R v Natte Brown Wedi
[2018] VCC 2
•25 January 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-14-02232
| The Queen |
| v |
| Natte Brown Wedi |
---
JUDGE: | Her Honour Judge Lewitan | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 December 2017 | |
DATE OF SENTENCE: | 25 January 2018 | |
CASE MAY BE CITED AS: | R v Natte Brown Wedi | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2 | |
REASONS FOR SENTENCE
---
Subject: Importation of border controlled drug (methamphetamine) by proxy
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | Ms K. Breckweg | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Saunders | Valos Black & Associates |
HER HONOUR:
1 Natte Brown Wedi, you have been convicted, after trial, of one charge of import a commercial quantity of a border controlled drug contrary to subsection 307.1(1) of the Criminal Code (Cth) by virtue of section 11.3 of the Criminal Code (Cth). The maximum penalty for this offence is imprisonment for life.
2 You imported 2914.3 grams of pure methamphetamine into Australia on 25 December 2013, by proxy.
3 The importation involved an elaborate ruse in which couriers, Rina Lemi (Lemi), Noura Douka (Douka) and Monica Harris-Peters (Monica) (the event promoters) were recruited in Australia to travel to South Africa for the purported purpose of carrying out event promotion work there. Unbeknown to them, you and Essa Harrison (Harrison) planned to plant a commercial quantity of methamphetamine within luggage to be carried by the event promoters on their return flight to Australia.
4 Between October and November 2013, you and Harrison held a meeting with the event promoters. You and Harrison actively recruited and organised the trip, including recruiting the event promoters, arranging the transfer of money to various overseas destinations, negotiating the travel and accommodation costs and paying for return air fares for the event promoters.
5 In late November 2013 the event promoters were flown to Johannesburg South Africa where you and Harrison engaged them in a charade of having them distribute flyers for a fictitious promotional event.
6 On 12 December 2013 Harrison left Johannesburg and flew to Sydney, Australia. He arrived on 13 December 2013 and flew to Melbourne later that day.
7 Monica flew back to Melbourne on 18 December 2013. When she was due to check in for her flight in Johannesburg, you told her to check in a bag that did not belong to her. Upon her arrival in Melbourne, you contacted Monica and arranged for the bag to be collected by your associate ‘Jason’.
8 On 25 December 2013 Douka and Lemi arrived in Melbourne on a Singapore Airlines flight from Johannesburg.
9 Prior to leaving, you had given Lemi a suitcase to take back to Australia for you. Lemi had checked in the suitcase, but it was in the possession of Douka at the time of the baggage examination following their arrival into Melbourne, Australia.
10 When searched by Customs officers at Melbourne Airport, the hard-sided suitcase was found to contain 2914.3 grams of pure methamphetamine concealed inside a plastic bag located behind the internal lining of the suitcase.
11 In Nguyen v R; Phommalysack v R[1] Maxwell P referred to the following principles relevant to sentencing for drug importation offences as set out in Nguyen v Pham[2]:
[1] (2011) 31 VR 673, [34].
[2] (2010) 205 A Crim R 106, [72].
1. The criminality of an offender must be assessed by consideration of the involvement of the offender in the steps taken to effect the importation. Where it is capable of being discerned, the role played by the offender is of great importance in assessing the objective criminality of the offence.
2. Problems may emerge when a sentencing court attempts to categorise the role of the offender in the drug enterprise, as in many cases the full nature and extent of the enterprise is unlikely to be known to the court.
3. It is the criminality involved in the importation which must be identified. The fact that another person may be characterised as the “mastermind” does not mean that a person who was responsible for managing the importation into Australia is properly described as having only a middle level of responsibility.
4. Although the weight of the drug imported is not the principal factor to be considered when fixing sentence, the size of the importation is a relevant factor and has increased significance when the offender is aware of the amount of drugs imported.
5. Ordinarily, the amount of the drug involved in an importation is a highly relevant factor in determining the objective seriousness of the offence. In many cases, the only factor that would lead to a determination that one importation is worse than another would be the amount of drug involved where otherwise the circumstances of the importation were the same or very similar.
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.
7. The difficulty of detecting importation offences, and the great social consequences that follow, suggest that deterrence is to be given chief weight on a sentence and that stern punishment will be warranted in almost every case.
8. The sentence to be imposed for a drug importation offence must signal to would-be drug traffickers that the potential financial rewards to be gained from such activities are neutralised by the risk of severe punishment.
9. Involvement at any level in a drug importation offence must necessarily attract a significant sentence. Otherwise the interests of general deterrence are not served.
12 The facts in this case are extremely serious. The quantity of pure methamphetamine imported into Australia was 2.9143 kilograms which was 3.8 times the commercial quantity of 750 grams applicable to methamphetamine. You were involved in an elaborate plan to import the methamphetamine which included incurring the costs associated with the travel for the three event promoters and for yourself and Harrison. You gave the bag containing the border controlled drug to Lemi and took out a number of items of clothing when the bag was too heavy. At that stage the bag was 2 – 3 kilograms over the weight limit notwithstanding that it contained only 15 t-shirts and a coat hanger on arrival into Australia. You were aware of the contents and the weight of the suitcase given you paid for the excess baggage charges.
13 I accept the Crown’s submission that you were a principal organiser of the importation. You and your brother Sam Wedi were responsible for organising and executing the plan to import methamphetamine from South Africa. You asked Harrison to recruit “event promoters” and gave him instructions. You also asked your then girlfriend, Douka, to assist you in finding appropriate girls who may be interested in the venture. You decided which girls would be recruited for the trip. Ultimately, Lemi, Douka and Monica travelled to South Africa. Two other girls were also selected but they declined to travel on the day of departure. You gave Harrison, Douka and Martin Pawlowski money to transfer on your behalf to individuals overseas. You gave Lemi a Japan Express suitcase on her departure from South Africa, asked her to check it in and bring it to Australia and paid extra to have the suitcase checked in. You assumed this role after Harrison had left South Africa unexpectedly on an earlier occasion. On arrival at Melbourne airport, the suitcase was found to contain 2.9143 kilograms of pure methamphetamine. The Crown case was put on the basis, and the jury accepted, that you intended to import the drugs into Australia via Lemi as you knew the suitcase you gave to Lemi contained a border controlled drug. Your role was vital to the overall success of the venture which involved the exploitation of innocent young women and the exposure of these women to detection by authorities both in Australia and overseas.
14 You have not expressed any remorse.
15 As has been pointed out by your counsel, there are however some mitigating factors.
16 I have been told something of your personal history and your circumstances. You were born in the Democratic Republic of Congo on 29 December 1989 and are now 28 years old. At the time of the offence you were 22 years old.
17 Your father is a pastor and counsellor in the church. Your mother passed away in 2015 and was employed in child care. You are the youngest male in a sibship of seven. You have three older brothers, one older sister and two younger sisters. As the youngest male in the family, you were bullied by your brothers.
18 You arrived in Australia in 1996 when the bulk of your family emigrated from the Democratic Republic of Congo. You were five years old. You described a very strict and controlled upbringing due to your father’s involvement in church as a pastor and the beliefs held by your parents. You had minimal social life outside the family home. You were encouraged to focus on your studies and music.
19 You attended two primary schools and a number of secondary schools, completing Year 12 at Heatherdale Christian College. You were bullied at school.
20 After leaving school, you completed a Certificate in Business Entertainment Management before enrolling at Victoria University in Legal Practice. You did not complete that degree. In 2014 you enrolled in Conveyancing Law at Melbourne Polytechnic however this course was disrupted by the impending trial in these proceedings.
21 You completed courses in hospitality at William Angliss College and obtained Certificates I, II, and III in Hospitality Operations, Responsible Service of Alcohol and Retail Operations.
22 You have worked in a number of full and part time positions. You were employed as a chef at Café Italia 2009, and as a sales consultant and a packer in 2013. At this time you also operate your own promotions and events Company called “No Limits Entertainment.”
23 On 30 July 2016 your previous partner, Theodora, gave birth to a daughter. You have not seen or had any real contact with your daughter.
24 You have admitted before me to prior convictions. There are four such convictions, involving three court appearances between 2010 and 2012. I accept your counsel’s submission that your criminal history is not extensive.
25 I have been informed of certain subsequent convictions. On 11 February 2014 you were convicted in the Melbourne Magistrates' Court of one charge of recklessly cause injury and one charge of intentionally damage property. You were fined an aggregate of $2500. These offences occurred in the course of an argument with your former girlfriend. On 16 June 2015 you were also charged with commit indictable offence whilst on bail.
26 On 26 June 2014 you were arrested and charged with conspiracy to import a commercial quantity of a border controlled substance. The conspiracy alleged involved your older brother, Sam Wedi who stood trial in this Court and was sentenced for the importation of a commercial quantity and a conspiracy to bring drugs from China. The offending in which you were involved was arranging for transfers of money to various people who lived overseas as directed by your older brother. You were originally charged with conspiracy to import methylamphetamine which was brought against your older brother Wedi Bembo but the matter resolved to a plea. On 13 March 2015 you were convicted and sentenced for one charge of person failing to comply with order to assist with access to computer data and one charge of dealing with proceeds of crime of $10,000 or more (the subsequent drug related offences). Judge Lawson sentenced you to imprisonment for 260 days (the 260 days). She declared that the period that you had spent in custody, namely 260 days, be reckoned as a period of imprisonment already served under that sentence. You were released after 260 days upon entering into a good behaviour bond for two years under s.20(1)(B) of the Crimes Act 1914 (Crimes Act).
27 In relation to this charge, you had been arrested on 8 January 2014. You were bailed in this matter on 21 March 2014. On 26 June 2014 you were arrested and remanded on the conspiracy matter. At that stage you were on bail. On 16 July 2014, your bail in this matter was revoked. Between 16 July 2014 and 13 March 2015, when Judge Lawson passed sentence upon you, you were in custody for two matters. However Judge Lawson took the 260 days into account when sentencing you on 13 March 2015.
28 The Crown submitted that you were never bailed on the subsequent drug related offences. You were serving that time and would have served that whole time on remand irrespective of whether the Crown revoked your bail for this matter. In addition the bail was revoked precisely because you committed the subsequent drug related offences whilst on bail for this offence.
29 Your counsel referred to R vRenzella[3] (Renzella) and Karpinski v R [4] (Karpinski) and submitted that I have a discretion to take the 260 days into account in accordance with the Renzella principle. However Renzella and Karpinski refer to “dead time” and the obligation of the Court to take dead time into account at the first opportunity. In this case Judge Lawson took the 260 days into account as part of the sentence which was imposed on 13 March 2015. Nevertheless I have taken the 260 days into account as part of the principle of totality.
[3] [1997] 2 VR 88.
[4] (2011) 32 VR 85.
30 His Honour Judge Taft granted bail in relation to this offence in 2015 because of the impending death of your mother from liver cancer. You were bailed on very strict bail conditions which included twice a day reporting. You could not drive and had to use public transport to attend the police stations. Your bail conditions were relaxed in 2016 to daily reporting and you then commenced residing with your partner Jess. You obtained a job in Campbellfield as a packer and remained in that job throughout most of 2016.
Rehabilitation
31 Your counsel submitted that your prospects for rehabilitation are good. You maintain the support of your immediate family and your partner Jess with whom you continue to have a close relationship. Your father, partner and other members of your family attended Court to support you.
32 Your counsel submitted that the offending occurred over a very small period of time in 2013 and 2014 when you were 21 and 22 years old and that there has been no offending for almost four years. You have a solid work history. You have a reasonable level of education. You have been able to obtain work and have attempted to pursue your studies despite the fact that these legal matters have been hanging over your head for a period of time.
33 Your counsel submitted that having exercised your right to trial, it cannot be said on your behalf that you are remorseful for your offending. Your counsel submitted that in the circumstances of this case your lack of remorse should have no bearing on the assessment of your prospects for rehabilitation.
34 The Crown submits that in view of your prior and subsequent convictions, your prospects of rehabilitation should be assessed cautiously.
35 I am, on balance, satisfied that the chances of rehabilitation are reasonable.
Parity
36 I am bound and do take into account parity of sentence with your co-offender. Harrison pleaded guilty to one count of conspiracy to import a commercial quantity of a border controlled drug contrary to subsections 307.1(1) and 11.5(1) of the Criminal Code. He was sentenced by Judge Saccardo in the County Court of Victoria on 17 September 2014 to eight years and six months' imprisonment with a non-parole period of six years reduced to a total effective sentence of three years and one month imprisonment with a non-parole period of two years after sentencing discounts were applied for his early plea of guilty and undertaking to cooperate with authorities pursuant to (the then) s.21E of the Crimes Act.
37 Harrison did not have any prior convictions or subsequent matters. His role was less than that played by you. Harrison was not involved in the selection of girls who would travel to South Africa and did not provide funding for the trip. Harrison withdrew from the conspiracy at a far earlier stage and Judge Saccardo was satisfied that his withdrawal should be accorded some significance. Harrison was not ultimately involved in providing the suitcase containing the drugs to Lemi. You played a more significant role in this enterprise and your moral culpability was greater.
38 As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending.
R v Verdins[5] (Verdins)
[5] (2007) 16 VR 269.
39 Your counsel referred to the report by Carla Ferrari dated 13 December 2017 (Ferrari’s report).[6] She diagnosed that you are suffering from a major depressive disorder and a generalised anxiety disorder. Your counsel indicated that “it will not be submitted that principles 1-4 of Verdins are enlivened however it will be submitted that principles 5 and 6 do have application in respect of the sentence to be passed on you.”[7]
[6] Exhibit 1.
[7] Paragraph 21, Defence written outline of submissions on plea dated 18 December 2017.
40 In R v Peter Zander[8] Nettle JA (as he then was) stated:
Contrary to submissions advanced by counsel on behalf of the appellant, where a prisoner is represented by counsel, a sentencing judge is not ordinarily required to consider any possible effects of psychological or psychiatric disability other than those expressly relied on by counsel. Generally speaking, therefore it is ordinarily not the duty of a sentencing judge to scour the evidence and other material in order to identify not so identified psychological or psychiatric disability which may go in mitigation of penalty.
[8] [2009] VSCA 10, [36].
41 Your counsel referred to Director of Public Prosecutions vO’Neill[9] and stated that he does not seek to pray in aid any of the first four limbs of Verdins. It was not put that the mental illness that Ms Ferrari opines in some way lessens your moral culpability such that it should reduce general deterrence.[10]
[9] (2015) 47 VR 395.
[10] Transcript p 22.
42 In R v Iaria and Panozzo[11] Nettle J (as he then was) stated:
Finally, I have given consideration to the submission made on your behalf that your psychiatric condition weighs against the sentence to be imposed upon you because of the reduced need for general and specific deterrence in the case of a prisoner who is affected by a psychiatric condition albeit falling short of insanity. But in the end I reject that submission. Serious psychiatric illness falling short of legal insanity may be relevant to sentencing where, for example, a person suffering from such an illness is not an appropriate vehicle for general deterrence. But the sorts of cases in which that has been held to have involved a prisoner suffering either from schizophrenia or a schizophrenic-type illness which obscured the mental intent to commit the crime with which he was charged. Authority makes plain that it is not appropriate to fasten on the words “recognised psychiatric disorder” and then, without reference to the symptoms and consequences of that disorder, contend the purposes of general deterrence have no part to play in the sentencing process. A psychiatric condition may reduce or eliminate general deterrence as an appropriate purpose of punishment, but it depends upon the nature and severity of its symptoms and its effects upon the mental capacity of the accused. Here it is not suggested and in any event I do not consider that your mental condition affected your capacity to determine the nature or quality of the act which you committed or lessened your ability to determine that it was wrong. Nor do I regard your present condition as being so severe as to make it inappropriate to impose upon you the sentence which would otherwise be imposed. In my opinion, your mental condition does not lessen the need for general or specific deterrence which a crime of the seriousness which you committed undoubtedly warrants.
[11] [2004] VSC 254, [49].
43 In this case the diagnosis that you are suffering from a major depressive disorder and a generalised anxiety disorder does not lessen the need for general or specific deterrence which the crime which you committed warrants.
44 Your counsel has conceded that specific deterrence needs to be addressed. You committed the subsequent offences whilst on bail. You transferred money through your brother in an enterprise which was not dissimilar to this offence.
The fifth and sixth limbs of Verdins
45 Your counsel submitted that the mental health issues identified by Ms Ferrari in her report mean that the sentence of imprisonment which must inevitably be imposed will weigh more heavily on you than it would on an offender in normal health.
46
The Crown submitted that in terms of the applicability of limbs 5 and 6 of Verdins, Ms Ferrari’s report is based on an oral history provided by the prisoner. It has some testing in it but the results of that testing are based on self-reporting questionnaires. The Crown submitted that the Court should be cautious in accepting Ms Ferrari’s report or the amount of weight to be given to the findings in that report given the jury’s verdict and the untruthful comments given to
Ms Ferrari about the offending.
47 Mr Saunders referred to paragraphs 76 and 77 of the Ferrari report. Ms Ferrari noted that as part of her psychometric testing, she administered the Depression Anxiety Stress Scale (DASS; Lovibond & Lovibond, 1995) which is a 42-item self-report questionnaire designed to measure an individual’s experience of symptoms of depression, anxiety and stress during the past week and that “each of these three subscales contains 14 items which tap the relative construct being assessed. The DASS has demonstrated high risk reliability and validity.” Ms Ferrari said that you gave very high readings in respect of each of those matters. Your counsel submitted that psychological tests have within them general failsafes to detect false reporting.
48 Ms Ferrari also referred to previous assaults and attacks by other prisoners during your incarceration in the past. In her opinion:
…Mr Wedi is being further traumatised and his mental state worsened by his being held in custody for a further period – an individual with his psychological profile is more likely to find prison significantly more difficult than the average offender, and his mental health issues will not resolve while he is incarcerated.[12]
[12] Exhibit 1, p 11.
49 I am satisfied that you suffer from a major depressive illness and a generalised anxiety disorder and that imprisonment will weigh more heavily on you than it would on a person in normal health.
50 Your counsel submitted that given your mental health issues and the traumatic experiences you have had when you have been in custody in the past, there is a risk that your mental health will deteriorate during the course of your imprisonment.
51 Having considered the contents of the Ferrari report, I am not satisfied on a balance of probabilities that there is a serious risk of imprisonment having a significant adverse on your mental health.
Delay
52 Since you committed these offences, there has been delay in the matter coming before me. The offence occurred in December 2013 and you were arrested on 8 January 2014. Committal proceedings were held in the Melbourne Magistrates’ Court between 18 and 19 December 2014. Your trial was first listed in this Court on 21 September 2015. It was adjourned to 6 April 2016. It was listed on 14 March 2017 in the Reserve List and was not reached.
53
Your counsel submitted that the trial had a very lengthy time through the court processes through no fault of yours. Your counsel submitted that the delay has been unfair to you and imposed additional punishment upon you. Had this matter been dealt with in a timely manner, you would have been
23 years old. The principles that deal with youthful offenders and mitigate many of the other sentencing principles in favour of rehabilitation would have applied to you at that time. Your counsel submitted that the sentencing principle to which the authorities say I should have most regard is general deterrence. If you were dealt with as a youthful offender that would have been modified and greater attention would have been paid to your prospects for your rehabilitation.
54 The prosecutor referred to your prior criminal history and submitted that, unlike the offender in R v Mills[13] (Mills), this is not the first time you have appeared before the court. The offender in Mills had no previous convictions and was sentenced as a first offender.
[13] [1998] 4 VR 235.
55 The prosecutor also referred to Azzopardi v R[14] (Azzopardi) and submitted that rehabilitation of youthful offenders is not the only relevant consideration and in an appropriate case might have to yield to considerations of general deterrence. The prosecutor submitted that general deterrence is the primary sentencing factor in this case. Redlich JA reached the following conclusion in Azzopardi:
The general propositions which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced. As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effects of the offender’s youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospects of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished.[15]
[14] (2011) 35 VR 43, [38]
[15] (2017) 35 vr 43, [44].
56 Further, as stated by the plurality in Director of Public Prosecutions v Thomas; Director of Public Prosecutions v Wu: [16]
In the case of drug importation offences, general deterrence is to be given a chief weight in sentencing. Stern punishment will be warranted in almost every case in order to advance that purpose. Factors personal to the offender are thus ordinarily given less weight than might otherwise be the case.[17]
[16] (2016) 347 alr 275, [193].
[17]DPP (Cth) v De La Rosa (2010) 79 NSWLR1, [207]-[215] (McClellan CJ at CL).
57 Your counsel submitted that this matter has been in this court for a period in excess of two years and there has now been a period of four years from the time of your arrest until sentence. Your counsel submitted that some allowance should be made for the fact that during that very lengthy period of time, you have had this matter hanging over your head.
58 In these circumstances the delay is a matter I take into account in mitigation.
Submissions on sentence
59 I have had regard to the table and details of the comparative cases provided by the prosecution. In R v Pham the High Court held that:
…it should now be accepted that 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.[18]
[18] (2015) 256 CLR 550, [29].
60 Your counsel conceded that in the circumstances of this type of offending, the principle of general deterrence is a significant matter and that the Court has to give weight to general deterrence in the framing of any sentence to be passed on you. Your counsel submitted that a lengthy period of parole having regard to your youth, the delay and your good prospects for rehabilitation, make that an appropriate disposition in this case.
61 Would you please stand Mr Wedi?
62 This is without doubt a serious offence. You played a crucial role in the importation of a very large commercial quantity of a border controlled drug. The maximum penalty for this offence is life imprisonment. It was conceded by your counsel on your behalf that a lengthy period of imprisonment was the inevitable sentence to be imposed. I have taken into account s.16A(1) of the Crimes Act that “in determining the sentence to be passed or the order to be made in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence.”
63 I have had regard to the matters referred to in s16A(2) as are relevant. I am satisfied that I have no alternative but to sentence you to a term of imprisonment.
64 I propose to record a conviction and sentence you to be imprisoned for 13 years. I direct that the sentence commences this day.
65 The non-parole period is the minimum term that justice requires you to serve having regard to all the relevant circumstances that exist. For that reason it cannot be fixed automatically. All relevant factors and sentencing principles are to be taken into account. I have to consider when you should be eligible for mitigation of confinement and in turn rehabilitation under conditional supervision.
66 In all the circumstances I direct that you serve a minimum term of eight years before becoming eligible for parole. I declare that the period of time you have spent in custody is - - -
67 MS BRECKWEG: One Hundred and seventy-four days, excluding today.
68 HER HONOUR: - - - is 174 days. Do you agree with that, Mr Saunders?
69 MR SAUNDERS: Yes, Your Honour.
70 HER HONOUR: Which is to be reckoned as time already served under the sentence. I direct that such be noted in the records of the court.
71 It is necessary for me to explain the sentence I have imposed. The total effective sentence is 13 years' imprisonment. You must serve eight years before being released on parole. There are 174 days of pre-sentence detention which are to be reckoned as time already served. If you are released on parole, the balance of your sentence will be served in the community subject to the conditions of your parole. Any such parole order may be amended or revoked. If you fail without reasonable excuse to fulfil the conditions of your parole, your parole may be revoked and you may be ordered to serve the balance of your sentence in prison. Are there any further matters?
72 MS BRECKWEG: No, Your Honour. Thank you.
73 MR SAUNDERS: No.
74 HER HONOUR: Thank you. Please take Mr Wedi into custody. Thank you.
- - -
0
9
0