R v Mbonu - [2003] VSCA 52

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 207 of 2002

THE QUEEN

SAMUEL NONSO AFAM MBONU

No. 230 of 2002

THE DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

SAMUEL NONSO AFAM MBONU

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JUDGES:	BUCHANAN and VINCENT, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 March 2003
DATE OF JUDGMENT:	8 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 52

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Criminal Law – Conviction – Applicant convicted of being knowingly concerned in the importation of not less than a trafficable quantity of a prohibited import (cocaine) contrary to s. 233(1)(d) of the Customs Act 1901 – Admissibility of witness’ account of words uttered and acts done by third party said to implicate applicant – Whether that evidence in the absence of the applicant can, in conjunction with other evidence, provide a strong foundation for the inference of concerted activity to be drawn – Trial judge erred in instructing jury to consider a charge of conspiracy – Proviso – Conviction affirmed.

Criminal Law – Sentence – Applicant’s level of involvement – Factual considerations bearing upon the offence and offender – Application dismissed.

Crown Appeal – Manifest inadequacy – Sentence imposed was within the range of those available to the sentencing judge – Parity – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr D. Bugg, Q.C., DPP (Cth) Mr M.D. Phillips	Solicitor for Public Prosecutions (Cth)
For the Applicant/Respondent	Mr R. Richter, Q.C. Mr C.B. Boyce	Lewenberg & Lewenberg

BUCHANAN, J.A.:

I agree that the applications for leave to appeal against conviction and sentence by the applicant should be refused and that the Director's appeal against sentence should be dismissed for the reasons stated by Vincent, J.A.

In my view the evidence of Mnguni as to his dealings with Uche was not hearsay and the evidence of what Uche did and said when he met Mnguni was not evidence admissible against the applicant on the basis that the applicant and Uche were parties to an agreement so that the acts and words of Uche were to be considered as made and uttered with the authority of the applicant. The essence of the evidence was that after securing Mnguni's agreement to carry cocaine to Australia Uche called the telephone number of the applicant and sent a photocopy of Mnguni's passport to the applicant's facsimile number. The evidence enabled the inference to be the drawn that the applicant was a knowing participant in the transmission of cocaine by Uche to Australia. The evidence of the acts of Uche was not led as proof of the truth of an implied assertion by Uche of the participation of the applicant in a common enterprise, but as facts from which his participation might be inferred.

VINCENT, J.A.:

According to evidence subsequently given by him at the trial of the applicant, on 17 September 2000 Thenbinkosi (Ivan) Mnguni (Mnguni), a South African national was travelling to Australia for the purpose of attending some of the Olympic Games events. In the course 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 R v Mbonu

Details

AGLC: R v Mbonu [2003] VSCA 52
Case: [2003] VSCA 52
Decision Date: 8 May 2003

CaseChat Overview and Summary

The case of R v Mbonu involved the applicant, who was convicted of being knowingly concerned in the importation of a trafficable quantity of cocaine, in violation of section 233(1)(d) of the Customs Act 1901. The applicant appealed against both his conviction and sentence, as well as the crown's appeal for a manifest inadequacy of sentence. The central legal issues were whether the trial judge's instructions to the jury regarding a conspiracy charge were correct and whether the sentence imposed was manifestly inadequate.

The court examined whether the trial judge's instructions to the jury about considering a conspiracy charge were appropriate. It was determined that the judge had erred in instructing the jury to consider such a charge, as the evidence provided did not establish a strong foundation for inferring concerted activity in the absence of the applicant. However, this error did not undermine the conviction as the evidence, when considered with other factors, still provided a solid basis for the jury's decision. The court also assessed the applicant's appeal regarding the sentence, finding that the imposed sentence was within the appropriate range and did not manifest any inadequacy. The court also dismissed the crown's appeal, concluding that the sentence was within the parity expected for similar cases.

The applicant's conviction was affirmed, but the case underscored the importance of proper jury instructions in criminal trials. The sentence was upheld as appropriate, and the crown's appeal for a manifestly inadequate sentence was dismissed. The court's decision in this case highlights the need for careful consideration of evidence and adherence to legal principles in both conviction and sentencing processes.

Orders