Director of Public Prosecutions v Oji
[2020] VCC 1118
•27 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-00064
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BOND EBERE OJI |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2020 | |
DATE OF SENTENCE: | 27 July 2020 | |
CASE MAY BE CITED AS: | DPP v Oji | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1118 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms K. Breckweg | Solicitor for Public Prosecutions (Cth) |
| For the Accused | Mr P. Dunn QC | GTC Lawyers |
HER HONOUR:
1 Bond Oji, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug contrary to s.307.2(1) of the Criminal Code (Cth). The drug was cocaine. The maximum penalty applicable is 25 years’ imprisonment or 5,000 penalty units or both.
2 This crime arises out of events which took place on 26 October 2019. It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most disturbing, your behaviour obviously unacceptable.
3 I turn to a summary of your offending.
4 On 26 October 2019, you arrived at Melbourne International Airport from India on Air India Airways flight A1308. You presented at the Secondary Examination Area of the airport in possession of various items of luggage and were also in possession of an American passport.
5 You handed your completed Incoming Passenger Card (“IPC Card”) completed in English to ABF officers on which you checked “No” in answer to the question: “Are you bringing into Australia: Goods that may be prohibited or subject to restrictions, such as medicines, steroids, illegal pornography, firearms, weapons or illicit drugs?” You acknowledged that the IPC Card was yours, you had signed it and that you understood all the questions on it.
6 In a brief conversation with ABF, you described your travel plans in Australia as intending to stay for five days to attend the Australian Fitness and Health Expo in Melbourne. During that time you would be staying at the Holiday Inn at Melbourne Airport. This was your fifth trip to Australia. That you lived in the United States and had been out of America since 8 October 2019 travelling to a number of countries including India before flying to Melbourne.
7 You said you had two days layover in India before you arrived in Melbourne as you suffer with deep vein thrombosis (“DVT”) and you wanted to break up the travel. You said you were on medication for DVT, however, had forgotten to pack it leaving it in the United States.
8 ABF noted there was no ticket for the Australian Fitness and Health Expo in your possession.
9 Two mobile phones were in your possession: a Samsung Galaxy J2 Prime SM G532G and a Samsung Galaxy S8 both seized by ABF for digital device examination.
10 Your baggage was examined and you were taken to an examination room for further questioning. A non-medical body scan was conducted by consent and sent to the Royal Melbourne Hospital which included “non-unambiguously normal but no definite evidence of concealment identified. Low quality x‑ray – consider medical CT scan if other indicators are strong.”
11 AFP officers were contacted and arrived at the examination room where you were. You signed a consent to an internal search form and were taken by AFP officers to Royal Melbourne Hospital for a CT scan.
12 Once the scan was conducted, police were advised that foreign objects had been located within your body and you were conveyed by AFP officers to a Short Stay room at the hospital.
13 You were cautioned by AFP officers and made the following admissions:
(a)that you had swallowed 100 plus pellets;
(b)you did not know what type of drug it was;
(c)you had swallowed the pellets 20 hours ago in New Delhi, India;
(d)the pellets were wrapped in plastic.
14 At 11.08 am on 26 October 2019, you asked to use the toilet and were taken to a bathroom at the hospital. After you had used that toilet, 41 white pellets were located in the toilet trap.
15 At approximately 4.45 pm that same day, you again asked to use the toilet and were taken to the bathroom at the hospital. After you used it, 17 white pellets were located in the toilet trap. Then, at approximately 6.34 pm, you expelled a further 19 white pellets.
16 At approximately 12.08 am on 27 October 2019, you again asked to use the toilet and expelled 12 white pellets. At 12.38 am you made the following admissions:
17 You said you had swallowed 105 pellets in total. You had counted the pellets when you had swallowed them, but you could not be sure about the exact number because there were so many. You had swallowed them over about two hours.
18 At approximately 1.08 am, you again asked to use the toilet and expelled a further seven pellets. At approximately 4.49 am on 27 October, you again used the toilet, expelling five white pellets. At approximately 7.00 am, you expelled another three white pellets.
19
At approximately 10.26 am, you again asked to use the toilet after which three white pellets were located in the toilet trap. At approximately 1.46 pm on
27 October, you expelled the final two white pellets.
20 A CT scan conducted on 28 October 2019 was clear of any foreign bodies. In total, you expelled 109 pellets. These were subsequently forensically examined and the measured total weight of the cocaine was 1,287.3 grams, the calculated net weight of pure cocaine being 1,001.5 grams.
21 Cocaine is a border controlled drug with the following minimum thresholds:
(a)a marketable quantity is two grams;
(b)a commercial quantity is two kilograms.
22 The measured total net weight of the cocaine being 1,287.3 grams converts into 1.2 kilograms, 1.2 kilograms multiplied by $180,000 being the low range price per kilogram, is $216,000. The high range price per kilogram is $240,000. 1.2 kilograms multiplied by $240,000 is $288,000.
23 The seized cocaine could potentially produce 12,873 individual dosages or points. This figure is derived from dividing the total net weight of 1,287.3 grams of cocaine by 0.1 grams (which is the weight per point).
24 The estimated street value of the cocaine is $386,190 if sold at $300 per gram, being the low range price per gram, at current purity. The estimated street value of the cocaine is $514,920 if sold at $400 per gram, being the high range price per gram, at the current purity.
25 You were arrested and taken into custody on 26 October 2019 and have remained in custody since that date.
26 On 21 January 2020 at a committal mention the charge that is now before me was filed and you pleaded guilty to it. The matter was then listed for a plea hearing. You had, therefore, been in custody for 256 days up to and including 7 July 2020, as at your plea hearing.
27 You have pleaded guilty to this charge and you are entitled to have that fact taken into account in your favour and I do so. You have, by your plea of guilty, spared the time and cost of a trial and witnesses have not been required to give evidence at any trial. I also note that you indicated your intention to plead guilty to this charge at the earliest opportunity. Your plea of guilty has utilitarian value[1] and mitigates your sentence, as does the entering of your plea at an early stage and I note also through admissions made by you at the time of interview with police on 26 and 27 October 2019. It was, however, a strong case in the circumstances.
[1]DPP (Cth) v Thomas (2016) 315 FLR 31 (‘Thomas’).
28 I accept in your case your plea of guilty also indicates remorse for your offending. This was very risky behaviour by you in this offending, to say the least, let alone the criminality of it for which I am to sentence you.
29 Your counsel, Mr Dunn QC, provided a written outline of submissions for the plea hearing (Exhibit 1).
30 He described that you are married to Anastasia, who works as a nurse with the Department of Veterans Affairs in the United States. She lives with your two children, four and two years of age, in New York.
31 You previously travelled to Australia with your wife for a holiday in 2011 and 2012.
32 You have a Bachelor of Arts in history and an Associate Degree in nursing. You worked in hospitals for New York City Health between 2001 and 2012, until, as I understand, you experienced a workplace injury.
33 In addition to nursing, you started selling second-hand vehicles in New York City and into Africa.
34 In October 2019, you travelled from New York to Europe for business purposes and at that time formed a liaison with a woman in Europe for a number of years.
35 It was when in Europe, you were persuaded to transport drugs to Australia for financial reward.
36 You are at Fulham Prison and Mr Dunn urged you had been a model prisoner and incident-free, which I accept.
37 Your counsel appropriately conceded the only sentence was a term of imprisonment. He submitted on completion of your sentence you would be deported and return to your family.
38 A chronology was attached to Mr Dunn’s submissions (Exhibit 2), further relevant to your background, to which I shall shortly refer.
39 You are 55 years of age at sentence and I note without any prior convictions or court appearances alleged. Mr Dunn urged you cooperated with police at the airport, and you did not require a committal hearing be held, that is, no witnesses have been required to give evidence regarding your offending and the investigation into it.
40 You do not have any family contacts in Australia. Your role was as a courier taking the drug cargo from outside Australia to within.
41 You acknowledged your guilt and pleaded guilty to this charge.
42 You were currently in Fulham Prison and Mr Dunn referred to the impact on prisoners generally in the current COVID-19 Pandemic, however I discussed with him the speculative nature of some of his submissions made at that time. I do accept your family lives overseas and your contact with them requires arrangements to ‘speak’ at somewhat restricted hours due to the time difference. I also accept you will be anxious about their health (in New York, given the pandemic there) and also regarding your own health in prison.
43 Regarding deportation, Mr Dunn referred to your lack of visa entitlement to remain in Australia and with no entitlement to remain in Australia at completion of the sentence. I note your intention to return to your home and family in the United States. Your circumstances are somewhat different to someone likely to be deported from Australia to a country where they do not have family and connections.
44 Mr Dunn urged you were not the originator of this plan, or the profit maker. You were, however, prepared, in my opinion, to undertake this activity for money. While you were not the principal offender relevant to this transaction and the likely amount of money received by you relatively small, you were prepared to undertake this activity, which you knew was illegal, for the money you were offered. Your role in this offending was integral to the plan to import cocaine into Australia.
45 Returning to your background, you are the second of four children. You graduated from university with a Bachelor of Arts in history. In 1985 you commenced a one-year mandatory youth service program for all tertiary education graduates.
46 In 1988, you applied as a service manager for Kenz in Nigeria and, in 1989, you migrated to New York, where you then lived for 30 years. You commenced work in the delivery (taxi) business, working in that for the next nine years, sending money back to your family in Nigeria.
47 In 1994, you married Michelle Clark and in 1997 obtained United States permanent residency.
48 In 1998, therefore, you were living in New York, working as a taxi driver, married and enlisted in the United States Army Reserve.
49 In 1999, you enrolled in the Adult Practical Nursing Program at the Brooklyn School to study vocational nursing.
50 In 2000, you were then living in New York, working part time in the taxi industry and studying nursing. You eventually graduated from the nursing program in June that year.
51 In January 2002, you were working as a nurse. Your marriage with Michelle Clark however was “heading to divorce”. In that year, you established “Motorway Corp”, a licensed second-hand dealer.
52 By 2003, you were therefore divorced, working as a nurse and selling second-hand cars. You also enrolled in an Associate Degree nursing program at Queensborough in New York to obtain further qualifications.
53 In 2006, you graduated with a degree in nursing and passed a licence examination to be a registered nurse in New York State.
54 In November 2006, you were upgraded at Elmhurst Hospital to an RN nurse in the psychiatric department.
55 In 2007, you became a US citizen and later that year, in addition to working at Elmhurst Hospital, had occasional day shifts for the prison health services at Rikers Prison, New York City.
56 In January 2008, you met your now wife Anastasia, on a trip to visit family and relatives in Nigeria. You became engaged and lived in New Jersey, at that time you were working at the Elmhurst Hospital and also part-time selling second-hand cars, engaged to Anastasia, marrying her later in 2008.
57 In 2009, you and your wife lived in New York and purchased a family home, I understood she still lives in that home today.
58 In 2010, your father passed away. In 2011, your wife lost a child in her first pregnancy and you both came to Australia on a packaged holiday.
59 In 2012, your wife was involved in a motor vehicle accident and lost your second child. Later that same year, you were injured at the Elmhurst Hospital Centre in the psychiatric unit, resulting in separation from that employment due to that disability.
60 Between 2013 and 2015, your wife had several miscarriages. You were, at that time, working as a staff nurse in the prison health services.
61 In 2015, your daughter was born, now age five.
62
In 2016, you established Global Trade and Technologies Ltd, selling
second-hand American vehicles into Nigeria.
63 In 2017, you received $49,000 for your worker’s compensation settlement at Elmhurst Hospital, then travelled to Europe, buying vehicles in Europe to be sold in Nigeria.
64 In 2018, you were at that time working in New Jersey as an occasional nurse, selling and buying second-hand vehicles to be sold in Nigeria. In that same year, your son was born.
65 In January 2019, you were living in New Jersey. You incurred a debt in Europe of €36,800 for vehicles you purchased in Europe. There was a confrontation over the debt in August to September 2019, and you agreed to travel to Melbourne for €17,500, to assist repayment of that debt. Your offending then occurred.
66 In prison at Fulham you work as a billet and I was told had no prison incidents. A number of certificates were tendered, confirming completion of courses: ‘Crossroads Who are you?’, ‘Men who Met Jesus', ‘What the Bible Teaches’, and ‘Cannabis and Me’ (Exhibit 4).
67 There were also a number of references tendered, which I have read (Exhibit 3). From your wife, Anastasia Oji, dated 28 June 2020. Her family was taken aback at the news of your arrest and she was struggling to reconcile your arrest with the person she married. It was unlike you, as you would lead the family in Fellowship at the Orthodox Presbyterian Church on a regular basis. Everything she knew about you, your faith and values, how you lived your life, and how you had contributed to the community, was directly opposite to what your offending portrayed. She described being able to speak with you by phone since the start of the COVID-19 Pandemic, and also having video calls with you. She described you as shameful and remorseful for your offending. Also your regret about how your offending could have affected other families in Australia, she having also seen, as a healthcare worker, the havoc of drug use. As I discussed with Mr Dunn, you would also have knowledge of the havoc of drug use as a nurse.
68 A reference from your mother, Florence Oji, dated 28 June 2020. She became aware of your offending in November 2019 and was ashamed of your offending. You had expressed remorse for your offending.
69 A reference from Felix Nwamaghinna, dated 25 June 2020. He met you in 1989, when he and you arrived in the United States searching for a better life. You had remained very close and supportive friends since. He described your respective pursuits in education and career in healthcare in the United States. You as a nurse and he a physician’s assistant, and eventually Assistant Professor at an academic medical centre in New York.
70 He described you as a deeply religious person. He struggled to make sense of the circumstances you had placed yourself in by this offending. Your offending was out of character. You had expressed remorse to him for your offending.
71 There was a reference from Reverend Heather Toms, prison hospital Chaplain, 26 June 2020. She knew you since your arrival at Fulham Correctional Centre in November 2019. Her role was to offer pastoral care and church services to prisoners. You had spoken to her on a regular basis. You enjoyed engaging on a deep level about your Christian journey, the challenges you face, and the importance of your faith. In the time you had been at Fulham Correctional Centre, she noticed you were committed to working through the challenges of the decisions you had made and to hold fast to your faith. You were missing your family.
72
There was a reference from Lieutenant Colonel James Okeke, dated 26 June 2020, who had known you for over 35 years, since in university. He described you as a “kind” person and that your offending was out of character.
He described your employment as a nurse in positive terms, including caring for patients as a staff nurse in multiple hospital wards for New York City Hospitals and being a homecare nurse until your arrest in Melbourne.
73
There was a reference from Reverend Lloyd Sterrett, dated 29 June 2020, Orthodox Presbyterian Church, Franklin Square, New York, the Pastor of that church. You and your family were members and you had been an attendee for over 20 years, until the time of your arrest. He had been in contact with you since your arrest, and described you as remorseful and repentant.
You remained in contact with the church.
74 Mr Dunn addressed his written submissions during the course of your plea hearing. He urged and I note you do not have any prior matters alleged, and that you have pleaded guilty at an early stage to this offending. Addressing the offending behaviour, he urged your role was that of a courier, and that swallowing drugs was very risky for you. I accept that is so although I have no doubt you knew of that risk when you swallowed the pellets, including from your knowledge as a nurse. Mr Dunn referred to the money you hoped to receive as ‘not amounting to a lot’. In my opinion, it was the amount you wanted for your then financial difficulties. In other words, it did not need to be a lot of money, the amount you wanted would have helped to settle your debt.
75 Mr Dunn in oral submissions referred to in detail to a number of cases and sentences imposed in them, including Gwardys v The Queen.[2] Such an analysis is helpful and of guidance as referred to in cases such as Thomas and others referred to by Ms Breckweg for the prosecution. Comparison of cases however has its limitations. The prosecution table of cases in addition to Thomas and DPP (Cth) v Masange,[3] reflect the purpose of each case relevant to sentence.
[2][2019] NSWCCA 62 (‘Gwardys’).
[3](2017) 325 FLR 363 (‘Masange’).
76
Mr Dunn referred to the need for consistency when sentencing for this offending and that the cases provided guidelines. Mr Dunn, as I have said, conceded an immediate term of imprisonment was the only appropriate disposition, although urged your role in it was at the ‘low’ end. I discussed that categorisation with Mr Dunn and Ms Breckweg. I agree with
Ms Breckweg’s analysis of a ‘hierarchy’. I am to look at what you actually did. A courier’s role is not any less significant. Your offending, Ms Breckweg submitted, did not involve you hiring multiple people, or with a $5 million anticipated reward, and hiring the people in Australia to play a role in the arrival of the importation, however, she urged and I accept, analysis of ‘hierarchy’ blurs what people did. Your role, she urged, was nevertheless integral in this case. The importation could not have happened without you. Mr Dunn agreed. As do I.
77 Returning to Mr Dunn’s submissions, he referred to the difficulties you had with contact with your family in prison, to which I have previously referred. Although I also note what your wife said about that she has been having contact.
78 You were at Fulham Prison and he described, not in conditions as onerous as in other prisons in Melbourne. In Fulham, you were living in a shared unit and were a billet and were able to attend Fellowship classes. You were, nevertheless, anxious about the possibility of contracting COVID-19 and I accept you are also anxious about your family. I also accept there has been a reduction in courses available to prisoners as a result of COVID-19.
79 Mr Dunn submitted you were remorseful and contrite, consistent with the references before me. He urged that your rehabilitation prospects were good. I agree.
80 Mr Dunn conceded the need for general deterrence for your offending.
81 Ms Breckweg tendered a written Outline of Submissions relevant to sentence (Exhibit B) dated 6 July 2020.
82
Ms Breckweg referred to the maximum penalty for this offence being 25 years’ imprisonment. That when determining the appropriate sentence in any Commonwealth matter, I am required to take into account the factors outlined in s.16(a)(2), a non-exhaustive list, that is “relevant and known to the court”.
I have taken those matters into account.
83
Turning to the applicable sentencing principles, Ms Breckweg submitted they were uncontroversial and well established. I agree as did Mr Dunn.
The relevant principles, she urged, were:
(a)the importance of general deterrence to be given chief weight on sentence, given the difficulty detecting importation offences and the great social consequences that follow;
(b)where general deterrence is a paramount sentencing consideration, factors personal to an offender are usually afforded less weight than might otherwise be given (e.g. good character). I note ‘less weight;' but still of relevance;
(c)your level of criminality was to be assessed by consideration of the steps you took to effect the importation. Involvement at any level,
Ms Breckweg submitted, attracted a significant sentence, otherwise the interests of deterrence were not served;
(d)where capable of being discerned, the role played by you was of great importance when assessing your objective criminality;
(e)although the weight of the drug imported was not the principal factor to be considered when fixing sentence, the size of the importation was a highly relevant factor and had increased significance where the offender (you) were aware of the amount of drugs imported;
(f)in many cases, the only factor that would lead to a determination that one importation was worse than another, would be the amount of drug involved where otherwise the circumstances of the importation would be the same or very similar;
(g)as a matter of common sense it should be inferred, unless there was evidence to the contrary, that the person who is importing drugs was doing so for profit (as in your case);
(h)sentences imposed for a drug-importation offences must signal to would-be drug traffickers the potential rewards gained from such activities are neutralised by the risk of severe punishment.
84
Turning to the circumstances and objective seriousness of your offending,
Ms Breckweg submitted that it was objectively very serious. That you imported 1,001.5 grams of pure cocaine concealed in 109 plastic-wrapped pellets that you ingested prior to boarding a flight from India to Australia.
85 The issue of quantity had increased significance in that you were aware of the amount of drugs imported, having ingested the drug yourself. You were aware, at least in general terms, how much you were carrying.
86 The pure cocaine, she urged, represented 50 per cent of the applicable commercial quantity of two kilograms and 500 times the applicable marketable quantity of two grams.
87 The potential value of the imported cocaine was, she urged, significant. Estimated wholesale value of the imported cocaine was between $216,000 and $240,000 to $288,000. The estimated street value of the cocaine $386,190 if sold at $300 per gram and $514,920 if sold at $400 per gram.
88 Regarding your culpability in this offending, you also knew how much you were taking of the drug. Ms Breckweg submitted hierarchy was artificial, blurring your role in the offending.
89 The value of the drug, Ms Breckweg submitted, was relevant to the commerciality of your offending, a motivation for you to commit the offence and the temptation of others to commit similar offences.
90 Ms Breckweg referred to the potential harm or danger to the community that could have been wrought by the sale of this quantity of drugs, which she described as “extensive”.
91 Your role was critical in that you were the courier. Despite that role being at the ‘low’ end of a drug-syndicate hierarchy, a courier nevertheless played an integral and crucial role in ensuring the importation of drugs was successful. In that regard, I was referred to Gwardys, and that similar factual scenario.
92 It was to be inferred your motivation for the offending was financial gain and that, I note, was confirmed by Mr Dunn in submissions.
93 While importing the drug in your case was risky, involving swallowing the cocaine, it was, however, she submitted, one of the best ways to avoid detection, in that ingestion was less likely to bring you to the attention of authorities. There was also the added risk to your life and the required effort to consume and then expel the pellets. I agree.
94 While Ms Breckweg acknowledged you did not have a criminal record, it was well established that prior good character carried less weight in drug trafficking offences (albeit not extinguished). The reason why it carried less weight in such cases was because it was not uncommon for persons who physically import drugs to be specifically selected for that task because of their blameless background, in the hope authorities would pay less attention to the venture being undertaken.
95
In your case, Ms Breckweg submitted none of the principles in R v Verdins & Ors[4] were enlivened in your case, such as to reduce your moral culpability or the weight to be given to general and specific deterrence. Your counsel,
Mr Dunn, did not urge any of the principals in Verdins were applicable in your case and that, in my opinion, was an appropriate concession on the material before me and I note an ‘expert report’ was not tendered in that regard.
[4](2007) 16 VR 269 (‘Verdins’).
96 The prosecution accepted, as do I, your plea of guilty, was at an early stage and your plea had utilitarian value. Further, I accept it demonstrated, a degree of remorse, a willingness to facilitate the course of justice, and an acceptance of responsibility. I note, as submitted by Ms Breckweg, your plea of guilty was entered in the face of an overwhelming Crown case. It still however has significance and importance.
97 Ms Breckweg accepted, the consequences of the COVID-19 Pandemic had made prison more onerous in terms of prisoner access to courses, visits and time spent in confinement in cells, however, submitted that was not peculiar to you, rather, applied to all, if not, the vast majority of prisoners. In addition, you could not be said to be affected by the removal of personal visits as you had no contacts in Australia and would not have anticipated receiving such visits. I also note in the reference provided by your wife, there has been contact via phone and via videoconference with her while you have been incarcerated.
98 Addressing your likely deportation, while you would be, as a citizen of the United States, isolated from family and friends while undergoing sentence in Australia, Ms Breckweg submitted that should be moderated given you were clearly aware of the risk of imprisonment when importing drugs into Australia. In addition, you had English-speaking skills, meaning you would not have to make cultural adjustments in custody.
99 Further there was no suggestion you intended to live in Australia permanently and, accordingly the potential loss of the opportunity to settle in Australia, would not, in her submission, and I agree, make your imprisonment more onerous.
100 Ms Breckweg referred to a number of comparative cases to provide some assistance in determining sentence. I have read those cases and discussed those with counsel. It is difficult comparing cases factually, as facts vary enormously cases to case, as do all matters in mitigation and personal to an offender. Comparative cases, however, do provide some assistance in relation to the relevant principles involved when sentencing for Commonwealth offences such as yours.
101
In The Queen (Cth) v Pham[5] the High Court noted when sentencing for Commonwealth offences the Court must have regard to sentences imposed in other States and Territories, relevant to consistency in Federal sentencing.
That comparable cases served two purposes; firstly, providing guidance as to identification and application of relevant sentencing principles, and secondly, comparable cases can be used to achieve reasonable consistency in sentencing by yielding discerning sentencing practices and possibly a range of sentences against which to examine a proposed (or impugned) sentence.
[5](2014) 256 CLR 555 (‘Pham’).
102 Sentences imposed by courts were “yardsticks” to help inform a sentencing court as to the appropriate sentencing range.
103 Ms Breckweg referred to a number of intermediate appellate decisions outlined in a Schedule which she provided to the Court (Exhibit C) to help inform the Court as to the appropriate sentencing range.
104 Ms Breckweg urged guidance was provided in other cases involving importation of a marketable quantity of a border-controlled drug: Thomas, and DPP (Cth) v Kachunga; DPP (Cth) v Masange.[6]
[6](2017) 325 FLR 363, 393 [117-124, 148-150].
105 As well as matters personal to you, including your prospects of rehabilitation, I must also take into account the need for general deterrence when sentencing you, as such is important in a case such as this.
106 While I note you do not have any prior criminal history, you nevertheless over a significant period of time (days), were involved in arranging, collecting/receiving, and swallowing this drug with numerous opportunities along the process to desist from such behaviour before you were intercepted by police in Melbourne.
107 I must also consider the question of protection of members of the community from you and bearing in mind the likelihood of your re-offending. I note your likely deportation upon completion of sentence.
108 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
109 I sentence you as follows.
110 On Charge 1, you are convicted and sentenced to six years’ six months' imprisonment and I set a non-parole period of four years’ six months' imprisonment. The sentence is to commence today.
111 Pursuant to s.18(4) of the Sentencing Act 1991, I declare you have spent 275 days in custody by way of pre-sentence detention and I direct that be entered into the records of the Court.
112 Had you pleaded not guilty to this offence and been found guilty of it, pursuant to s.6AAA of the Sentencing Act 1991, I would have sentenced you to a term of imprisonment of nine years, with a non-parole period of seven years.
113 Now, first thing is first, have I got the sentence right? What I am asking you, Ms Breckweg, is not if you agree with the figures, is that consistent with the wording of Commonwealth sentences which are tricky at the best of times?
114 MS BRECKWEG: It is perfect, Your Honour.
115 HER HONOUR: Thank you. That is all I needed to know. It is just,
Ms Moore, I am not horse trading about the figures, it is just getting it right from the Commonwealth legislation perspective, do you follow?
116 MS MOORE: That's fine, Your Honour, thank you.
117 HER HONOUR: Right. Now, does everyone agree, 275 up to and including yesterday?
118 MS BRECKWEG: I had 277 but my arithmetic is not the best.
119 HER HONOUR: That is all right. What did you have, Ms Moore?
120 MS MOORE: I also had 277. I was just redoing the maths however, Your Honour, just to make sure.
121 HER HONOUR: All right, do that and I am happy to change it of course. Just double check that if you can.
122 MS MOORE: Thank you, Your Honour.
123 HER HONOUR: How did we go, 277, is that right?
124 MS MOORE: It is, Your Honour. I do not want to mislead the court, I am trying to ensure accuracy, I apologise. I do think it is 277, Your Honour.
125 HER HONOUR: Well Ms Breckweg agrees so who am I to argue? So I will call it 277 days, so not 275, it is 277 days by way of pre-sentence detention, s.18(4) as at and including yesterday, 26 July. I hope that is now clear.
126 Were there any other orders, Ms Breckweg, I did not have any?
127 MS BRECKWEG: No, Your Honour.
128 HER HONOUR: No, all right. If there is nothing further, everyone is right with everything? I am not asking if you like it, I am just asking if you have got it all written down. Are you right, Ms Moore?
129 MS MOORE: Yes, thank you, Your Honour. If it please the court.
130 HER HONOUR: Great. Are you right, Ms Breckweg?
131 MS BRECKWEG: Yes, thank you, Your Honour.
132 HER HONOUR: All right. Now, Mr Oji, you heard all that so your counsel or your solicitors will speak to you, no doubt about it. But anyway, that is it, we are going to disconnect everything. So everyone is all right with that?
133 MS BRECKWEG: Thank you, Your Honour.
134 HER HONOUR: Yes.
135 MS MOORE: Thank you, Your Honour.
136 OFFENDER: Thank you.
137 HER HONOUR: Disconnecting everybody, thank you.
138 OFFENDER: Thank you, Your Honour.
- - -
0
4
0