Korgbara v The Queen

[2010] NSWCCA 176

New South Wales
Court of Criminal Appeal

CITATION:	Korgbara v R [2010] NSWCCA 176 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	30 July 2010
JUDGMENT DATE:	11 August 2010
JUDGMENT OF:	Allsop P at 1; Hulme J at 2; McCallum J at 5
DECISION:	(1) that the time within which the application for leave to appeal against sentence may be filed be extended to the date on which the notice was received in the Registry. (2) that leave to appeal be granted. (3) that the appeal be allowed. (4) that the sentences imposed by Ellis DCJ on 13 June 2007 be quashed. (5) that the matter be remitted to the District Court for re-sentence.
CATCHWORDS:	CRIMINAL LAW - SENTENCE - statement tendered as agreed facts - applicant not in fact given opportunity to read statement before being asked to sign it - statement containing allegations as to inferences to be drawn from objective material - sentencing process miscarried.
LEGISLATION CITED:	Drug Misuse and Trafficking Act 1985 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912
CATEGORY:	Principal judgment
PARTIES:	Ozone Emeka Korgbara Regina
FILE NUMBER(S):	CCA 2007/3032
COUNSEL:	P. Miller (Respondent/Crown) In person
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 05/21/0031
LOWER COURT JUDICIAL OFFICER:	Ellis DCJ
LOWER COURT DATE OF DECISION:	13 June 2007

- 14 -

2007/3032

ALLSOP P
RS HULME J
MCCALLUM J

11 August 2010

OZONE EMEKA KORGBARA v R

Judgment

1 ALLSOP P: I agree with both RS Hulme J and McCallum J. Their Honours' reasons reflect mine for the making of the orders.

2 RS HULME J: I agreed with the orders made on 30 July 2010 set out in the judgment of McCallum J and I agree with her Honour’s reasons for making those orders.

3 The circumstances detailed by her Honour lead inevitably to the inference that the Applicant’s signature to the “Agreed Statement of Facts” was regarded as important and the case was not one where Counsel’s authority to bind his or her client was to be exercised or relied upon. In that situation justice required that there be free and fully informed agreement by the Applicant.

4 The suggestion in the Applicant’s Statutory Declaration that he should have been provided with an interpreter when compared with evidence from Ms Hall that the Applicant had never once expressed a need for an interpreter and, by virtue of the appropriateness of his answers, he appeared to be able to understand what she was saying to him casts appreciable doubt on the Applicant’s credibility. Nevertheless when regard is had not only to his evidence concerning the agreed Statement of Facts but also to the evidence of Ms Hall on that topic and the other events at the hearing referred to by McCallum J, the most probable inference is that the Applicant was deprived of the chance to give fully informed consent to the Agreed Statement of Facts. That situation amounts to a miscarriage of justice.

5 McCALLUM J: On 13 June 2007, Mr Ozone Korgbara was sentenced by Ellis DCJ in the District Court for one offence of aiding, abetting, counselling and procuring the supply of a prohibited drug (99.8 grams of cocaine) contrary to section 27 of the Drug Misuse and Trafficking Act 1985 and one offence of aiding, abetting, counselling and procuring the supply of a large commercial quantity of a prohibited drug (957.37 grams of ecstasy) also contrary to section 27 of the Act.

6 The first offence carried a maximum penalty of imprisonment for fifteen years. The second offence (relating to the large commercial quantity) carried a maximum penalty of life imprisonment. If that offence had been one of supply, Mr Korgbara would have faced a standard non-parole period of 15 years, but there is no standard non-parole period prescribed for the offence of aiding and abetting such a supply. A further offence of aiding and abetting the supply of a prohibited drug relating to 28 grams of cocaine was taken into account on a Form 1 in accordance with the procedure contemplated in section 33 of the Crimes (Sentencing Procedure) Act 1999.

7 Mr Korgbara was sentenced as follows:

a) for the first offence, to imprisonment for a fixed term of 18 months commencing on 13 December 2008 and expiring on 12 June 2010;

b) for the second offence, to a term of imprisonment comprising a non-parole period of 4 years commencing on 13 December 2008 and expiring on 12 December 2012 and a balance of term of four years expiring on 12 December 2016.

8 At the time those sentences were imposed, Mr Korgbara was serving a term of imprisonment imposed on 17 December 2004 after his conviction for an unrelated offence (importation of cocaine) following a jury trial. The commencement dates of the sentences imposed in the present case were fixed to begin 12 months before the expiration of the non-parole period of that sentence.

9 On 30 July 2010, this Court heard Mr Korgbara’s application for leave to appeal against the sentences imposed by Ellis DCJ. The Court allowed the appeal, quashed the sentences imposed and remitted the matter to the court of trial for the purpose of re-sentencing, reserving its reasons. These are my reasons for joining in the orders made on that occasion.

The need for an extension of time

10 The application for leave to appeal was not filed within the period required under the Criminal Appeal Rules. A notice of intention to apply for leave to appeal was filed on 18 June 2007, within the 28 days permitted under section 10(1)(a) of the Criminal Appeal Act 1912. However, the Rules require the filing of an application for leave to appeal within 6 months after the filing of a notice of intention: clauses 3A(1)(b) and 3B(1)(a) of the Rules. Accordingly, Mr Korgbara’s application for leave to appeal was initially required to be lodged on or before 18 December 2007. Two extensions of time were granted, the last expiring on 7 March 2008. Ultimately, the notice of application for leave to appeal and notice of a further application for an extension of time were lodged on 22 October 2009.

11 The delay was only partly explained, but the Crown very fairly took the position that Mr Korgbara’s application for a further extension of the time within which to file the notice of application for leave to appeal was not opposed except on the basis that the proposed grounds of appeal were without merit. Since the Court concluded otherwise, the application for an extension of time was granted.

Grounds of Appeal

12 The grounds of appeal identified by Mr Korgbara were:

“Ground 1

It is my belief that the sentencing Judge’s finding of Mr Korgbara’s level of involvement as being of partnership with Mr Emefo (who was charged with supply) was inaccurate, his Honour may have been mislead by the ambiguity of the statement of facts, which is not supported by the actual transcript, and evidence.

Ground 2

The sentencing judge failed to attribute relevant weight to Mr Korgbara evidence that he was worried of being on the wrong side of the undercover operative who was represented and portrayed as the Sergent in Arms of a bikie gang.

Ground 3

The sentencing judge did not give proper consideration and weight to Mr Korgbara’s psychiatric condition:
(A) Mr Korgbara’s history of mental illness and a state of mind at the period of the alleged offence
(B) Dr Westmore’s diagnosis that Mr Korgbara may have been more vulnerable due to the threat he perceived the bikie (undercover police) was making when attempting to arrange a drug deal with him.

Ground 4

It is my belief that the sentence is manifestly excessive for the issues raised in grounds 1, 2 and 3.”

13 The material relied upon by Mr Korgbara in support of ground 1 disclosed a fundamental difficulty with the sentencing process. In light of the conclusion the Court reached in respect of that issue at the hearing of the appeal, it is neither necessary nor appropriate to consider grounds 2 to 4.

14 Critical to the sentencing process was the fact that the statement of facts referred to in ground 1 had been presented to the sentencing judge, and relied upon by his Honour, as an agreed statement that had been signed by both the Crown and Mr Korgbara. It is now apparent that Mr Korgbara did not give his informed agreement to that statement and did not in fact agree with important parts of its contents. In the circumstances, I am of the view that, through no fault on the part of the Crown, Mr Korgbara or the sentencing judge, the sentencing process miscarried.

15 Mr Korgbara entered his pleas of guilty on 5 October 2005. The Crown had previously presented an indictment containing six counts, three of supplying a prohibited drug and three alternative counts of aiding and abetting the supply of the same drugs. On the day the pleas were entered, the Crown presented a new indictment containing only four counts, two as alternatives. The first and third counts each alleged that Mr Korgbara supplied the prohibited drug in question. The alternative counts alleged in each case that Raymond Emefo supplied the prohibited drug and that Mr Korgbara aided, abetted, counselled and procured the supply.

16 Mr Korgbara pleaded guilty to the two alternative counts and the Crown confirmed its acceptance of those pleas in full satisfaction of the new indictment. The third offence of aiding and abetting a supply (previously count 2 on the original indictment) was listed on the Form 1. The Crown indicated that it did not proceed further on count 1 on the original indictment.

17 By the time Mr Korgbara entered his pleas, Mr Emefo had already pleaded guilty to two charges of supplying the same prohibited drugs and had been sentenced for those offences, also by Ellis DCJ.

18 After Mr Korgbara’s pleas had been entered, the Crown tendered the “agreed statement of facts” and that statement became exhibit A. The proceedings were then stood over to later in the year for sentence. However, it was subsequently identified that Mr Korgbara had lodged an appeal against his conviction in the importation matter for which he was serving a term of imprisonment. The sentencing judge acceded to a submission that the outcome of that appeal was relevant to the task of sentencing Mr Korgbara in respect of the present matters. The proceedings were adjourned on several further occasions on that basis. The sentence hearing ultimately commenced on 4 June 2007.

19 Mr Korgbara’s written submissions in this court were accompanied by a statutory declaration, which was admitted as evidence in the appeal. He described the circumstances of his signing the statement of facts as follows:

“On 05/10/05, my Legal Aid Solicitor Ms Hall gave me some materials to sign. She told me that it is the Crown statement of facts. (At that stage I do not know what statement of facts mean)
The only explanation Ms Hall gave, was that I need to sign it before the DPP will drop the more serious charges which carries 15 years non-parole period, to a lesser charge of Aid & Abet.
No other explanation was given, and I was never provided with a bilingual interpreter to explain the wordings or the Legal implications.
The statement of facts were 10 pages, when I attempted to read it, Ms Hall told me that we do not have much time because the DPP are waiting upstairs, so that they could go and re-type the indictment.
She said just sign it, I will explain to you later.
At this point [counsel] intervened, and said, there is One Area I will like you to be Aware, the part that Emefo gave you $600 from the $1000 he received for supplying 28 grams of Cocaine.
He said this because when Emefo statement was given to me (about 15 months earlier), I told him that I did not receive any money from Emefo.
[Counsel] then said, There is nothing we could do about it today but we will deal with it before the Judge during sentencing.
Without reading, I turned the pages of the Fact Sheet and initialled it (signed it).
A short time later, I was brought upstairs before the Judge, and was guided by [counsel], on where to say guilty or not guilty.
Ms Hall nor [counsel] never discuss anything about the statement of facts against with me, and I was never given a copy.
The next time I came across of the agreed fact sheet was through Cliver Jeffrey & Associates in preparation for this appeal.
If I had the opportunity to read the statements of fact, and with proper explanation and understanding, I would not have signed it, because the statement of facts is not wholly accurate.”

20 In response to Mr Korgbara’s statutory declaration, the Crown read an affidavit in the appeal affirmed by Ms Hall. She stated that, in the weeks leading up to Mr Korgbara’s trial, she “discussed with him the strength of the Crown case”, which she said involved discussing all of the facts of the Crown case. Ms Hall said:

“Before the fact sheet was prepared, Mr Korgbara instructed [counsel] and I [sic] negotiate on his behalf with a view to pleading guilty. Mr Korgbara was advised about the nature of the charges he was pleading guilty to and what this meant in terms of his role or involvement in the offences. It was explained to Mr Korgbara that we would not have everything he wanted expressed in the facts but that there were some matters that would be conveyed to the presiding judge by his counsel.”

21 Significantly, Ms Hall’s affidavit confirmed that, when the “fact sheet’’ (presumably a reference to the statement of facts that became Exhibit A) was received, she took it down to the cells and attempted to read it through to Mr Korgbara. She said, however: “We did not finish reading it to Mr Korgbara before we were called up to Court”. Ms Hall confirmed, further, that Mr Korgbara did not receive the fact sheet “at that stage” as the lawyers were separated from him by perspex. Ms Hall did not recall ever giving Mr Korgbara a copy of the fact sheet before he was asked to sign it, or indeed at any stage thereafter.

22 The first thing to be observed arising from Ms Hall’s evidence is that it clearly supports Mr Korgbara’s contention that he was not given an opportunity to read the statement of facts so as to give his agreement to its contents before he was asked to sign it. Perhaps more importantly, Ms Hall’s affidavit does not assert that the statement of facts received from the Crown was in accordance with Mr Korgbara’s instructions as known to Ms Hall. Indeed, the affidavit appears implicitly to confirm Mr Korgbara’s complaint that, in some respects, the statement was not in accordance with his instructions.

23 The statement of facts runs to some 10 pages of closely typed print. It contains a combination of direct accounts of the evidence against Mr Korgbara (mostly recorded conversations) and conclusions contended for by the Crown as to the inferences to be drawn from that material. Its contents plainly called for express instructions from Mr Korgbara. For example, the statement said:

“It is alleged that during this conversation although the accused was suggesting that he would not be involved in the supply of drugs that he was in reality negotiating a drug deal with the undercover officer. It is also alleged that during this conversation it was the intention of the accused to use another man referred to as Mark (Raymond Emefo) to deliver prohibited drug to Hamish so that the accused was distanced from the transaction.”

24 Those were critical contentions in determining the measure of Mr Korgbara’s responsibility for the offence, but it would seem that he was not given an opportunity to consider them before the statement of facts became an agreed exhibit.

25 When the sentence proceedings were finally heard on 4 June 2007, a different representative appeared for the Crown. Some confusion arose on that occasion as to the identity of the person referred to as “Mark” in the statement of facts. Mr Korgbara had been represented by the same counsel throughout. He stated that he would call Mr Korgbara to give evidence to clarify that issue. He does not otherwise appear to have intended to call Mr Korgbara to give evidence at the sentence hearing.

26 It appears that, during his evidence, Mr Korgbara attempted to be heard as to the issue now raised as ground 1 in the appeal. He was stopped by his counsel, as disclosed in the following exchange:

[COUNSEL]

Q. There is a suggestion in the agreed facts – this may be objectionable your Honour because they are agreed facts – that some money was handed over and you got six hundred and Mark got four hundred and just before you answer that, are there any objections to that?

MOIR: Yes your Honour, there are agreed facts.

[COUNSEL]: I withdraw that your Honour. They are agreed facts and --

WITNESS: I’d like to say something about it.

[COUNSEL]: No, you’re not allowed to say anything.

WITNESS: Okay.

Q. What his Honour is concerned about or that’s the wrong word. What his Honour is asking you about – I beg your pardon your Honour, I didn’t mean it that way.

HIS HONOUR: There’s some facts in here that, I mean it just doesn’t sit with what his version is, paragraph 5 for instance.

[COUNSEL]: I’ve already spoken to him about the price with him.

HIS HONOUR: All right, what he is said to have said to Mr Emefo--

[COUNSEL]: The price is x, yes.

HIS HONOUR: Just the fact that he’s there saying “Well you go and get it from Moses, the guy that lives with Moses, get a sample from him after I introduce you to Hamish. You’ll give him the sample”. I mean it’s not him just connecting Mark, the drug dealer up with Hamish the undercover operative.

[COUNSEL]: I didn’t call him to traverse that area your Honour as your Honour knows.

HIS HONOUR: I know.

[COUNSEL]: I called him to establish who Mark was and whether he indeed knew him as Raymond.

HIS HONOUR: But all of that traverses the facts doesn’t it. The agreed facts are that there is another. Well the agreed facts actually do seem to suggest that Mark is Raymond Emefo.

[COUNSEL]: Yes your Honour they do, says so but--

HIS HONOUR: But the suggestion is that it’s Emefo who’s the supplier. He doesn’t have to go to anybody, he just is the supplier. And that this man just made the connection between effectively the supplier and the undercover operative.

[COUNSEL]: Well it doesn’t sit very well with why there was no money when he was arrested but anyway, I don’t know your Honour, it’s very murky. I can’t assist you any more. I just wanted to establish that Mark was Raymond, as far as we are concerned. It wasn’t another person.

27 During the course of his evidence, Mr Korgbara described his involvement in the offences, particularly in relation to the more serious offence relating to the large commercial quantity of ecstasy, in terms that suggested a lower level of criminality than that alleged by the Crown in the statement of facts. The inconsistency evidently was a matter of considerable concern to the sentencing Judge. His Honour had a lengthy exchange with the Crown, questioning her closely as to the level of Mr Korgbara’s involvement in the offences to be inferred from the material before him.

28 Although the position is not entirely clear, it appears that his Honour intended at the conclusion of the proceedings that day to stand the matter over for decision on 12 June 2007. On the adjourned date, however, his Honour raised further concerns with counsel for Mr Korgbara as to the respective culpability of Mr Emefo and Mr Korgbara. During those submissions, counsel for Mr Korgbara reiterated a submission he had earlier made that Mr Korgbara’s culpability was lower than that of Mr Emefo and, accordingly, that it would be open to the Court to pass the same sentence on Mr Korgbara as had been passed on Mr Emefo, notwithstanding the fact that Mr Emefo had received a greater discount on account of an earlier plea and assistance to police.

29 The Crown, in turn, repeated the submission that Mr Korgbara’s criminality should be assessed as being higher than that of Mr Emefo. The judge remarked on many occasions during his exchanges with counsel that the difference was an important consideration in the sentencing process.

30 A particular concern expressed by the sentencing Judge on that occasion was the apparent inconsistency between the Crown’s contention and the fact that the Crown had accepted a plea to the offence of aiding, abetting, counselling and procuring the supply in full satisfaction of an indictment which had alleged supply as the primary offence. His Honour formed the view that it was not fair to address those questions to counsel then appearing for the Crown, since she had not negotiated the pleas. His Honour determined to call upon counsel who had accepted the pleas on behalf of the Crown, Mr Patrick, to explain the difference between the case the Crown had proposed to run to support the charges of supply and the case the Crown maintained in support of the pleas to the charges of aiding, abetting, counselling and procuring.

31 The matter was stood in the list and in due course (on the same day) Mr Patrick appeared for the Crown in response to his Honour’s request. Mr Patrick put further submissions as to Mr Korgbara’s role in the offences. During those submissions, Mr Patrick placed considerable emphasis on the contents of the “agreed” statement of facts and observed on more than one occasion that Mr Korgbara had “signed onto” that statement. He submitted that Mr Korgbara’s agreement to the statement of facts should be understood to include acceptance of the matters “alleged” on behalf of the Crown (of the kind in the example set out above). He also made a forceful submission that the characterisation of the offences put by counsel for Mr Korgbara should not have been put at all, as it traversed the agreement on the basis of which the pleas had been accepted.

32 The judge gave his decision the following day. In his remarks on sentence, his Honour stated that the facts on which Mr Korgbara was to be sentenced were “theoretically...as per the agreed facts” but noted that there had been “some issues in relation to interpretation”.

33 The judge said:

“The factual material lays a basis for three factual conclusions. One that apart from putting the man Emefo in contact with the undercover operative, this offender played but a small role in the supplies and just sufficient to be guilty of being an aid and abetter. The second is that he was in a partnership that was somewhat fluid in terms of their responsibilities, and the third is that he was the puppet master controlling and employing Mr Emefo as a buffer between him and police.
The defence urge the first, the crown urges the last of these three interpretations. But the court has concluded that it is satisfied beyond reasonable doubt that it is the middle of the three. That is, there was a partnership between Mr Emefo and Mr Korgbara which was somewhat fluid in its arrangement, and that while as stated initially Mr Korgbara played a greater part, it is clear that Mr Emefo gained a more significant role as time went on.”

34 It can accordingly be seen that the statement of facts was critical to the fact-finding exercise on the strength of which Mr Korgbara was ultimately sentenced. It was treated, not unreasonably, as a statement the contents of which had been admitted by Mr Korgbara, when in fact they had not. It follows inexorably, in my view, that the sentencing process miscarried and that the only course is for the proceedings to be remitted to the court of trial for re-sentence.

35 I accept that this is an unfortunate outcome of a sentencing process that was attended conscientiously on behalf of the Crown and considered with great fairness and extreme diligence by the sentencing judge. I also acknowledge the pressures under which legal representatives operate in such matters, particularly where a plea is negotiated on the morning of a trial, as appears to have been the case here.

36 Nonetheless, the entitlement of an offender to contest the facts on which he or she is to be sentenced (beyond admitting the elements of the offence) is of fundamental importance to the administration of justice and must always be a paramount consideration in the sentencing process. If the Crown will not accept a plea except on a factual basis that the offender does not accept, it is always open to an offender to preserve his position by openly identifying the offence to which he would be prepared, if arraigned on it, to plead guilty and the factual premises on which such a plea would be based.

37 For those reasons, I agreed in the following orders made by the Court on 30 July 2010:

(1) that the time within which the application for leave to appeal against sentence may be filed be extended to the date on which the notice was received in the Registry.

(2) that leave to appeal be granted.

(3) that the appeal be allowed.

(4) that the sentences imposed by Ellis DCJ on 13 June 2007 be quashed.

(5) that the matter be remitted to the District Court for re-sentence.

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30/08/2010 - Judgment date entered on coversheet. - Paragraph(s) Coversheet