R v Basri, Okonkwo and Madubuko - [2009] NSWDC 398

CITATION: R v Basri, Okonkwo and Madubuko [2009] NSWDC 398

JUDGMENT DATE:
16 October 2009

JURISDICTION: Criminal

JUDGMENT OF: Nicholson SC DCJ

DECISION: Saripah Zamrut Binti Syed Basr:
Import commercial quantity of border controlled drug:
Sentenced to 5 years and 3 months imprisonment to date from the 25th February 2008 and expiring on the 24th May 2013. Non-parole period of 3 years and 3 months to expire on the 24th May 2011.
Ifeanyi Fidel Okonkwo:
Possess commercial quantity unlawful import border controlled drug:
Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012.
Henry Ugo Madubuko:
Possess commercial quantity unlawful import border controlled drug:
Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012.

CATCHWORDS: Criminal Law - Sentening - Commonwealth - Importing Border control drug - attempting to imkport border control drug - commericial quantity - 1.88 kilograms - sentence after trial - iimporter-courier sent by Indian based drug syndicate - drugs intercepted at arrival airport - inert material substituted for drugs - police organised controlled delivery - courier meets collectors at Bankstown hotel - sophisticated operation - courier receives modest reward - extent of role of collectors unclear - first point of contact with Austrialian distribution network - joint criminal enterprise by collectors - 17 paragraph agreed facts tendered - shortens trial - sentence mitigated for assistance to administration of justice by cooperation with prosecution - assistance to police by courier mitigates her sentence.

LEGISLATION CITED: Evidence Act 1995
Crimes Act 1914 (Cwh)
Criminal Code Act 1995

CASES CITED: R v Filippetti 13 A Crim R 335
R v Taha, unreported NSW CCA 18.2.1990
Pang (1999) 105 A Crim R 474
R v Hashmi, unreported NSW CCA 13.8.1999
R v Ghale, unreported, NSW CCA 7.7.2000
R v Chua, unreported, NSW CCA 2.3.2001
Markar [2000] NSWCCA 72

PARTIES: Regina
Saripah Zamrut Binti Syed Basri
Ifeanyi Fidel Okonkwo
Henry Ugo Madubuko

FILE NUMBER(S): 2008/8060; 2008/9319; 2008/8434

COUNSEL: Crown: D Jordan
Defence for Basri: S Russell
Defence for Okonkwo: C Watson
Defence for Madubuko: B Glennon

JUDGMENT

1. Saripah Syed Basri, (Ms Basri), is charged with importing a commercial quantity of a border control drug namely heroin into Australia on 25 February 2008. Henry Ugo Madubuko, Ifeanyi Okonkwo are each charged with attempting on 25 February 2008 to possess a commercial quantity of heroin unlawfully imported by Ms Basri.

2. All three were tried by a jury in a trial running from 8 October 2008 to 4 November 2008. The jury found each guilty on 4 November 2008. There is an unfortunate delay of nearly one year between verdict and sentence. Hearing on sentence had been scheduled during this time and I was desirous of dealing with…

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.

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Details

Case: [2009] NSWDC 398
Decision Date: 16 October 2009

CaseChat Overview and Summary

In the case of R v Basri, Okonkwo and Madubuko, the court dealt with the sentencing of three individuals involved in an importation of a border control drug. Saripah Zamrut Binti Syed Basri, Ifeanyi Fidel Okonkwo and Henry Ugo Madubuko were part of a drug importation scheme orchestrated by an Indian syndicate. Basri acted as a courier, delivering 1.88 kilograms of drugs to collectors in Australia. The drugs were intercepted, and a controlled delivery was arranged by police, resulting in the arrest of the collectors at a Bankstown hotel. The sophisticated nature of the operation and the role of each individual were key factors in determining their sentences.

The court faced several legal issues, including the extent of each defendant's involvement in the importation scheme, their respective roles, and the appropriate sentences for their crimes. The court considered the principle of joint criminal enterprise, which held that the collectors, who were the first point of contact with the Australian distribution network, were equally responsible for the importation. Additionally, the court assessed the mitigation of sentences based on the cooperation of the defendants with the prosecution and law enforcement.

In its reasoning, the court found that Basri's role as a courier, while significant, was mitigated by her cooperation with the police, resulting in a sentence of 5 years and 3 months imprisonment, with a non-parole period of 3 years and 3 months. Okonkwo and Madubuko, as collectors, were sentenced to 6 years and 6 months imprisonment each, with non-parole periods of 4 years and 2 months. The court took into account the sophistication of the operation and the defendants' roles in the importation scheme, as well as the mitigation for their cooperation with the authorities.

The final orders in the case were that Saripah Zamrut Binti Syed Basri was sentenced to 5 years and 3 months imprisonment, with a non-parole period of 3 years and 3 months, for importing a commercial quantity of a border controlled drug. Ifeanyi Fidel Okonkwo and Henry Ugo Madubuko were each sentenced to 6 years and 6 months imprisonment, with non-parole periods of 4 years and 2 months, for possessing a commercial quantity of an unlawful import border controlled drug.

Orders

Orders of the court

Saripah Zamrut Binti Syed Basr:

Import commercial quantity of border controlled drug:

Sentenced to 5 years and 3 months imprisonment to date from the 25th February 2008 and expiring on the 24th May 2013. Non-parole period of 3 years and 3 months to expire on the 24th May 2011.

Ifeanyi Fidel Okonkwo:

Possess commercial quantity unlawful import border controlled drug:

Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012.

Henry Ugo Madubuko:

Possess commercial quantity unlawful import border controlled drug:

Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Basri, Okonkwo and Madubuko [2009] NSWDC 398
JUDGMENT DATE:	16 October 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Nicholson SC DCJ
DECISION:	Saripah Zamrut Binti Syed Basr: Import commercial quantity of border controlled drug: Sentenced to 5 years and 3 months imprisonment to date from the 25th February 2008 and expiring on the 24th May 2013. Non-parole period of 3 years and 3 months to expire on the 24th May 2011. Ifeanyi Fidel Okonkwo: Possess commercial quantity unlawful import border controlled drug: Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012. Henry Ugo Madubuko: Possess commercial quantity unlawful import border controlled drug: Sentenced to 6 years and 6 months imprisonment to date from the 25th February 2008 and expiring on the 24th August 2014. Non-parole period of 4 years and 2 months to expire on the 24th April 2012.
CATCHWORDS:	Criminal Law - Sentening - Commonwealth - Importing Border control drug - attempting to imkport border control drug - commericial quantity - 1.88 kilograms - sentence after trial - iimporter-courier sent by Indian based drug syndicate - drugs intercepted at arrival airport - inert material substituted for drugs - police organised controlled delivery - courier meets collectors at Bankstown hotel - sophisticated operation - courier receives modest reward - extent of role of collectors unclear - first point of contact with Austrialian distribution network - joint criminal enterprise by collectors - 17 paragraph agreed facts tendered - shortens trial - sentence mitigated for assistance to administration of justice by cooperation with prosecution - assistance to police by courier mitigates her sentence.
LEGISLATION CITED:	Evidence Act 1995 Crimes Act 1914 (Cwh) Criminal Code Act 1995
CASES CITED:	R v Filippetti 13 A Crim R 335 R v Taha, unreported NSW CCA 18.2.1990 Pang (1999) 105 A Crim R 474 R v Hashmi, unreported NSW CCA 13.8.1999 R v Ghale, unreported, NSW CCA 7.7.2000 R v Chua, unreported, NSW CCA 2.3.2001 Markar [2000] NSWCCA 72
PARTIES:	Regina Saripah Zamrut Binti Syed Basri Ifeanyi Fidel Okonkwo Henry Ugo Madubuko
FILE NUMBER(S):	2008/8060; 2008/9319; 2008/8434
COUNSEL:	Crown: D Jordan Defence for Basri: S Russell Defence for Okonkwo: C Watson Defence for Madubuko: B Glennon