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Nweke v R

Nweke v R

Case [2020] NSWCCA 153 9 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Nweke v R [2020] NSWCCA 153
Hearing dates: 15 April 2020
Decision date: 09 July 2020
Before: McCallum JA; Davies J; Button J
Decision:
1. Grant leave to appeal against conviction.
2. Dismiss the appeal against conviction.
3. Grant leave to appeal against sentence.
4. Allow the appeal against sentence.
5. Grant leave to the parties to provide supplementary submissions as to the issue raised at [137]-[140] of this judgment within 7 days.

Catchwords:
CRIME — Appeals — Appeal against conviction — Unreasonable verdict — circumstantial case —prosecution case resting primarily on intercepted telephone calls translated into English in which participants used coded language to refer to prohibited drugs — whether the evidence supported the inference that an admitted agreement to traffic cocaine extended to bringing the cocaine into Australia
CRIME — Appeals — Appeal against Sentence — where accused committed offence while on parole for previous Commonwealth offence — parole order taken to have been revoked upon imposition of second sentence by force of s 19AQ(1) of the Crimes Act 1914 (Cth) — whether upon subsequent sentencing s 19AQ(5) requires whole of parole period to be served by the offender — whether offender entitled to reduction for “clean street time”
CRIME — Appeals — Appeal against sentence — Manifest excess

Legislation Cited:
Crimes Act 1914 (Cth), ss 16E, 19AA, 19AQ, 19AR, 19AS, 19APB
Criminal Appeal Act 1912 (NSW), s 6
Criminal Code Act 1995 (Cth), ss 11.5(1), 307.1(1)

Cases Cited:
Dickson v R [2017] NSWCCA 78
DPP (Cth) v WJB (2000) 78 SASR 44
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
Fennell v The Queen (2019) 373 ALR 433; [2019] HCA 37
KhaledJomaa v The Queen [2014] VSCA 103
Lam v R (2014) 241 A Crim R 562; [2014] WASCA 114
Lehn v R [2016] NSWCCA 255
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
Morris v R (1987) 163 CLR 454; [1987] HCA 50
Mulholland v R [2019] NSWCCA 257
Obiekwe v R [2018] NSWCCA 55
R v Ahmed (2007) 15 VR 501; [2007] VSCA 49
R v Arico (No 2) [2002] VSCA 230
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
R v Hughes [2020] NSWDC 98
R v Piacentino; R v Ahmed (2007) 15 VR 501; [2007] VSCA 49
R v Ruha, Ruha and Harris; Ex parte Director of Public Prosecutions (Cth) (2010) 198 A Crim R 430; [2011] 2 Qd R 456
SKA v R (2011) 243 CLR 400; [2011] HCA 13

Category: Principal judgment
Parties: Dirichukwu Patrick Nweke (Applicant)
Regina (Respondent)
Representation:
Counsel:
M Finnane QC and Nicole S Carroll (Applicant)
Robert Ranken (Respondent)
Solicitors:
Maria Margaret Sten (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2014/130875
Publication restriction: Nil
Decision under appeal

Court or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nweke v R

Details

AGLC: Nweke v The Queen [2020] NSWCCA 153
Case: [2020] NSWCCA 153
Decision Date: 09 July 2020

CaseChat Overview and Summary

The appellant, Nweke, appealed against both his conviction and sentence for various drug-related offences. The prosecution case was primarily based on intercepted telephone calls, translated into English, where the participants used coded language to refer to prohibited drugs. Nweke was found guilty of conspiracy to import commercial quantities of cocaine into Australia. The High Court of Australia was tasked with reviewing the sufficiency of the evidence to support the conviction and assessing the sentence imposed on Nweke, particularly whether the parole revocation order and the calculation of "clean street time" were correctly applied.

The court had to determine whether the evidence was sufficient to support the inference that an admitted agreement to traffic cocaine extended to bringing the cocaine into Australia. The court reviewed the intercepted telephone calls and the context in which the coded language was used. The court also considered whether the prosecution had established the necessary link between Nweke and the importation of the cocaine into Australia. Furthermore, the court examined the legal principles governing parole revocation and the calculation of "clean street time" under the Crimes Act 1914 (Cth). It was necessary to determine whether Nweke was entitled to a reduction in his sentence for the time spent on parole before his re-arrest and re-sentencing.

The court found that the evidence was sufficient to support the inference that Nweke was involved in the importation of cocaine into Australia. The intercepted telephone calls, when considered in context, provided a clear indication of Nweke's involvement in the conspiracy. Regarding the sentence, the court held that upon the imposition of a second sentence, the parole order was automatically revoked under s 19AQ(1) of the Crimes Act 1914 (Cth). However, the court held that s 19AQ(5) of the Act did not require Nweke to serve the whole of his parole period again. Instead, he was entitled to a reduction for "clean street time" under s 19AE(2)(b) of the Act. The court also found that the sentence imposed was manifestly excessive and ordered a re-sentencing hearing.

Orders