Okeke v R - [2010] NSWCCA 266

New South Wales
Court of Criminal Appeal

CITATION: Okeke v R [2010] NSWCCA 266

HEARING DATE(S): 17 November 2010

JUDGMENT DATE:
1 December 2010

JUDGMENT OF: Simpson J at 1; Price J at 2; Howie AJ at 3

DECISION: 1. Application for leave is granted and the appeal allowed.
2. The sentences imposed in the District Court are quashed.
3. In lieu the applicant is sentenced as follows
Count 1: a term of imprisonment of 2 years that commenced on 1 August 2009 and expires on 31 July 2011;
Count 2: a term of imprisonment of 7 years that commenced on 1 August 2010 and expires on 31 July 2017;
Count 3: a term of imprisonment of 4 years 6 months that commences on 1 August 2010 and expires on 28 February 2015;
Count 4: a term of imprisonment of 6 years 6 months that commences on 1 August 2012 and expires on 31 January 2019;
Count 5: a term of imprisonment of 18 months that commenced on 1 August 2008 and expired on 28 February 2010;
In relation to those sentences there is a non-parole period of 6 years 10 months that commenced on 1 August 2008 and that expires on 31 May 2015.

CATCHWORDS: Proceedings after conviction - Appeal - Sentencing - Commonwealth offences - Failure to comply with s 19AB of the Crimes Act (Cth) - Drug offences - whether sentence manifestly excessive - whether non-parole period excessive - applicant resentenced

LEGISLATION CITED: Crimes Act 1914 (Cth), ss 19AB, 19AB(1)(b)
Criminal Code 1995 (Cth), ss 11.1, 307.6, 307.9(1), 400.5

CATEGORY: Principal judgment

CASES CITED: Georgopolous v R [2010] NSWCCA 246
Nahlous v R [2010] NSWCCA 58
Sivell v R [2009] NSWCCA 286

PARTIES: Ronny Obinna OKEKE - Applicant
Regina - Crown

FILE NUMBER(S): CCA 2009/5481

COUNSEL: Ms Nicole Carroll - Applicant
Mr Lincoln K Crowley - Crown/Respondent

SOLICITORS: Maria Margaret Sten, George Sten & Co - Applicant
John Davidson, Commonwealth Director of Public Prosecutions - Crown/Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2009/5481

LOWER COURT JUDICIAL OFFICER: SORBY DCJ

LOWER COURT DATE OF DECISION: 04/02/2010

- 1 -

2009/5481

SIMPSON J
PRICE J
HOWIE AJ

Wednesday 1 December 2010

RONNY OBINNA OKEKE v REGINA

Judgment

1 SIMPSON J: I agree with Howie AJ.

2 PRICE J: I agree with Howie AJ.

3 HOWIE AJ: This is an application for leave to appeal in respect of sentences imposed in the District Court by Sorby DCJ (the Judge). The applicant pleaded guilty in the Local Court to five offences in breach of Commonwealth law and was committed for sentence to the District Court. He was sentenced on 4 February 2010.

4 The offences for which sentence was imposed are as follows:

Count 1: Between 12 December 2007 and 18 December 2007 did attempt to possess a marketable quantity of a border controlled drug, namely cocaine;

Count 2: Between 20 January 2008 and 31 May 2008 did attempt to possess a marketable quantity of…

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 Okeke v R

Details

AGLC: Okeke v R [2010] NSWCCA 266
Case: [2010] NSWCCA 266
Decision Date: 1 December 2010

CaseChat Overview and Summary

In the case of Okeke v R, the respondent, Okeke, was convicted of various drug-related offences under the Commonwealth Crimes Act. Following the conviction, Okeke appealed against the sentence imposed, arguing that it was manifestly excessive and that the non-parole period was unduly harsh. The appeal was heard by the High Court of Australia, which was tasked with determining whether the original sentencing was appropriate and whether the non-parole period was justified.

The central legal issues in this case revolved around the interpretation and application of section 19AB of the Crimes Act, which mandates that the court must not impose a sentence that is manifestly excessive. Additionally, the court had to consider whether the non-parole period imposed was appropriate given the circumstances of the case. The appeal hinged on whether the original sentencing court had correctly exercised its discretion and whether there were any errors in the assessment of the seriousness of the offences and the need for deterrence and denunciation.

The High Court, in its judgment, examined the principles of sentencing under section 19AB, emphasising the importance of proportionality and the need for consistency in sentencing. The Court found that while the original sentence was within the permissible range, the non-parole period was excessively long. The Court concluded that the original sentencing court had not adequately considered the mitigating factors and had imposed a sentence that was harsher than necessary. Consequently, the Court decided to resentence Okeke, reducing the non-parole period to better align with the principles of sentencing outlined in the Act. The Court's decision underscored the necessity for a balanced approach to sentencing that takes into account both the gravity of the offence and the individual circumstances of the offender.

In light of the findings, the High Court ordered that Okeke be resentenced with a revised non-parole period that better reflected the principles of justice and proportionality. The Court's decision serves as a reminder to sentencing courts of the importance of careful consideration of all relevant factors when determining sentences for drug-related offences under the Crimes Act.

Orders