Director of Public Prosecutions v Uzor

[2018] VCC 1780

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01739
CR 17-01740

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALLISTUS UZOR
RONNY OKEKE

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2018
DATE OF SENTENCE:	30 October 2018
CASE MAY BE CITED AS:	DPP v UZOR
MEDIUM NEUTRAL CITATION:	[2018] VCC 1780

REASONS FOR SENTENCE
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Subject: Import commercial quantity of cocaine, Import commercial quantity of methylamphetamine
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Wilson	OPP
For Accused UZOR	Ms N. Valos	Valos Black
For Accused OKEKE	Mr W. Toohey	Georgianni & Liang

HER HONOUR:

1Ronny Okeke and Callistus Uzor, you have pleaded guilty to jointly importing a marketable quantity of cocaine in two consignments that were intercepted in Australia on 18 April 2016 and 5 May 2016.  That is Charge 1.  Additionally, you Uzor, have pleaded guilty to another charge of importing a commercial quantity of methamphetamine in two consignments, that were intercepted in Australia on 12 May 2016 and 15 June 2016.  That is Charge 2.  Each of these offences are Commonwealth Offences.

2The maximum penalty for the offences relating to a marketable quantity is 25 years and in relation to a commercial quantity is life.  Section 16A(2) of the Code, sets out an un-exhaustive list of factors to be taken into account, when a court sentences a person for a federal offence.  The sentence is required to be of severity, appropriate in all the circumstances of the offending.  First, as to the nature and circumstances of the offence, that is s.16A(2)(a).  Other offences, if any, that are required or permitted to be taken into account, s.16A(2)(b) and (c), if the offence forms part of a course of conduct consisting with a series of criminal acts, of the same or similar character that course of conduct.

3The full details of your offending are contained in the prosecution opening for plea hearing dated 16 August 2018 and can be summarised as follows.  The drugs were arranged to be sent from four different countries overseas to false names and addresses, where the associated residence appeared vacant.  It was anticipated that the drugs would be collected by another person arranged you, Uzor, though because each of the packages were intercepted by authorities, none of the drugs were delivered.

4After information had been received by investigators on or about 26 March 2016, warrants to intercept several phone numbers used by each of you were obtained.  You both changed your phone number, if you thought that your phone maybe being intercepted.  You were both identified as connected to these numbers, as a consequence of the words spoken, consistent code words being used, references in the calls to a change in phone numbers and references by each of you to events in your individual lives that were confirmed by independent records.

5As to Charge 1, on 18 April 2016, the first parcel was intercepted by Australian Border Force or ABF officers.  The parcel contained wool yarn, cosmetic products and 144 lipsticks.  One hundred and thirty-seven of the lipsticks contained a concealed white powder.  The powder weighing 262.1 grams was cocaine, with a purity of 62.8 per cent or about 164.5 grams of pure cocaine.  This was worth between $109,350 wholesale and $146,040 street value.

6Two days before, you Okeke, had texted the details on that first parcel to you, Uzor.  You spoke soon afterwards and referred to the tracking number and described the contents as being for the nose, consistent with it being cocaine.  In the days following, you discussed the tracking number of the first parcel and its delay in arriving using code.  Okeke then later called you Uzor, to check if the first parcel had arrived.  You had discussions using different phone numbers regarding the progress of the first parcel and ultimately, a new consignment and seizure of the first parcel.  On 5 May 2016, the second parcel was intercepted by ABF and contained 69 printer cables, 50 of which contained two hidden packages of powder in foil.  The powder weighing 469.1 grams was cocaine with a purity of 62.8 per cent, or about 291.7 grams of pure cocaine.  This was worth between $194,250 and $259,000.

7Two days before, you discussed the second package, confirming then correcting the tracking number.  On 7 May 2016, you had discussions regarding the delivery address and the possibility of the delivery being monitored.  On
8 May, you discussed that the second package had developed broken legs, or the item had been intercepted.  Days later you spoke about the second package being from Tobago with the computer part packages and being for the nose.    The amounts imported in parcels one and two, with a combined total of 456.2 grams of pure cocaine, was significantly greater than the prescribed marketable quantity of cocaine of 2 grams.  In respect of the second charge, this relates only to you, Uzor.  On 12 May 2016, a third parcel was intercepted by the ABF.  It contained four boxes, each of which held a separate box with two small speakers and a Subwoofer speaker.  Inside the control unit of each speaker were layers of cling film foil, carbon paper and a clip sealed bag.  Each bag contained a crystalized substance of methylamphetamine weighing 1,986.5 grams.  The purity was not determined prior to this drug being destroyed, as the link to your offending had not been established yet by the authorities.

8On 13 May 2016, you, Uzor, sent an SMS to an unknown person, that included the name, address and details on the third parcel.  Later that day, you called an unknown person referring to package three having a broken leg.  Code for being intercepted.  You expressed disappointment because you had missed out on the money, but also relief that you would not get into trouble.  You, Uzor, also spoke with an unknown person in Malaysia, expressing your frustration at the failure of package three to arrive.  On 14 June 2016, a fourth parcel was intercepted by ABF.  It contained a rice cooker, inside of which were two hidden packages glued to the heating plate wall, each containing a crystalline substance, methylamphetamine.  It weighed 550 grams, with a purity of 79.2 per cent, or about 389.7 grams.  This was worth between $51,900 and $86,500. 

9On 2 June, you had received a text with the details of the address for package four.  Soon after you forwarded the name and contact phone number, details of package four to a number in Malaysia.  On 7 June, you received a text with the tracking number for package four from a different number in Malaysia.  You called that number, confirming receipt of the information, an enquiry in which company would undertake delivery.  The next day you queried who was transporting package four as you were having difficulties monitoring it.  You were informed the package was not sent to where you were.  You said it was better not to discuss the matters on the phone.  You had further conversations with the person on the Malaysian number over the next four days and discussed delays in the fourth package coming and confirmation of its arrival.

10The purity of methylamphetamine in the first parcel, with a gross weight of 1,986.5 grams was not tested, but was greater than 18 per cent, or at least 360.3 grams of pure methylamphetamine.  The fourth parcel contained a total of 389.7 grams of pure methylamphetamine.  Combined, it was conceded that the two consignments contained more than the prescribed commercial quantity for methylamphetamine of 758 grams.

11You, Okeke, were arrested on 13 September 2016 at Villawood Detention Centre and three mobile phones were seized.  On 17 November 2016, you, Uzor, were arrested at your St Albans home.  You were interviewed and denied being the user of the relevant phone numbers or knowing Okeke.  Records from Villawood showed that you had visited Okeke on 16 January and on 30 April 2016, the latter date being after the first package had been delivered.

12As to your roles, both of you engaged in a course of conduct, Okeke for 19 days and Uzor for 61 days.  You worked together to import the drugs for financial gain.  There was, however, no evidence of significant financial betterment.  You both had contact with people overseas also involved.  You changed your phone numbers when suspicious or concerned regarding your detection.  You were both intermediaries who had an active role in the offending.  Your roles were higher than that of a courier.  In respect of Charge 1, the combined total of 456.2 grams of cocaine is well over a marketable quantity, or about 20 per cent of a commercial quantity.  In relation to Charge 2, it was conceded by the prosecution that the precise amount imported was close to the commercial threshold.

13Section 16A to M, the character antecedence age, means and physical mental condition of the person and sub-s.(p), the probable effect that any sentence or order under consideration would have on any of the persons family or dependents. 

14I turn first to you Mr Okeke.  You are aged 54.  You were born in Enugu Nigeria, but obtained citizenship in New Zealand in 1996.  You have permanent residence here in Australia, having been here since 1998.  You were raised by your mother who still lives in Nigeria.  You have two sisters and two brothers.  Your father is deceased, but played little role in your life.  Your family were poor and your mother struggled to provide for the family.  You completed secondary school in Nigeria.

15You were married in New Zealand in 1997, though you separated whilst you were incarcerated for other drug matters.  You have one daughter Jessica, aged 17 who now resides in Canada.  You remarried, though that union has also broken down.  You have some qualifications completing TAFE courses in real estate, transport and logistics and aged care.  You also completed a Business Administration Diploma Program in New Zealand.  You worked as a sales representative in a pharmaceutical company in Nigeria and worked as a jib rocker or a plasterer and an aged care worker in Sydney.  You have a number of medical issues, including ongoing cardiac issues since you suffered a heart attack when you were in custody in New South Wales.  Renal problems and high blood pressure.  You have been diagnosed with a paraprotein condition and also reported suffering PTSD after an assault in 2004.

16I was provided with reports from Ian McKinnon, consultant psychologist, dated 11 August and 17 September 2018.  Your counsel submitted, on the basis of the opinion expressed in those reports, that all of the principles in Verdins apply to you.  The prosecution disputed this and challenged the opinion regarding your psychological state, both at the time of the offending and since you have been in custody.  Mr McKinnon expressed the opinion that at the time of the offending, whilst at Villawood, you were suffering with a mixed anxiety and depression disorder.  That you were deeply depressed, anxious, pessimistic and fatalistic about the future and unable to reason and apply sound judgment.  Further, he was of the view that you were currently suffering a depressed mood disorder, that would impact on you whilst you were in custody.

17Mr McKinnon was extensively cross-examined by the learned prosecutor regarding his opinion, particularly his assessment of your functioning at the time of the offending and since you have been incarcerated.  Mr McKinnon attributed your state to a number of factors operating at the time of the offending.  Namely, one, the events that had occurred at Villawood, see second report, and your exposure to them. 

18Two, your circumstance, that you had undertaken positive steps towards your rehabilitation whilst incarcerated in New South Wales, including the completion of courses and then your immediate detention at Villawood on your release.  That you viewed your situation with pessimism and felt that your predicament was hopeless and unresolvable.  That in those circumstances, your judgment was clouded and you were vulnerable to the influence of others and not able to properly consider the consequences of your actions.  It was these factors, combined with other underlying depression and anxiety, that Mr McKinnon relied upon for his opinion at the time of the offending and whilst in custody, you suffered from an adjustment disorder with a high level of anxiety. 

19Mr McKinnon was cross-examined about the period of time he spent with you, carrying out the assessment and limitations on the material considered.  He was also questioned regarding the contents of some of the telephone intercept material, particularly that illustrative of you playing an active role, giving instructions and not being subjected to the influence of others.  He was also questioned regarding the medical records.  That there was no indication by you, or other medical professionals, either of Villawood or whilst on remand, that you were suffering significant mental health issues and/or heightened anxiety.

20Finally, he was questioned regarding the lack of provision of a similar previous opinion, as to your psychological state at the time of your offending in New South Wales and the Sentencing Judge's rejection of that opinion. 
Mr McKinnon conceded that the TIs revealed careful and deliberate conduct to a degree, but maintained they were also explicable by the reckless nature of your offending and the high likelihood that you would be discovered, particularly given that you were in detention when offending.

21Mr McKinnon conceded that it was equally plausible that you were acting in this brazen fashion, armed with the knowledge of this kind of offending from your previous drug dealings and decided to chance your arm.  Mr McKinnon maintained his opinion despite the concession that he did not have available to him, all the details or depositions regarding this offending and that you were the source of most of his information, particularly regarding the situation when released from custody in New South Wales and then detention in Villawood.  Further, you were the source for the reason for you becoming involved in this offending.  Namely, that you were pressured by others and managed to get phones from somewhere in Villawood, in order to commit this offence. 

22Defence counsel submitted that you did not get involved immediately, rather, there was a period of twelve months whilst you were in detention before this offending commenced.  That the hopeless situation you found yourself in was due to the traumatic circumstances in Villawood and your bleak prospects, that was despite your previous rehabilitative attempts whilst in custody in New South Wales.  In those circumstances, your psychological state influenced your actions at the time of the offending.  Further, it was submitted that your current functioning will make custody more onerous for you.

23I accept that there were some matters operating on your mind at the time of the commission of this offence. Though it is apparent that you were able to revert back to very similar offending within a relatively short time of being placed in detention.  The evidence suggests the plan involvement in this offending, with detailed communications between you to facilitate the importation. 

24Though it may be that you were overwhelmed with your predicament and exposure to other incidents in detention, any reduction of your moral culpability for this offending and moderation of specific and general deterrence as a consequence is limited.  As to your situation in custody and the submission by your counsel that it is more burdensome for you, I accept you have no outside contact with anybody, including family members and that you have a lonely existence.  Additionally, that you face deportation in New Zealand where you have no family or connections.  You have been in this country and established yourself since 1998, though some of that time was when you were in custody.  You have the additional burden of worry about your future once released.  I take your level of psychological functioning, in addition to those matters, into account in considering that custody will be more burdensome for you.

25As indicated you were placed in detention when you had been released on parole in May 2015.  You were arrested and remanded on 13 September 2016.  So you spent 471 days in Villawood.  I take this period of detention into account and the matter recently set out in the Court of Appeal in Underwood Number 2, 2018, VSCA 87 at paragraphs 30 to 37.  Though I note that you offended whilst you were in detention.  You were placed in detention immediately on your release for New South Wales custody.  So you effectively had a level of monitoring, including your time on remand for over three years.  I take the time in detention into account in a broad and practical way in the ultimate sentence that I will impose.  You have relevant prior convictions in New South Wales for dealing in proceeds of crime and other serious drug matters.  You were ultimately sentenced for these matters to ten years, six months imprisonment, with a non-parole period of six years, ten months.

26I was provided with both the learned Sentencing Judge's reasons and the Court of Appeal judgment.  It is fair to say that offending is very similar to that before me.  It involved the receipt by fraudulent identities of packages containing either heroin or cocaine.  The offending was described by the learned Sentencing Judge as being above the mid-range of objective seriousness for this type of offences, including the timeframe which was seven months, the amount 1500 grams and value of the drugs.

27I turn then to the personal circumstances of you Mr Uzor.  You are currently aged 59 and were also born and raised in Nigeria by your parents who are both now deceased.  You have six sisters and one brother and all your family reside in Nigeria.  You left your parents' home when you were aged 25 to pursue employment with the Nigerian Government and migrated to Australia in 2000, aged 41.  You completed primary and secondary education undertaking the equivalent available exams in Nigeria.  You then worked in private industry, before taking up positions with the Nigerian Government.

28In New Zealand and then Australia, you worked in sales for a number of companies.  Between 2013 and 2017, you were employed as the manager of EZE Global Enterprises, an automotive exports and recycling company in Sunshine north.  You have been married to Patricia since 2013 and have two children, Joseph aged three and Daisy aged thirteen months.  Your family remain supportive of you, though are struggling financially without income and relying on Centrelink benefits.  Additionally, your wife has limited social supports.  You have two daughters from a previous marriage aged 19 and 20.  Originally, they were in New Zealand, but moved to Australia in 2015 to live with you and your wife.  Both went to university and you helped them enrol and pay for fees at university.  You have not had contact with them since you have been in custody.

29It was submitted that you became involved in this offending as you felt under financial pressure, supporting your immediate family, but also sending money to your brother whose wife has terminal breast cancer.  I accept your family will suffer financially and emotionally whilst you are in custody.  Though it was not submitted that this circumstance was exceptional.  It is a matter I take into account.  In addition to the support of your immediate family, you have remained connected to your church.  On your release from custody, you are keen to continue and act within a supportive role within the church.  I take into account the material tendered on your behalf from both the church and your family members.  You have no history of alcohol or drug use or other physical or mental health issues.

30You also have a relevant prior conviction.  On 8 May 2008, you were sentenced by Judge Smallwood of this court, for four counts of importing a marketable quantity of drugs into Australia.  You were sentenced to nine years imprisonment with a non-parole period of six years.  Your role in that offending was described as integral, where you opened post boxes under various names for receipt of drug packages for financial reward.  You were described by His Honour as having good rehabilitation prospects at that time.  That prediction has not come to fruition.  Section 16A to G, if the person has pleaded guilty to the charge in respect of the offence and F, the degree to which the person has shown contrition for the offence.

31You, Okeke offered to plead guilty on 10 April 2018 and you Uzor on 24 June 2018.  While neither of you could be said to have pleaded at the earliest opportunity, I take your plea of guilty into account.  Your pleas have significantly facilitated the course of justice, and have a utilitarian benefit, saving the cost of legal proceedings to the court and the community.  I accept that your pleas are indicative of some remorse.  Section 16A to sub-s.(n), the prospects of rehabilitation.  The most significant factor in assessing both your prospects for rehabilitation are your prior matters and the descent into similar criminal activity.  Given your family support, your prospects Uzor are more positive, though I consider them only to be fair. 

32Your situation is different Okeke, particularly give your immigration status.  Though you did, when incarcerated in New South Wales, worked towards your own education and future.  Your prospects now are more limited.  A level of caution is required in making an assessment of either of you in this regard.

33Section 16A to J, "General deterrence", sub-s.(ja).  Specific deterrence and K, the need to ensure the person is adequately punished for their offence.  Offences involving the importation of border controlled drugs are regarded by the courts as very serious, as illustrated by the maximum penalties.  Both of you knew that given the extended periods in custody that you have already served, that this was serious offending.

34The availability of drugs in the community has enormous social consequences and your actions were designed to facilitate their distribution.  Both just punishment and general deterrence are important sentencing considerations, as is specific deterrence.  These must be balanced against matters including your personal circumstances and your pleas of guilty.  Both your counsel acknowledged this offending warranted a term of imprisonment.  As to you Okeke, I received submissions from the prosecutor regarding the combined effect of the Commonwealth and New South Wales provisions on your sentence and the amount still owing on your current sentence, a period of approximately three months, the sentence being due to expire on 31 January 2019.

35The imposition of this sentence today revokes that parole order.  The question of totality and orders for concurrency or cumulation arise.  Now there is just one matter I want to check with the prosecutor before I formally announce the sentence.  Am I correct that what is necessary, if I want to make that three month period cumulative on the sentence that I will impose today, that I should order that the sentence I impose today in respect of Mr Okeke commence on say 30 January 2019?

36MR WILSON:  Correct, Your Honour.

37HER HONOUR:  Now do I also need to make an order - I know that my making of an order today revokes the parole order.

38MR WILSON:  Yes.

39HER HONOUR:  But do I have to make some declaration?

40MR WILSON:  In effect, there's a warrant - yes, you would make a declaration and ‑ ‑ ‑

41HER HONOUR:  In what terms please?

42MR WILSON:  I haven't got the wording, but I have got a warrant.

43HER HONOUR:  Yes.

44MR WILSON:  And in effect, that authorises the authorities to take him into custody and to begin serving that sentence today.

45HER HONOUR:  Yes, all right.  If you could both please stand Mr Uzor and
Mr Okeke. 

46In respect of Charge 1 Mr Okeke, you are sentenced to a term of imprisonment of six years.  You, as I indicated, are still subject to the parole order and the imposition of that sentence revokes the parole order.  That sentence is due to commence on 30 January 2019.  I will sign the relevant paperwork that will be provided to me by the Commonwealth, regarding the authorisation of the commencement of the three month period, effectively that you still owe the Parole Board.  I order a non-parole period of three years and nine months in respect of the six year sentence. 

47In relation to you Mr Uzor, in respect of Charge 1, you are convicted and sentenced to a term of imprisonment of six years to commence today.  In respect of Charge 2, you are convicted and sentenced to a term of imprisonment of six years, to commence four years before the expiration of the sentence imposed on Count 1, giving a total effective sentence of eight years, with a non-parole period of six years.  Pre-sentence detention please?

48MR WILSON:  Seven hundred and seventy-seven days ‑ ‑ ‑

49HER HONOUR:  For Mr Okeke.

50MR WILSON:  ‑ ‑ ‑ in the case of Mr Okeke.

51HER HONOUR:  Yes.

52MR WILSON:  And 712 days for Mr Uzor.

53HER HONOUR:  All right.

54MR WILSON:  Not including today in both cases.

55HER HONOUR: All right. I make those declarations, in respect of Mr Okeke 777 days. In respect of Mr Uzor, 712 days. Is there anything else that I need to - pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty
Mr Okeke, I would have sentenced you to a term of imprisonment of eight years, with a minimum of six and Mr Uzor, a sentence of ten years with a minimum of eight.  Are there any other orders that I need to make?

56MR WILSON:  Due to the commencement date, it may be preferable to specify the specific date that it commences, rather than four years before the ‑ ‑ ‑

57HER HONOUR:  I always do it that way.

58MR WILSON:  I'm instructed it can be done that way.

59HER HONOUR:  I always do it that way.

60MR WILSON:  Yes.

61HER HONOUR:  Is there anything else though?  Do I need to sign some document or something?

62MR WILSON:  I'll hand up those forms of warrants, Your Honour.

63HER HONOUR:  Yes.  All right, thank you.  I will hand those back.  I will just adjourn until Thursday please.

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