R. v Echefu
[2020] VCC 123
•21 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02428
| THE QUEEN |
| v |
| PRINCEWELL CHINATU ECHEFU |
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JUDGE: | HER HONOUR JUDGE BRIMER | |
WHERE HELD: | MELBOURNE | |
| DATE OF HEARING (TRIAL): DATE OF HEARING (PLEA): | 2, 3, 4, 5 & 6 December 2019 | |
DATE OF SENTENCE: | 21 February 2020 | |
CASE MAY BE CITED AS: | R. v. Echefu | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 123 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.B. Saunders (trial, plea & sentence) | CDPP |
| For the Accused | Mr M.P. McGrath (trial, plea & sentence) and Mr W. Blake (trial) | Slades & Parsons |
HER HONOUR:
1 Princewell Chinatu Echefu, you pleaded not guilty before the jury panel on 2 December 2019 to one charge of importing a commercial quantity of a border controlled drug contrary to subsection 307.1 (1) of the Criminal Code (Cth). You were found guilty by jury verdict on 6 December 2019. The maximum penalty for this offence is life imprisonment.
2 I have had regard to the written submissions on sentence dated 16 January 2020 tendered on behalf of the Crown, and the written defence plea submissions dated 23 January 2020 tendered on your behalf. I have also had regard to the oral submissions made on your plea.
Circumstances of the offending
3 On 11 August 2018, you left Melbourne and travelled to Malaysia for seven days. On 19 August 2018, you arrived back at Melbourne Tullamarine Airport on an Air Asia flight from Kuala Lumpur. You completed an incoming passenger card, declaring that you were not in possession of any prohibited goods.
4 At approximately 8:33 am, Australian Border Force Officer, Officer Power spoke to you at the primary line. He selected you for a baggage examination. After you collected your baggage, you were directed into the baggage examination area.
5 At approximately 9.02 am you told Officer Power that you completed the incoming passenger card and signed it. You confirmed that you packed your bags yourself and that you were fully aware of the contents of the bags.
6 During the baggage examination and towards the bottom of the suitcase, Officer Power located four foodstuff packages within your baggage. The packages purported to contain sachets of Milo, Ovaltine, Nestum and Monster Noodles. Inside the packages was a crystalline substance later found to contain methamphetamine. The weight of the packages was approximately 4760 g.
7 Subsequent examination showed that the packages weighed significantly more than the advertised weight of the food items on the packaging. One of the packages weighed almost six times its advertised weight. You told Officer Power, when he asked what was in the first package, that ‘it is what it says’ and that ‘it is a gift’. You acknowledged the presence of the packages in your baggage and said that they were gifts.
8 The net weight of the crystalline substance was 3985.50 g. Analysis showed the crystalline substance to be approximately 79 % pure, making a total weight of 3171.4 g of methamphetamine. A commercial quantity of methamphetamine is 750 g.
Investigation, arrest and interview
9 After the first package was found by Officer Power, he cautioned you and advised you of your rights. You later answered no comment to a recorded conversation with Officer Power. Later that day you were interviewed by the Australian Federal police and exercised your right not to answer questions.
Pre-sentence detention
10 You have been in custody since 10 August 2018. You have 551 days of pre-sentence detention to be reckoned as having been served under this sentence.
Prior Convictions
11 You have one prior conviction. On 25 February 2013, you were convicted in the Magistrates’ Court at Melbourne of trafficking a controlled drug namely heroin, in 2013. This matter involved the purchase of heroin from you for $40,000 and $80,000.
Personal circumstances
12 You are 50 years old. You were born in Nigeria, one of eight children and completed high school there. Your father was in the military and then in private business. Your mother raised the family and sold clothing. You came to Australia in 2000 via South Africa. You are an Australian Citizen.
13 After arriving in Australia you began a relationship with Ms Lori Van Dore. Together, you have a son, Elijah, who was born in 2001. You have now lost contact with Ms Van Dore and Elijah. You have another son Christian, about 13 years old, to a former partner.
14 You are in a relationship with Ms Blandine Hikolo and have been since 2012. Both Ms Hikolo and her daughter Erica, 18 years, are supportive of you.
Ms Hikolo studied nursing and works as an aged care attendant. You both intend for this relationship to continue.
15 You have worked previously as a security guard. You started a business buying used car parts for sale from Malaysia in around 2010 and travelled to Malaysia frequently.
Relevant sentencing principles
16 You are to be sentenced in accordance with the relevant provisions of part 1B of the Crimes Act 1914 (Cth).
The nature and circumstances of the Offence
17 The offence is to be viewed as being of the utmost seriousness. (Nguyen & Phommalysack v The Queen (2011) 31 VR 673). The prescribed sentence, the amount of the drug and its value underscore the seriousness of this crime.
18 The prescribed maximum penalty for this offence is life imprisonment. The quantity of the methylamphetamine you imported was over 4.25 times the commercial quantity applicable to methylamphetamine. The wholesale value of the importation is estimated to be between $312,000 and $507,999 and the street value between $996,375 and $2,391,300.
19 Where it is capable of being discerned, your role is of great importance in assessing the objective criminality of the offence.[1] You gave evidence at trial that Mr Mon, a preacher at a church you attended in Malaysia and with whom you had developed a relationship of trust over time, asked you to bring the packages to Australia. You said he asked you to bring them for his brother, because his brother’s luggage was overweight. You gave evidence that you trusted Mr Mon, and did not think the packages would contain anything other than what they purported to contain.
[1]Nguyen & Phommalysack v The Queen (2011) 31 VR 673 at [34].
20 Mr Saunders put to you in cross-examination that you lied about being given the packages, that you intended to smuggle the packages through customs and that they were at the bottom of your suitcase because you had hoped they would not be detected. He contended that the jury must have rejected your evidence and, consistent with the directions given to them, put your evidence to one side and considered whether the prosecution had proven your guilt beyond reasonable doubt on the basis of the evidence they did accept.
21 Mr Saunders submitted that you ought be sentenced on the basis that your role was the attempted safe and undetected importation of the drugs into Australia.[2]
[2]R v Olbrich (1999) 199 CLR 270 [19]-[21]. The offender is to be ‘sentenced for what he had done.’
22 He contended that the other evidence in the trial suggests that you had knowledge of the source and quantity of the drugs and that I ought infer that your motivation was financial gain. The quantity of the drugs imported leads unequivocally to that inference being drawn. This increases the seriousness of the offending.
23 Mr Saunders relied on a passage of Maxwell P in Nguyen & Phommalysack v The Queen (2011) 31 VR 673 at [34], that:
“6. As a matter of common sense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit…”.
24 Whilst Mr McGrath accepted that the jury verdict is a finding that you were reckless as to the substance being a border controlled drug, it is unclear whether the verdict was reached on the basis that you were aware of a substantial risk that the substance was a border controlled drug and that, in the circumstances as you knew them to be, it was unjustifiable to risk importing the substance, rather than that you knew or believed that the substance imported was a border controlled drug. It could not be said that the jury rejected all of your evidence out of hand. Mr McGrath conceded that you attempted the safe and undetected importation into Australia of the drugs. He disputed that the evidence suggests that you had knowledge of the drugs or their source.
25 In respect of motivation, Mr McGrath submitted that I could not be satisfied beyond reasonable doubt that you knew or believed that you were importing a border controlled drug for the purpose of inferring it was for financial gain.
26 I accept Mr McGrath’s submission that I cannot be satisfied beyond reasonable doubt that you knew or believed that there were drugs in the packages so as to find that you were motivated by financial gain, thus increasing the seriousness of the offence.
27 I have considered the passage referred to by Mr Saunders in Nguyen & Phommalysack regarding the drawing of an inference of motivation for financial gain. In that case, there was no issue that the offenders knew or believed that the substances were drugs and that this was the basis upon which they were sentenced.
28 You were, however, at least reckless as to the parcels in your luggage containing a border controlled drug. You handled the packages in circumstances where they weighed significantly more than the stated weights on the packets. At the very least, you were aware of a substantial risk that the substance contained in the packages was a border controlled drug and that, in the circumstances as you knew them to be, it was unjustifiable to risk importing the substance. Your moral culpability must still be viewed as high.
Contrition/Early Plea of guilty
29 Mr McGrath accepts that you are not entitled to a discount for a plea of guilty, having been convicted by a jury following a trial in this court. Mr McGrath noted that you elected to go straight to trial without a committal, that the evidence took only four days and that the issue in dispute was confined to one element of the offence, to which I have had regard.
30 I do not aggravate your penalty because you pleaded not guilty, but your facilitation of the course of justice and the utilitarian value of that is limited by your not guilty plea. I accept Mr Saunders' submission that there is no material before me on which I can find remorse or contrition for the offending.
Specific Deterrence
31 Specific deterrence is engaged as a sentencing consideration in your case. You have a prior conviction for trafficking a controlled drug, namely heroin, in 2013. As I said, this matter involved the purchase of heroin from you for the not insignificant sums of $40,000 and $80,000.
32 In considering a sentence of appropriate severity in all of the circumstances, I have had regard to the need to impose a sentence that will deter you from committing further offences in the future.
General deterrence
33 General deterrence is of paramount importance in sentencing in respect of this offence:
“The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on sentence and that stern punishment will be warranted in almost every case…. Maxwell P in Nguyen & Phommalysack at [34]
34 The sentence I impose must be of severity sufficient to deter others from engaging in illicit drug and related criminal activity.
Need for adequate punishment
35 The Crown submitted that a substantial sentence of imprisonment is the only available sentencing option. Mr McGrath conceded that sentences of some length in the order of high single to low double figures are routinely imposed and have application in this case.
Character
36 I have had regard to the letter dated 16 January 2020 from your partner,
Ms Hikolo, and her belief, based on your support of both her and her daughter, that you are a good man despite the current incident.
Prospects of rehabilitation
37 Mr McGrath submitted that I ought take into account that prior to your incarceration you were in a stable relationship, you were running a business and you have Ms Hikolo’s continuing support. She and her daughter visit you regularly.
38 Whilst in custody, you have worked by delivering food to the protection prisoners. You use your earnings to pay for phone contact with your family in Nigeria. You have had no incidents whilst in prison, and have had clean urine screens.
39 I accept that you have the support of Ms Hikolo and her daughter, and you are demonstrating your capacity for work whilst in prison and that these are positive, albeit limited protective factors. Your prospects of rehabilitation are, however, somewhat tempered by your prior drug offence of trafficking.
Comparative cases
40 Intermediate appellate courts must have regard to sentencing decisions of other intermediate appellate courts in comparable cases as ‘yardsticks’ that may serve to illustrate (although not define) the possible range of sentences available The Queen (Cth) v Pham [2015] HCA 39 at [17]-[18].
41 The Crown provided me with a schedule of comparative cases and authorities in other jurisdictions to which I have had regard as guidance for the purpose of achieving consistency in the sentencing of federal offenders. I have also had regard to the recent Victorian Supreme Court of Appeal importation cases provided to me by
Mr McGrath for the same purpose.
42 I have considered the matters which I must take into account in section 16A of the Crimes Act 1914 (Cth), balanced the competing sentencing considerations and considered comparable cases, their similarities and differences as yardsticks.
43 Mr Echefu, on Charge 1, I sentence you to a term of imprisonment of 10 years with a non-parole period of 7 years. I declare that there are 551 days of pre-sentence detention to be reckoned as having been served under this sentence.
44 I am required under s.16F of the Crimes Act to tell you, Mr Echefu, that the service of the sentence will entail a period of imprisonment of not less than the non-parole period, which in your case is seven years, and then there will be a period of service in the community called the parole period should a parole order be made. If a parole order is made, the order will be subject to conditions, may be amended and revoked, and consequences may follow if without reasonable excuse the conditions are not fulfilled.
45 I will also cause and ask Mr McGrath, your counsel, to explain those matters to you as well. Mr McGrath, will you do that please?
46 MR McGRATH: I'll be seeing Mr Echefu in the cells after Your Honour has concluded and I will explain those matters to him.
47 HER HONOUR: Yes, thank you, Mr McGrath. You may be seated, Mr Echefu. Mr Saunders, are there any other matters that I need to deal with or to address?
48 MR SAUNDERS: No, thank you, Your Honour.
49 HER HONOUR: Do I need to direct that the sentence is to commence today under the legislation?
50 MR SAUNDERS: Yes. There's no accumulation but as a matter of safety, yes.
51 HER HONOUR: Yes. I will direct that the sentence commences today.
Mr McGrath, do you wish to speak to Mr Echefu before he goes down to the cells?
52 MR McGRATH: No, I'll be coming straight down to see him, Your Honour.
53 HER HONOUR: All right. Mr Echefu can leave.
54 MR McGRATH: Your Honour, this doesn't need to be raised in front of my client, but when Your Honour has the opportunity if the sentencing remarks could be made available. I was taking notes, but if they could be made available via email to both parties that would be of assistance.
55 HER HONOUR: Yes. As soon as I am able to revise them.
56 MR McGRATH: Of course.
57 HER HONOUR: Then that will be done.
58 MR McGRATH: I'm very grateful. Thank you, Your Honour.
59 HER HONOUR: Unless there are any other matters, we will adjourn.
60 MR McGRATH: No, Your Honour.
61 HER HONOUR: Thank you.
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