to 1 June on the understanding that Mr Willee, who had been briefed to appear for you in the trial on the charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, would take over the plea. Accordingly, the matter was adjourned to 1 June 2018, so that Mr Willee could make submissions in relation to the circumstances of the second offence, along with any mitigatory material concerning your background and personal circumstances.
48 When the matter came before me on 1 June 2018, a psychological report, dated 31 May 2018, from Ms Alison Mynard was sought to be relied upon by you and tendered as Exhibit “1”. This was the subject of many paragraphs in the defence outline of submissions prepared by Mr Willee dated 1 June 2018. Amongst other things, Ms Mynard relied upon your history that you had suffered a significant head injury in a car accident which apparently occurred in October 2014, and she diagnosed you as suffering from Post-Traumatic Stress Disorder and a possible Acquired Brain Injury that may have contributed to your offending, such that your counsel proposed to submit that all of the principles in R v Verdins[29] were to be relied upon.
[29][2007] VSCA 102
49 The court had been told by Ms Randazzo on 17 May 2018 that you had been involved in a serious motor vehicle accident and there was no doubt that you had been in hospital for a week and had been an inpatient and had treatment, but her instructors were having difficulty locating any medical or hospital records. This remained the case on 1 June 2018, where Mr Willee relied upon you having told Ms Mynard that you had significant scarring because you had hit your head on a windscreen, smashing it, and immediately after the accident had no recall of what had happened and were running around disoriented and confused, according to what others had told you. You gave a history that you were in hospital for a week and the glass could not be fully removed from your head, and you still have tiny pieces of glass occasionally coming out of your skin, that you had been “on” an MRI machine and that your forehead had taken a long time to heal from having your skin so damaged and scarred.
50 Given that Ms Mynard had relied upon this history in determining that you suffered a possible Acquired Brain Injury such that she recommended neurological assessment, and that the prosecution wished to cross-examine Ms Mynard upon her report, which was being relied upon to enliven all of the principles in Verdins’ case, the matter was further adjourned to 6 June 2018. On that date, Ms Mynard was available in order for the prosecution to cross-examine her. However, there was still no record of your alleged one week inpatient hospital treatment following the motor vehicle accident in October 2014 said to be responsible for a serious head injury. All that had been provided were general practitioner’s records which noted that, on Sunday 19 October 2014, you presented with a history of an accident a week ago and that there had been no red flags afterwards.
51 The history taken by the general practitioner was that you were taken to hospital, observed for a few hours, and received stitches in the forehead and were advised to take them out after a week. There were about 10 stitches and they were all removed. There was no sign of infection. He said you were not ready for work and needed a medical certificate. You were seen again on 21 October and you still had superficial pain on the forehead, but were generally well, and did not have dizziness or eye issues and no vomiting. You were given another medical certificate.
52 On 22 October 2014, you were seen, again, by your general practitioner and it was noted that you were well and alert, and your wounds had healed well. There were no abnormal findings. You were recorded as saying that you were fine. On 27 October 2014, you presented again, stating that you could not go to work. It was noted that you had a bit of a headache. Your doctor recorded that there were no red flags, that you had superficial forehead pain, and said that you were fine now. These clinical notes from Westgate Medical Centre were ultimately tendered on the plea as Exhibit “4”.
53 Unfortunately, notwithstanding that your counsel, Mr Willee, had filed plea submissions dated 1 June 2018, it was not until 6 June 2018 that it became apparent that, on your behalf, issue was being taken with a number of matters set out in the Prosecution Opening which had been filed and served on 23 May 2018. Accordingly, Ms Mynard was not cross-examined on 6 June 2018 and the matter was further adjourned for a contested plea hearing on 29 August 2018.
54 By the adjourned date, Mr Willee had filed a defence response dated 22 June 2018 to the plea opening. By 29 August 2018, a number of issues had been resolved between the prosecution and defence. Firstly, records from the Emergency Department of the Royal Melbourne Hospital dated 10 October 2014 had been obtained. These reveal that you attended there are 6.47am. The history recorded was “high speed motor vehicle accident into a parked truck, likely asleep at wheel”. You were described as having struck the windscreen with your forehead and having a 4 centimetre laceration above your right eyebrow. You were moving all four limbs and spine okay, without pain or distraction. No other injury was identified. The impression was recorded as “likely minor traumatic injuries”. The diagnosis was an open wound of the head. There is a triage complaint noted that you had nil recall of the incident and you were initially recorded as having a Glasgow Coma Score of 14. By 9.54am, your Glasgow Coma Score was noted to be 15, that is, fully alert. You were observed for a number of hours and discharged at 2.26pm on the same day. Contrary to your instructions, you were not hospitalised for one week.
55 In the light of this hospital record, which did not establish a major head injury, the report of Ms Mynard, which had earlier been tendered as Exhibit “1”, was withdrawn. The Royal Melbourne Hospital Emergency record was, instead, tendered as Exhibit “1”. Mr Willee amended his written submissions to withdraw those paragraphs relating to a major head injury and reliance upon the principles in Verdins’ case.
56 Mr Nipoe, I want to make it plain that I in no way use against you the criticisms that I made of your counsel, Mr Willee, in relation to what I regard as a disorganised presentation of a plea on your behalf, which, at times, was accompanied by discourteous conduct by Mr Willee. However, as was the case with Ms Randazzo, you clearly gave instructions to contest a number of matters relied upon by the prosecution as to the extent of your role. One submission made on your behalf by Mr Willee was successful. The prosecution conceded that it could not prove what had originally been alleged in paragraph 19 of its opening, namely, that on 1 December 2015, you, personally, had spoken to Mr Singbeh on Mr Robinson’s “956” phone, which included inquiring of Mr Singbeh as to whether he was looking around, as alleged in paragraph 25. However, I have found the large majority of submissions made on your instructions endeavouring to minimise your role to be without merit. I consider that this is an indication that you do not accept full responsibility for the criminal conduct to which you have pleaded guilty.
57 In a letter to the Court from yourself, tendered as Exhibit “2” on the plea hearing on 30 August 2018, you state “I am writing to express my deepest apology on the charge of accessory (my emphasis) to attempt to possess an unlawful substance”. You are not charged with being accessory to attempt to possess an unlawful substance. You have pleaded guilty to the actual charge of attempting to possess an unlawfully imported border controlled drug in a commercial quantity, which comes with a maximum penalty of life imprisonment. Although you do apologise for being involved with this offending and say that you are deeply remorseful for harm caused to society, you blame your offending on having become involved with “the wrong friends”. I find it very difficult to find that you have any remorse given the way that you have attempted to minimise your involvement in both the matter in which Ms Randazzo appeared for you and the matter in which Mr Willee appeared for you.
58 You are said to be a hard-working person and your partner, Ms Baby-girl Torr, states in a letter to the Court (Exhibit “3”) that you are a decent and trustworthy person, who is well regarded in the Liberian community. She states “Sewhy will never do anything that will jeopardise his future or that of his children”. Yet, it is plain that, after being arrested on the charge of attempted possession of a marketable quantity of an unlawfully imported border controlled drug and actually spending 33 days in custody, you reoffended in even a more serious way in committing the offence of attempting to possess a commercial quantity of an unlawfully imported border controlled drug whilst on bail for the first offence. This is clearly an aggravating factor and does not sit well with remorse or thinking carefully about conduct that might jeopardise your future or that of your children.
59 You are presently aged 31 years, having been born on 25 May 1987. In sentencing you, I take into account that you have had a traumatic and disadvantaged background before coming to Australia at the age of 17 years in April 2005. You were born in Liberia and, at the age of three, you and your family had to flee your country of birth to the Ivory Coast. Subsequently, at the age of eleven, you had to flee from the Ivory Coast in an atmosphere of fear and violence in which many people were killed. You arrived in a refugee camp in Guinea, where you spent a number of years in circumstances of privation. You apparently lost your older brother. He had been an important guiding force in your life as you did not have your father with you and, indeed, have no memory of him. Your natural mother had died in childbirth, and you were in the company of your stepmother, who apparently treated you very differently from her own biological children.
60 I accept that the trauma that you endured for many years prior to arriving in Australia in 2005 is something which can be enduring and have an adverse effect on you psychologically. However, there are many people who come to this country from traumatic, war‑torn, refugee backgrounds and still manage to make an enormous contribution to the country, rather than engaging in serious crimes like the ones for which I must sentence you, which I can only presume were committed for greed.
61 Your counsel has stated that, up until you had the motor vehicle accident in October 2014, you were a hardworking person. You attended TAFE and completed Year 11 and 12 and, thereafter, undertook some unskilled jobs before commencing a spray-painting apprenticeship, which you did not complete. It seems that, after leaving the employer to whom you were apprenticed, you were then employed as a spray-painter with Action Alliance for some five or six years, but this employment apparently came to an end shortly after your motor vehicle accident. Initially it had been suggested that this was because of your serious injuries incurred in the motor vehicle accident. However, later, it seemed to be submitted by Mr Willee that you had returned to the employment, but there was some sort of distrust by your employer or fellow workers about you having been involved in a car accident or possible racism. In any event, it seems that you have not worked since late 2014. There is no material before me which presents any reason why you should not have worked after the couple of weeks of certificates supplied by your general practitioner following the motor vehicle accident. However, I do take into account that your involvement in the collision would have been confronting and perhaps taken some time from which to recover psychologically. Apart from this, I found unhelpful the submission by Mr Willee that I should take judicial notice that many African people are discriminated against and this would explain why you found it difficult to obtain employment.
62 Unhappily, I do not regard you as a reliable historian. You told police a number of lies in your record of interview, and you appear to have exaggerated the extent of the injuries in the motor vehicle accident. However, I do not use these matters against you. I do not regard them as aggravating factors which should, in any way, impact upon the sentence imposed upon you. Obviously you cannot be given any credit for cooperating with law enforcement authorities, although you must receive credit for the fact that you ultimately did plead guilty to the commercial quantity offence.
63 Your partner states that you are hardworking. Your counsel stated that whilst working as a spray painter, you often worked at other jobs in a carwash or as a factory cleaner. However, no character references from any independent person, whether it be a former employer or fellow worker or member of the community, were tendered on your behalf. This is in stark contrast to the glowing references which were tendered on Mr Kromah’s behalf, which were relied upon by the sentencing judge as indicating very good prospects of rehabilitation.
64 I find it difficult to assess your prospects of rehabilitation. Even though you come before the court with no prior convictions, former good character has a lesser role to play in the sentencing process for offences of this seriousness. However, given that you do have no prior offending, it is more likely than not that you were engaged in work up until the car accident in October 2014. It seems to be in the context of you being out of work that you turned to this serious criminal offending.
65 I do take into account that you have pleaded guilty to the charge of attempting to possess a commercial quantity of an unlawfully imported border controlled drug. As previously mentioned, this plea was entered on 17 May 2018, after you had been found guilty at trial of the offence of attempting to possess a marketable quantity of an unlawfully imported border controlled drug.
66 I accept the submissions of Mr Willee that, although it is a late plea, given that you were to stand trial for that matter on 2 July 2018, there appears to have been late service by the prosecution of some materials on you or your legal representatives. It would seem that the CCTV footage in relation to the Bank of Queensland and in Furlong Street, Sunshine, was not served upon your legal representatives until 27 October 2017, the date upon which your trial was severed from your co‑offender’s. This material was apparently in the jury book for Mr Singbeh’s trial.
67 It appears that, even after this date, there may have been some material which did not reach Mr Willee until March or April of this year. I found it very difficult to ascertain with any real clarity the nature of this material from your counsel, but possibly the material comprised extra photographs. I was left with a lack of certainty about whether these were still photographs taken from the CCTV footage or an enlargement of such still photographs, such as your jacket which was worn on the occasion that you attended the Bank of Queensland with Mr Robinson on 23 November 2015. Nor was it clear when it was that Mr Willee was stating that he became aware of the statement of additional evidence from Doron Akerstein made on 26 October 2017 (Exhibit D) involving the analysis of your mobile phone calls and messages, GPS location data, and Google searches. The prosecution stated that this had been provided on 27 October 2017.[30]
[30] Transcript of plea hearing on 29 August 2018 136–147
68 At the end of the day, I acknowledge that the implications of a considerable amount of circumstantial evidence, particularly data relating to phone records and the like, are not always readily apparent until counsel has had time to examine them. However, it seems that, at the very latest, by April this year all of the material had been served and was available to Mr Willee. He seemed to indicate that there was some difficulty obtaining instructions from you.[31]
[31] T 148
69 I note that the trial in which Ms Randazzo appeared for you was not listed until 23 April 2018, on which day pre-trial issues were ventilated.
70 It seems that you should have been aware by 27 October 2018 that there was CCTV footage in the Bank of Queensland on 23 November 2015, and on Furlong Road, Sunshine, on the day of the offence. It is difficult to understand, given that you knew what you had been doing at both of those locations, why it took almost another seven months before you entered a plea of guilty and thereby facilitated the course of justice.
71 I do take into account that the delay in pleading guilty is not entirely attributable to you but, as I have said, you are someone whom I assess on the material before me to be loath to accept full responsibility for your criminal offending. Nevertheless, you are certainly entitled to be given credit for the utilitarian value of your plea of guilty. The trial would have been of a couple of weeks’ duration, with multiple pieces of circumstantial evidence, and you have saved the community this cost and inconvenience.
72 As I have said, I find it difficult to accept that your plea is remorseful. However, it is possible that during your fairly lengthy period of time in custody on remand (approximately 2 years and 9 months) you have reflected on your poor decisions, such that your prospects of rehabilitation, now, may be somewhat better than when you first went into custody. For this reason there would appear to be a lesser need for emphasis upon the principle of specific deterrence than was the case prior to that period of time.
73 Mr Willee stated that you have been using your time usefully in prison, working in the kitchen from 8.30 to 2.30 each day. I agreed to accept any information that might be available from the prison in relation to that subsequent to the conclusion of the plea hearing on 30 August 2018.
74 On 15 October 2018 your solicitor forwarded a bundle of file notes from Ravenhall Correctional Centre. In an email dated 5 November 2018 she clarified that it was intended to rely only upon an entry upon page 12, dated 27 May 2018, where you had approached a member of staff seeking information to present in court to show how you had been spending your time whilst at Ravenhall. In addition to that, it was sought to rely upon an entry dated 13 July 2018 by your case manager which states as follows:
“I have emailed Jake in the kitchen for a work report for Nipoe, I received the following. ‘Since he started work again he has attended daily and is enjoying his job of driving meals to the communities, Sehwhy doesn’t have any issues with work that he has expressed and have no issues with all staff. Completes all that is asked of him’. Nipoe feels good about this report and is happy with himself as he puts in effort to perform his duties well and is successfully fulfilling his local plan goals.”
75 I have marked these two entries which were tendered as Exhibit 6.
76 It is to your credit that you have been engaged in useful work whilst in custody. This does bode well for your rehabilitation. However, there have been no certificates tendered that you have been engaged in any rehabilitative program activities at all. Such evidence might have been expected when one has been in custody as long as you have. Programs conducted in prison can be useful in the process of rehabilitation, but there is no evidence that you have embarked upon any. Perhaps you will be minded to do so once you have been sentenced. I was not addressed on this matter.
77 As far as your rehabilitation is concerned, I note that your partner is apparently standing by you, according to the letter which she has written to the court. It has not been sought to argue that there are exceptional circumstances in relation to separation from your family. Unhappily there is sadness and disadvantage which usually impacts upon the families of all people sent to prison for criminal offending. However, I do take into account that it is likely to weigh heavily upon you that you are separated from your son and from Ms Torr’s daughter, to whom you are apparently attached and care for as though she were your own child. Those young children have already had their father absent for nearly 3 years. By reason of your serious offending, they will spend many more of their formative years without you.
On 1 December the Prisoner participated in a DROI with AFP members where amongst other things he said:
·His friend ‘Sam’ was driving the car when they were arrested (157);
·He was going to ask Sam to drive to his (NIPOE’s) girlfriends place (160);
·That day in the morning he spent time with this girlfriend (185);
·He had been looking for a job and driving around with his friend (188- 191);
·He looked for a job on his phone (199);
·He couldn’t remember if he made any phone calls or if anyone rang him that morning (230);
·He was looking for a job delivery driving (236);
·He had left home that morning and travelled to his girlfriends by train (233-240);
·When he got to his girlfriends he just went in and ate (268);
·When they were arrested they were heading down to his (NIPOE’s) girlfriend’s place (360);
·Before they were arrested they had been in the St Albans area (364);
·The car they were in when arrested was his girlfriend’s car (376);
·When he was in the car with Sam he didn’t make any calls (392);
·He had met Sam at the train station (398);
·In relation to Sam he said he knew nothing about him personally and didn’t even know where he lived (432);
·he knew a person as DUOO who was in his IPhone contact list with the phone number 0421478130 ( Singbeh’s phone number)(487- 490);
·He had known DUOO ( Singbeh) for 7 years (493);
·He couldn’t remember the last time he spoke to DUOO (499);
·He saw a missed call from DUOO tried to call him but didn’t get to him (500);
·He hadn’t seen DUOO for a while, so he wouldn’t know what car he drives (518);
·He wasn’t familiar with the name Ismail (520 -p 523);
·He said he didn’t know anything about Airwave Australia and goods being brought into the country (568 – 578);
·When asked about the Google search on his phone having the name “Little Green Trucks” he said it was an enquiry he made because he was looking for work as a delivery driver (619-624);
·When it was suggested that there was a white Ford transit van about 100 metres away (from where the Dualis had pulled over ) he said he didn’t know anything about that (654);
·He said he was never aware that DUOO was travelling behind them (670);
23.In November 2017 a four-headed trial with the Accused Robinson, Nipoe, Kromah and Singbeh was listed to commence in front of Judge Dean. Robinson ended up indicating he would plead guilty in the days leading up to the trial and pleaded guilty on the first day of the trial. In the pre-trial stage (Nipoe) the prisoner was granted a separate trial indicating he was going to contest the charge. Towards the end of the first week of pre-trial argument further evidence came to light that led Kromah to plead guilty. Singbeh conducted a trial and was acquitted.
24.In terms of considerations of parity, the Prosecution regarded Robinson as being the most involved in the organisation of the importation. He was directing the movement of the van on the day and then telephoning Nipoe who was the passenger in the Dualis and instructing Kromah where to drive in order to monitor the van. Kromah could be said to be the least involved in that there was little evidence of his involvement other than as the driver on the day although the new evidence that came to light in relation to his case was a text that he had sent a few weeks before wherein he referred to having a job in December where he was likely to make some money and which appeared to be a reference to imported goods.
25.In terms of hierarchy of roles the Prisoner’s role appeared to be between the role played by Robinson and the role played by Kromah in the sense that he was present with Robinson when the payment was made at the bank on the 23rd of November 2015 and appeared to be the person who knew Singbeh and was able to enlist his assistance as the delivery driver. He would appear to have also been issuing instructions to Kromah, and to have been in direct communication with Robinsonand used Robinson’s phone on one brief occasion to enquire of Singbeh as to whether he was “looking around”.26.Robinson conducted his plea on 18 December 2017 and Kromah conducted his plea on 27 November 2017. They were both sentenced by Judge Dean on 21 December as follows:
Robinson: 11 years with a non – parole period of 8 years
Kromah: 7 years and 3 months with a non-parole period of 3 years and 9 months.
27.The Prisoner’s trial was booked in for two weeks to commence on 2 July 2018. He first indicated an intention to plead guilty in May 2018 and was arraigned and pleaded guilty on 17 May 2018.
Pre Sentence Detention
The Prisoner was released without charge after being interviewed on 1 December 2015. Following further investigations the Prisoner was arrested and remanded in custody on 17 February 2016.
The Prisoner has been in custody since his arrest on 17 February 2016, a total of 835 days as at 1 June 2018.
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