Okeke v R - [2005] NSWCCA 444

CITATION:
John Kala Okeke v Regina [2005] NSWCCA 444

HEARING DATE(S): 16 December 2005

JUDGMENT DATE:

16 December 2005

JUDGMENT OF:
Mason P at 1, 23, 25; Barr J at 2; Hall J at 24

DECISION:
Leave to appeal granted. Appeal dismissed.

PARTIES:
John Kala Okeke, Regina

FILE NUMBER(S):
CCA 2005/897

COUNSEL:
Applicant: S Kluss
Respondent: LK Crowley

SOLICITORS:
Applicant: Ross Hill & Associates
Respondent: Commonwealth Director of Public Prosecutions

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
03/11/0945

LOWER COURT JUDICIAL OFFICER:
Freeman DCJ

2005/897

MASON P
BARR J
HALL J
16 DECEMBER 2005

JOHN KALA OKEKE v REGINA

Judgment

1 MASON P: I invite Justice Barr to give the first judgment.

2 BARR J: The applicant, John Kala Okeke, applies for leave to appeal against sentences imposed in the District Court. On 4 May 2004 he pleaded guilty to two counts of attempting to possess a prohibited import, namely narcotic drugs being not less than the trafficable quantity of cocaine. His trial had been listed to commence on 3 May but shortly before that date the prosecution served additional evidence upon the defence and it became apparent to the applicant that the Crown case was stronger than he had thought. That precipitated the pleas of guilty. Judge Freeman sentenced him on each count to nine years’ imprisonment and fixed on each count a non parole period of six years. The sentences were ordered to be served concurrently.

3 On 9 and 10 February 2003 two packages from Brazil were intercepted by the Australian Customs Service at Sydney Kingsford Smith Airport. One was addressed to Stephanie Moore and the other to Mrs Loveline Phopson. The Moore package turned out, after analysis, to contain 190.3 pure grams of cocaine and the Phopson package 195.8 pure grams. The cocaine was removed and replaced and the packages reconstituted for a controlled delivery. On 11 and 13 February a man with an African accent telephoned the Strawberry Hills Post Office on three occasions to make enquiries about the two packages. The man made arrangements to collect them both on 14 February.

4 The applicant drove a courier van. He asked another driver from the same organisation to do him a favour and collect the packages from the post office and bring them to him. He supplied him with a letter purporting to be an authority signed by Ms Moore. The innocent man obliged and collected the packages. He delivered them to the applicant at the courier depot. The applicant put them into his own van and drove to the car park of a restaurant. He telephoned a co-offender, Emeka Augustine Egbue. Egbue met him there and the applicant handed him the Moore package. Egbue walked away. Police arrested Egbue in the street. A short time later they stopped and searched the applicant’s vehicle. The contents of the reconstructed package were found in it together with the remains of the wrappings.

5 On 22 September 2003 Egbue was sentenced to imprisonment for five…

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 [2005] NSWCCA 444
Case: [2005] NSWCCA 444
Decision Date: 16 December 2005

CaseChat Overview and Summary

In the case of John Kala Okeke v Regina, the applicant, John Kala Okeke, sought leave to appeal against the sentences imposed by the District Court. Okeke had pleaded guilty to two counts of attempting to possess a prohibited import, specifically narcotic drugs being not less than the trafficable quantity of cocaine. The District Court sentenced him to nine years' imprisonment on each count, with a non-parole period of six years for each count, to be served concurrently. The primary legal issues before the court were whether the sentencing judge had erred in comparing Okeke's role with that of his co-offender, whether the judge had given insufficient weight to Okeke's subjective features, and whether the sentence imposed was manifestly excessive.

The court found that the sentencing judge had not erred in comparing Okeke's role with that of his co-offender, Emeka Augustine Egbue. The judge had concluded that Okeke played a role of substance in the drug importation, whereas Egbue's role was subordinate. The court held that the differences in their roles justified differential treatment. Regarding the weight given to Okeke's subjective features, the court found that the sentencing judge had adequately considered these factors, including Okeke's dishonesty to immigration authorities and lack of expressions of contrition. The court also rejected the argument that the sentence was manifestly excessive, noting the limited data available for comparison and the fact that the sentences were within the statutory maximum.

The court granted leave to appeal but dismissed the appeal, affirming the sentences imposed by the District Court. The judges agreed that the appeal did not demonstrate any errors warranting a different outcome. The final orders of the court were to grant leave to appeal but dismiss the appeal, maintaining the sentences as originally imposed.

Orders