Omorogbe v R

[2013] NSWCCA 201

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Omorogbe v R [2013] NSWCCA 201

Hearing dates:

12 August 2013

Decision date:

17 September 2013

Before:

Macfarlan JA at 1
Adams J at 14
Latham J at 20

Decision:

Extension of time within which to file appeal granted.

Leave to appeal granted.

Appeal allowed.

Quash sentence imposed on 2 February 2012.

In lieu, the applicant is sentenced to four years' imprisonment, to date from 15 January 2011, expiring 14 January 2015, with a non-parole period of two years and six months, expiring 14 July 2013.

Catchwords:

CRIMINAL LAW - application for leave to appeal sentence - offence of attempted possession of marketable quantity of cocaine - guilty plea - whether sentence manifestly excessive - whether sentencing judge erred in not treating offence as isolated incident - whether evidence was capable of giving rise to inference appellant had engaged in prior criminal conduct - appeal allowed - sentence quashed - re-sentenced

Legislation Cited:

Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Code (Cth)

Cases Cited:

Aoun v The Queen [2007] NSWCCA 292
Hanania v R [2012] NSWCCA 220
R v Phu Long Pham (unreported NSWDC 20 January 2012)
R v Simpson [2001] NSWCCA 534 ; 53 NSWLR 704
R v Taru [2002] NSWCCA 391
Weininger v The Queen [2003] HCA 14; 212 CLR 629

Category:

Principal judgment

Parties:

George Nosayama Omorogbe - (Applicant)
Regina - (Cth Crown Respondent)

Representation:

Self-represented - (Applicant)
L Crowley - (Cth Crown Respondent)
Self-represented - (Applicant)
Solicitor for the Cth Director of Public Prosecutions

File Number(s):

2012/218689

 Decision under appeal 

Date of Decision:

2012-02-02 00:00:00

Before:

RH Solomon DCJ

File Number(s):

2011/218689

Judgment

1. MACFARLAN JA : I agree with the judgment of Adams J. I make the following additional observations on the issue upon which his Honour disagrees with Latham J. This issue concerns the sentencing judge's decision not to extend leniency to the applicant upon the basis of evidence that the applicant had, prior to committing the subject offence, attended at a newsagency and collected a package on behalf of the same person on whose behalf the applicant collected the package involved in the present offence.

1. The evidence giving rise to the issue was the following portion of a Statement of Facts tendered by the Crown at the sentencing hearing without objection:

"About 8.49am, a Record of Interview was conducted with the Offender. During the interview the Offender denied having attended any newsagency or any other post box facility to collect packages. The Offender then stated he had attended a newsagency and collected a package on behalf of Stephen Wayne on a previous occasion. The Offender provided the explanation that he was just doing someone a 'favour'. He denied being paid for his involvement in collecting packages containing narcotics".

1. In his Remarks on Sentence, the sentencing judge said the following about this evidence:

"I am satisfied the offender has in the past assisted in the collection of a parcel on behalf of the consignee, including the parcel the subject of these offences, and therefore I cannot extend to the offender the leniency I would have otherwise extended to him had this been an isolated incident".

1. In Weininger v The Queen [2003] HCA 14; 212 CLR 629, to which Latham J refers on this issue, a Statement of Facts was tendered by the Crown at the sentencing hearing without objection. This stated that the appellant, who had pleaded guilty to charges of drug importation, had told the informant:

"[T]hat he, the appellant, 'was involved in a continuing cocaine importation syndicate [of which another man was the principal] and that the syndicate had encountered difficulties with an established method of bringing cocaine into Australia from America'" (at [7]).

1. In the course of her Remarks on Sentence, the sentencing judge in that case said:

"The prisoner's prior good character in the sense that he comes before this court without any prior convictions is a matter which must receive some recognition. However, in the face of strong evidence establishing the prisoner's participation in cocaine importation by the same syndicate for some period of time before the commission of the instant offences, he cannot be treated as a first offender with the attendant leniency that that status usually attracts."

1. By majority (Kirby J dissenting), the High Court found that there was no error in the sentencing judge's approach. The plurality referred to the Court's obligation under s 16A(2) of the Crimes Act 1914 (Cth), applicable in that case (as in the present), to take into account relevant matters of specified types "known to the Court". These include matters relating to the offender's character and antecedents. The High Court concluded that this provision did not impose "a universal requirement that matters urged in sentencing hearings be either formally proved or admitted" (at [21]). It went on to say that whilst matters adverse to the interests of the accused are to be established beyond reasonable doubt and those favouring the accused on the balance of probabilities, when taken in context the sentencing judge's observations did not treat the appellant "as a person guilty of crimes with which he had not been charged", rather:

"... the primary judge was doing no more than expressing a conclusion that the absence of prior convictions did not, as ordinarily would be the case, demonstrate absence of prior criminal behaviour. ... The fact that the primary judge was not persuaded that the appellant was probably a person who had not previously engaged in drug importation or money laundering reveals no error" (at [29]).

1. In Aoun v The Queen [2007] NSWCCA 292, the sentencing judge said that he was not persuaded that the offender was a person of good character because actions of his were inconsistent with that proposition and he had associated with others who were not of good character. Hodgson JA (with whom Hislop and Latham JJ agreed), in concluding that the sentencing judge had not erred, said:

"25 ... [T]he very nature of what the applicant did in this case, including the breaking and removing of the steering column and ignition barrel of a stolen car and wiping the stolen car down with WD40 to remove fingerprints, could properly be taken as some evidence that what the applicant did on this particular occasion was not some isolated one-off aberration, but rather suggestive of familiarity with dishonest dealing with stolen cars. Although what the trial judge said in his ex tempore remarks could be understood as a positive finding to that effect, I do not understand him to have made such a positive finding, but rather to have treated that consideration, together with the applicant's association with Mr. B and others, as sufficient to justify his not being satisfied, on the balance of probabilities, that the applicant was otherwise of good character, much as the trial judge had done in Weininger. Viewed in that way, in my opinion no error is shown."

1. In the present case, the sentencing judge likewise took into account evidence as to the offender's prior conduct for the purpose of withholding from the offender the advantage of being treated as a person of good character who had not previously offended. As Weininger establishes, that course is permissible if there is material upon which it can properly be based, even though that material does not establish bad character beyond reasonable doubt. It simply needs to be such as to leave the sentencing judge unpersuaded on the balance of probabilities of the accused's good character.

1. In my view however the material before the Court in the present case did not fulfil that requirement. It did not rationally give rise to the inference that the appellant had, or may well have, engaged in earlier criminal or other disreputable conduct. I accept that the material was capable of founding a suspicion that that was so but any adverse inference beyond that would in my view be speculation. The applicant's previous newsagency collection may have been entirely innocent from his point of view. For example, Mr Wayne may have asked the applicant to collect a parcel for him to check the efficacy of steps to be taken in the later crime without communicating his purpose to the applicant. In such circumstances, the evidence could not be regarded as reflecting adversely on the applicant.

1. I note that the Statement of Facts refers to a denial by the applicant of payment for his "involvement in collecting packages [plural] containing narcotics", thereby perhaps implying that the package collected on the earlier occasion did in fact contain drugs. However the applicant did not admit that he knew that to be the case when he collected the package. Put shortly, there was nothing in the applicant's reported statement that involved an admission by him that he knew that he was doing anything wrong in making the previous newsagency collection.

1. The position was otherwise in Weininger as in that case there was evidence of a clear admission by the appellant of involvement in previous, and plainly illegal, drug importation. Likewise the Court in Aoun took the view that the evidence in question suggested previous disreputable conduct.

1. For these reasons, I agree with Adams J that the sentencing judge in the present case was not entitled to conclude that the evidence of the applicant's prior collection for Mr Wayne of a parcel from a newsagency reflected adversely on the applicant and therefore provided a basis for not treating the offence for which he was being sentenced as an isolated incident. It follows that error in the sentencing process has been established.

1. I also agree that a lesser sentence than that imposed by the sentencing judge is warranted and that the applicant should accordingly be re-sentenced as proposed by Adams J.

1. ADAMS J : I have had the advantage of reading in draft the judgment of Latham J. I am grateful for her Honour's recitation of the facts but am in respectful disagreement with her Honour's conclusion about the outcome of this appeal.

The earlier delivery

1. In respect of the significance of the earlier collection of the parcel, as Latham J pointed out, the judge said -

I am satisfied the offender has in the past assisted in the collection of a parcel on behalf of the consignee, including the parcel the subject of these offences (sic), and therefore I cannot extend to the offender the leniency I would have otherwise extended to him had this been an isolated incident.

1. There was no evidence that the first parcel actually contained drugs, as distinct, for example, from being a dry run to check whether the scheme had been detected. The statement of the applicant to the police as summarised in the statement of facts was, in substance, a denial that he had picked up a package with drugs on an earlier occasion. The concession by counsel that there "was other material that suggests [it was not an isolated incident]" does not amount to accepting that his client's denial ought not to be accepted. The judge's positive finding that this was not an isolated offence was not justified by the evidence.

1. The reference by the sentencing judge to "isolated incident" indicates, to my mind, that his Honour was of the view that this was not the applicant's first offence. If his Honour had simply meant that it was not a spur of the moment offence - since he had already collected a parcel - on a previous occasion, I do not believe that he would have referred to leniency which would otherwise have been extended. The language is typically that used when referring to evidence of previous convictions or previous offences. Although one must be very cautious about drawing inferences from exchanges between Bench and Bar, it is significant, I think, that after the judge said that the applicant would be treated as a person with no prior convictions, he commented, of the earlier receipt of a parcel, that it "was the only matter in dissonance", obviously, with taking that view.

Proposed sentence

1. Although the sentence imposed is certainly within range, it is necessary that this Court consider independently whether a lesser sentence is warranted in law. In R v Taru [2002] NSWCCA 391, the facts were somewhat more serious than here in that the appellant had a greater involvement in the receipt of the drugs, as he arranged with innocent friends to use the premises to which the drugs were addressed and where he took possession of them. I would give significant weight to the fact that the applicant is in his fifties without a previous criminal conviction of any kind. This was indeed an isolated offence. Taking into account the subjective features found by the sentencing judge and adopting his Honour's view about the presence of special circumstances, a sentence of four years with a non-parole period of two years six months is within the range and is what I would impose.

Conclusion

1. Accordingly, I would grant leave to appeal, allow the appeal, quash the sentence appealed from and substitute a sentence of four years with a non-parole period of two years six months.

1. LATHAM J : The applicant, George Omorogbe, seeks leave to appeal the sentence imposed upon him by Solomon DCJ on 2 February 2012 in respect of a charge of attempted possession of a marketable quantity of cocaine (106.4g pure), contrary to 11.1(1) of the Criminal Code (Cth).

1. The offence carries a maximum penalty of 25 years' imprisonment. The applicant received a sentence of 5 years' imprisonment, including a non- parole period of 3 years.

1. The applicant requires an extension of time within which to file the application for leave to appeal. The respondent does not oppose the grant of an extension of time.

The Offence

1. On 5 October 2010 a private mailbox in the name of Stephen Wayne was leased by a male of African appearance at a newsagency in Engadine. The male produced a false New South Wales drivers licence in the name of Stephen Wayne when leasing the box.

1. On 14 January 2011 the owner of the newsagency contacted Australian Federal Police (AFP) and advised them of an express mail package sent from China to Stephen Wayne. The sender of the package was a company located in Zhengzhou, China.

1. Police attended the newsagency, seized the package and examined the contents. There were 169 women's purses, each individually wrapped in plastic. Inside six of the purses police found a concealed quantity of white powder. Of the 254.6 g of white powder 42% was pure cocaine.

1. Later that day the applicant attended the newsagency to collect the package. He was in possession of a delivery collection slip for the package. He was shown to the rear of the premises where a member of the AFP posing as an employee of the newsagency presented her identification and arrested the applicant. The applicant ran from the shop but was detained by other AFP members a short while later. At that time the applicant had the key for the relevant private mailbox in his hand.

1. The applicant was interviewed by police and denied attending the newsagency to collect the package. Later in the interview he claimed he was doing a favour for someone and that he had previously collected a package addressed to Stephen Wayne. He claimed he had received a telephone call from someone asking him to collect the package and that the key to the postbox had been placed under his door. He denied being paid to collect packages containing drugs. He denied any knowledge that the package he attempted to collect contained drugs.

The Sentencing Exercise

1. In the course of sentencing, his Honour noted the maximum penalty, that the total pure quantity of cocaine was 106.4 g (more than 50 times the threshold for a marketable quantity of cocaine), that the street value of the cocaine was estimated at between $76,000.00 and $85,120.00, and that the wholesale value was estimated at $40,500.00.

1. His Honour characterised the role of the applicant as a "collector" and was not satisfied that the applicant's purpose was anything other than to collect the drug for persons unknown.

1. At the time of the applicant's arrest he was in possession of $805.00 in cash which his Honour found was the applicant's payment for collecting the package.

1. Ultimately, his Honour found that the offence was at the lower end of the scale of objective seriousness, but noted that persons who collect drugs play a necessary role in the dissemination of drugs into the community.

1. His Honour said :-

I am satisfied the offender has in the past assisted in the collection of a parcel on behalf of the consignee, including the parcel the subject of these offences (sic), and therefore I cannot extend to the offender the leniency I would have otherwise extended to him had this been an isolated incident.

Subjective Circumstances

1. The applicant was born in Nigeria in 1954. He came to Australia in 2007 for the purpose of improving life for his wife and two children, who remained in Nigeria. His upbringing in Nigeria was described as tragic. It was accepted that the applicant would have difficulty serving his sentence because of his isolation from his family.

1. The applicant wrote a letter to the judge expressing his contrition, which his Honour accepted. He pleaded guilty at the earliest opportunity and was accorded a 25% discount for his plea. He had no prior convictions. He was in debt at the time and was an illegal immigrant. He had no history of drug use or addiction and no relevant illness apart from high blood pressure. He had used his time since his arrest to improve himself within the prison system. His Honour found that he was unlikely to re-offend.

The Grounds of Appeal : Insufficient Weight to Subjective Circumstances and Manifest Excess

1. These two grounds may be dealt with together. The ground complaining that the judge gave insufficient weight to the applicant's age, health and prior good character is essentially an argument advanced in support of the ground of manifest excess : Hanania v R [2012] NSWCCA 220 at [33].

1. A report under the hand of a psychologist which was tendered on the sentencing proceedings set out in detail the applicant's family history, his education, his relationship, employment and health history and his current circumstances.

1. During his Honour's remarks on sentence his Honour said :-

I have regard to the offender's background. The offender has no criminal record. The offender was born in Nigeria in 1954. The offender was orphaned at the age of two years and was brought up by his uncle in difficult circumstances. The offender left school at the age of 12 and then left his uncle's home and commenced work and paid for his high schooling. The offender has been married twice. The offender's first wife died in tragic circumstances when he she was shot in a drive-by shooting in Nigeria. The offender brought up the four children of that union. The offender remarried and has a wife and two children in Nigeria. The offender at the age of 52 came to Australia and at the time of the commission of the offence was an illegal immigrant. The offender came to Australia for the purpose of improving the lot of his family. The offender has no history of drug use or addiction, however the offender is presently on medication for high blood pressure.

1. All of these matters were contained within the psychological report. There is no substance to the submission that his Honour failed to have adequate regard to the applicant's subjective case.

1. None of these factors entitled the applicant to any particular leniency. He was not a youthful offender. To the extent that the applicant reported depression, anxiety and stress, these symptoms were a product of his incarceration and his isolation from his family. There was no submission made on the applicant's behalf that he suffered from any cognitive deficit or any relevant mental illness that might reduce the appropriate emphasis on general deterrence.

1. The other material tendered in the applicant's case on sentence included a letter from the applicant, a number of certificates attesting to the applicant's progress in custody and the Justice Health records relating to the applicant. The letter from the applicant primarily expressed his contrition and remorse, which was accepted by the judge. There is no basis for the submission that the judge failed to consider the combination of this material for the purposes of sentence.

1. One controversial aspect of the remarks on sentence remains. In the passage set out at [32] above, his Honour clearly states that the applicant was not entitled to leniency on the basis that he had previously taken possession of a package containing an illegal substance. This appears to be a reference to the contents of a record of interview between the applicant and the police on the morning of the applicant's arrest. In the course of that interview the applicant stated that he had attended the newsagency and collected a package on behalf of Stephen Wayne on a previous occasion. The applicant did not however admit that he knew or believed that the package contained illegal drugs.

1. It is accepted that such a finding could only have been made from the combination of circumstances, including the fact that the private mailbox was opened on 5 October 2010 by a male of African appearance in a false name, following the production of false driver's license.

1. It is also relevant to note that in an exchange between the judge and the applicant's counsel, it was acknowledged by counsel that, whilst the applicant had :-

made an assertion that it is an isolated incident, ............. There's other material that may suggest that is not the case. ......... That's about as far as I can take that. He of course has not been convicted of any other matters - and he's still entitled to the leniency of - to the extent that he is entitled to leniency, for no prior convictions. I accept the principle so that - he's still entitled to that leniency.

1. This concession appears to recognise what the plurality (Gleeson CJ, McHugh, Gummow and Hayne JJ) said in Weininger v The Queen [2003] HCA 14 ; 212 CLR 629 at [18] to [21] (citations omitted) :-

In R v Olbrich, the Court examined a number of questions relating to fact finding in sentencing, usually discussed under the rubric of the onus and standard of proof in sentencing. As the joint reasons point out, "[r]eferences to onus of proof in the context of sentencing would mislead if they were understood as suggesting that some general issue is joined between prosecution and offender in sentencing proceedings". The Court adopted what was said by the majority in the Court of Appeal of Victoria, in R v Storey, that a sentencing judge:

"may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities."

For present purposes, however, attention to questions of onus and standard of proof may distract attention from another important aspect of the decision in Olbrich. Framing the question in terms of the onus and standard of proof may suggest that all disputed issues of fact related to sentencing must be resolved for or against the offender. That is not so. As was recognised in Olbrich, some disputed issues of fact cannot be resolved in a way that goes either to increase or to decrease the sentence that is to be imposed. There may be issues which the material available to the sentencing judge will not permit the judge to resolve in that way.

It had been submitted in Olbrich that, in sentencing a person knowingly concerned in the importation of narcotic drugs into Australia, it was necessary to classify that person's participation in the importation as that of a principal or a courier, and it was further submitted that, if it was not established beyond reasonable doubt that the offender was a principal, the offender should be sentenced as a courier. As the majority pointed out in Olbrich, prosecuting authorities and a sentencing judge will often have only the most limited and imperfect information about how it was that the accused came to commit the offence for which he or she is to be sentenced. Although s 16A(2)(a) requires a sentencing judge to take account of the nature and circumstances of the offence, that requirement is not absolute. They are to be taken into account only to the extent that they are relevant and known to the court. The sentencing judge may not be able to make findings about all matters that may go to describe those circumstances. In particular, an offender may urge a particular view of the nature and circumstances of the offence, favourable to the offender. The sentencing judge may be unpersuaded that the view urged is, more probably than not, an accurate view of the circumstances. In such a case, it is not correct that the judge is bound to sentence the offender on that favourable basis, unless the prosecution proves the contrary beyond reasonable doubt. Accordingly, in the particular facts of Olbrich, where the offender asserted that he was no more than a courier of the drugs, but the sentencing judge disbelieved him, it was neither necessary nor appropriate to sentence him on the basis that he was a courier.

To frame the relevant question in terms of the onus and standard of proof may also suggest that the only material which may be treated as being "known to the court", and on which the judge may act in sentencing an offender, is material revealed by the plea or verdict of guilty, admission by the offender, or evidence received on the sentencing hearing. The use of the phrase "known to the court", rather than "proved in evidence", or some equivalent expression, suggests strongly that s 16A was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase "known to the court" should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted. (italics not in original)

1. His Honour did not sentence the applicant for anything other than one offence and did not regard any previous occasion as an aggravating factor. His Honour was obviously not persuaded that the applicant's assertion that this was an isolated incident ought be accepted. There is no basis for concluding that his Honour increased the sentence above what was otherwise appropriate. Accordingly, there was no error in the approach ultimately adopted by the judge.

1. In support of the ground of manifest excess, the applicant draws attention to five matters in the District Court relating to drug offences in January and February 2012. Two of the five cases refer to charges of manufacture and possession. Two refer to charges of importation of amounts of cocaine and ecstasy in excess of 1 kg.

1. One case refers to a charge of attempt possess 1.3 kg of cocaine (pure). In that case, the offender received a combined discount of 45% for his plea and assistance, resulting in a sentence of five years' imprisonment with a non-parole period of two years and six months : R v Phu Long Pham (unreported NSWDC 20 January 2012).

1. A further schedule of cases said to be comparable with the applicant's case reveals twenty decisions of the Queensland, Victorian and NSW courts dealing with charges relating to the importation of marketable quantities of drugs. Of the seven cases in the schedule that relate to attempt possession of a marketable quantity of a prohibited import, there are three cases that are in the order of 100 g of either cocaine or heroin. Only one of those cases received a lesser head sentence (4 years and 9 months) than the applicant, although the non-parole period was the same : R v Taru [2002] NSWCCA 391. An appeal against severity was dismissed.

1. The applicant's counsel at sentence handed up written submissions which stated that the decision in Taru provided "significant guidance to the court in determining the appropriate sentence." This submission was obviously accepted by the judge.

1. The applicant has not demonstrated that the sentence imposed was plainly unjust.

1. Since drafting these reasons, I have had the advantage of reading the judgments of Macfarlan JA and Adams J. If it be assumed that his Honour did fall into error in the manner identified by Macfarlan JA and Adams J, contrary to my view, this Court has stated on numerous occasions since R v Simpson [2001] NSWCCA 534 ; 53 NSWLR 704 at [79] that error does not automatically trigger a re-sentencing exercise. Section 6(3) of the Criminal Appeal Act 1912 has significant work to do. The fact that the sentence imposed is within the appropriate range does not preclude this Court from reaching the conclusion that some lesser sentence is warranted in law. However, in all of the subjective and objective circumstances of this case, I would not reach that conclusion.

1. The orders I propose are :-

(1)   Grant an extension of time within which to file the appeal.

(2)   Leave to appeal granted.

(3)   Appeal dismissed.

Decision last updated: 17 September 2013