R v Obiekie; R v Garaty

[2022] NSWDC 654

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Obiekie; R v Garaty [2022] NSWDC 654

Hearing dates:

2 December 2022

Date of orders:

15 December 2022

Decision date:

15 December 2022

Jurisdiction:

Criminal

Before:

Fitzsimmons SC DCJ

Decision:

Christopher Obiekie

(1) The offender is convicted.

(2) In relation to Count 3 on the Indictment, namely supply a prohibited drug (11.4g of methylamphetamine) contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW), I impose a sentence of imprisonment for 3 years, to date from 28 November 2020 and to expire on 27 November 2023.

(3) I impose a non-parole period of 2 years to date from 28 November 2020 and to expire on 27 November 2022.

(4) In relation to Counts 1 and 2 on the Indictment, I impose an aggregate sentence of imprisonment for 12 years and 6 months, to date from 27 November 2021 and to expire on 26 May 2034.

(5) I impose a non-parole period of 8 years to date from 27 November 2021 and to expire on 26 November 2029.

(6) The earliest date the offender is eligible to be released on parole is 26 November 2029.

Nicole Garaty

(7) The offender is convicted.

(8) In relation to Counts 4 and 5 on the Indictment, I impose an aggregate sentence of imprisonment for 8 years and 6 months, to date from 5 September 2022 and to expire on 4 March 2031.

(9) I impose a non-parole period of 4 years 6 months to date from 5 September 2022 and to expire on 4 March 2027.

(10) The earliest date the offender is eligible to be released on parole is 4 March 2027.

Catchwords:

CRIME – sentencing – federal offences - co-accused – import border controlled drug – import border controlled drug (commercial quantity) – sentencing considerations (16A(2))

CRIME – sentencing – state offence – supply a prohibited drug (methylamphetamine) – sentencing for both federal and state offences – concurrency between sentences

CRIME – subjective circumstances of offender – standard of proof – unsworn statements – rejection of offender’s statements

Legislation Cited:

Criminal Code 1995 (Cth) ss 307.1(1), 307.3(1)

Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 17A, 19AJ, 19(3)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 3A, 21A, 53A, 66

Drug Misuse and Trafficking Act 1985 (NSW) ss 25(1), 29

Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases Cited:

Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638

Butters v R [2010] NSWCCA 1

Clinton v R [2018] NSWCCA 66

R v Olbrich (1999) 199 CLR 270

R v Storey [1998] 1 VR 359

DPP v De La Rosa (2010) NSWCCA 194

Hili v R (2010) 242 CLR 52

Imbornone v R [2017] NSWCCA 144

Johnson v R (2004) 78 ALJR 616

Jones v R (2010) 240 CLR 520

Lloyd v R [2022] NSWCCA 18

Munro v R [2006] NSWCCA 350

Parris v R [2013] NSWCCA 5

Pfitzner v R [2010] NSWCCA 314

R v Nguyen; R v Pham (2010) 205 A Crim Report 106

R v Pham [2015] HCA 39

R v Qutami (2001) 127 A Crim Reports 369; [2001] NSWCCA

R v Elfar [2003] NSWCCA 358

R v Harrison [2001] NSWCCA 79]

R v McGourty [2002] NSWCCA 335

R v Palu [2002] NSWCCA 381

Refugee Review Tribunal decision number 1/37716 [2002] RRTA 838

Savvas v R (1995) 183 CLR 1

Totaan v R (2022) 365 FLR 69; [2022] NSWCCA 75

Van Zwam v R [2017] NSWCCA 127

Wong v R (2001) 207 CLR 584

Category:

Sentence

Parties:

Rex
Christopher Obiekie
Nicole Louise Garaty

Representation:

Counsel:
Mr D Jordan (Crown)
Mr S Healy (Mr Obiekie)
Mr K Buckman (Ms Garaty)

Solicitors:
Solicitor for Public Prosecutions (Cth) (Crown)
Just Defence Lawyers (Mr Obiekie)
Jassy Lawyers (Ms Garaty)

File Number(s):

2020/338300; 2021/260826

Publication restriction:

Nil

JUDGMENT

Christopher Obiekie

1. The offender is to be sentenced having been found guilty by a jury verdict, following a three-week trial, for the following offences:

1. Count 1: Importing a border controlled drug in contravention of s 307.3(1) of the Criminal Code 1995 (Cth) (‘the VW importation’) – maximum penalty 10 years imprisonment.

2. Count 5: Importing a border controlled drug (commercial quality) in contravention of s 307.1(1) of the Criminal Code (‘the BMW importation’) – maximum penalty life imprisonment.

3. Count 3: Supply prohibited drug in contravention with ss 25(1) and 29 of the Drug Misuse and Trafficking Act 1985 (NSW) – maximum penalty 15 years imprisonment

2. The evidence admitted on the sentencing hearing was the crown sentencing bundle comprising of the following:

1. Joint indictment (Ex CO1)

2. Crown asserted facts on sentence (Ex CO2)

3. Criminal history (Ex CO3)

4. Custodial history (Ex CO4)

5. Sentencing assessment report (Ex CO5)

6. Australian Government National Security document on Boko Haram (Ex CO6)

3. Admitted on behalf of the offender was the following:

1. Report of Dr Tanveer Ahmed, psychiatrist, dated 1 November 2022 (Ex OO1)

2. Affidavit of Emmanuel Pinto, sworn 25 November 2022 (Ex OO2)

3. Affidavit of Lilian Chukwuemeka, sworn 25 November 2022 (Ex OO3)

4. Justice Health Material (Ex OO4)

5. Corrective Services Material (Ex OO5)

6. Handwritten letter of Christopher Obiekie (Ex OO6)

7. Program completion certificate (Ex OO7)

8. Statement of Christopher Obiekie dated 29 November 2022 (Ex OO8)

Findings of fact for sentencing

4. The Crown prepared a summary of the facts for sentencing which it contended was founded on the evidence before the jury and consistent with the jury's verdict. The offender prepared an outline of areas of dispute in relation to the Crown’s asserted facts for sentencing document (MFI 5). The matters disputed were the subject of further submissions at the sentencing hearing.

5. In making relevant findings of fact for the purposes of sentencing I must not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. However, to the extent that facts in favour of the accused are to be taken into account on sentencing it is sufficient if those circumstances are proved on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 [27]; R v Storey [1998] 1 VR 359 at 369.

6. In so doing, the Court is entitled to form its own view of the facts, so long as it does not conflict with the jury's verdict: Savvas v R (1995) 183 CLR 1 at [8] per Dean, Dawson, Toohey, Gaudron and McHugh JJ.

Background to the offending

7. From about March 2020 to the time of his arrest, the offender was living in boarding house accommodation at 114 Marion Street Bankstown (‘114 Marion Street’). The offender rented and lived in a room on the ground floor of that premises which was boarding house style accommodation. The ground floor in particular contained four separate bedrooms and a shared kitchen and bathroom. The rooms were accessed by a central hallway from the front door, with the room occupied by the offender being the second room on the left upon entry. On the right-hand side along the common access hallway there was a black shelving unit. Apart from the room occupied by the offender, all of the remaining bedrooms on the ground floor at the time of the offender’s arrest were unoccupied. There were locks on the front and back doors to the ground floor of the premises, and the bedrooms had separate keys, so that while each tenant had access to the common spaces, each could not have access to the bedrooms of co-tenants if those doors were locked.

8. At the time of the offending the offender was in a romantic relationship with the co-offender, Nicole Garaty (‘Garaty’).

9. In 2020, Garaty lived in a detached apartment or granny flat at 3 Olympic Parade Bankstown, which was rented from the owner Peter Nguyen (‘Nguyen’). The offender was known to Nguyen as a boyfriend of Garaty, and she had been seen from time to time staying at the offender’s 114 Marion Street residence.

Telephones found on arrest

10. The offenders were arrested by Australian Federal Police on 28 November 2020 at Menzies Aviation (‘Menzies’). They were in a black BMW, Garaty was in the driver’s seat and the offender was in the front passenger seat.

11. A Samsung S 20 Galaxy S 20 Ultra mobile phone, using the number 0403 003 061 (the S 20 phone) was found on the driver’s seat of the black BMW, consistent with the S 20 phone being used by Garaty.

12. Three other mobile phones were found in the black BMW all in the front centre console as follows:

1. Samsung Galaxy A5 which was found on forensic examination to have been connected at various times to the numbers 0424 874 920 (registered to a person who, if real, was not connected with the importations) and 0401 906 983 (registered to the offender at an address in South Coogee).

2. Samsung Galaxy Note 9 which was found on forensic examination to have been connected to the number 0422 556 767 registered to Garaty at the Olympic Parade Premises.

3. Samsung Galaxy Note 20 Ultra which was found on forensic examination to have been connected to the number 0401 906 983.

13. Generally, the S 20 phone was used throughout the relevant period by Garaty, and the other phones were generally used by the offender, although at times it is probable that the Note 9 phone was used by both as its number was saved as ‘spare’, and the Note 9 phone was used to call the 983 number on 26 August 2020.

14. The places in which the phones were found inside the black BMW were consistent with the general attribution to their users.

The VW consignment

15. In August 2020, the offender and Garaty imported a package containing an unknown quantity of methamphetamine concealed within one of two VW branded headlights. The package was not intercepted by police, although the headlights were found by police in the black shelving unit when the 114 Marion Street premises was searched on 29 November 2022.

16. The air waybill generated for the first consignment nominated the consignee as Peter Nguyen, with the address being 114 Marion Street, the offender’s address. The items were described as “car spares”.

17. On 8 August 2020 the VW consignment arrived in Sydney. The following day a photo was saved on the offender’s phone, depicting a receipt dated 4 August 2020 for two golf headlights, although this was not the receipt which was eventually used for the VW consignment.

18. In the meantime, Garaty engaged a customs agent, Trent Powell (‘Powell’), to assist in the clearing of the VW consignment through customs, including telephoning Powell to discuss the consignment, emailing the air waybill and tax invoice for the headlights. Garaty engaged in further communication with Powell regarding the need for photographic identification of the consignee to enable the consignment to be cleared.

19. On 15 August 2020 the offender paid $1500 to Nguyen in payment of rent arrears for Garaty on the Olympic parade premises. A copy of the bank transfer confirmation was sent to Nguyen. In the meantime, the offender had requested from Nguyen a tenant reference following which Nguyen sought clarification from the offender. Ultimately the identification was obtained following a number of communications between Garaty and Nguyen.

20. Sometime between 15 and 17 August 2020, the VW consignment was delivered to the 114 Marion Street address.

21. When an AFP search warrant was later executed at the 114 Marion Street premises on 29 November 2020 the VW headlights contained in the VW consignment and depicted in the photographs found on a phone connected to the offender, were seized from the black shelving unit. A tray swab of the interior cavity of one of the headlights returned a positive result for the presence of methamphetamine. By inference, the jury found that at least one of these headlights was used in August 2020 to conceal and import an unknown quantity of methamphetamine.

22. Following the guilty verdict, I am satisfied beyond reasonable doubt that the jury found that:

1. the VW importation had a substance concealed within it;

2. the offender knew that there was a substance in the VW consignment;

3. the offender was aware of a substantial risk that the substance was a border control drug; and

4. having regard to the circumstances known to the offender, it was unjustifiable for the offender to take the risk.

23. Further, I am satisfied beyond reasonable doubt that the jury's guilty verdict was consistent with the offender being engaged in the following acts of importation:

1. was instrumental in using the name Peter Nguyen as the consignee, including securing from Nguyen, under a false pretence, his identification papers in order to secure the clearance of the importation through customs; and

2. unpacked the drugs from the VW consignment at the 114 Marion Street premises.

The BMW consignment

24. Between 28 September and 13 November 2020 at least Australian $62,113.04 (in South African Rand) was transferred to the South African bank account of Cyprail Chika Anabede (‘Anabede’), or to that person in cash collection, over numerous transactions using the World Remit app. Whilst I am not satisfied beyond reasonable doubt that all of these payments related to the BMW consignment, for the following reasons I am satisfied that at least a proportion of these funds were used to finance the importation:

1. the substantial funds involved in the transfers;

2. the proximity in time of these transfers to the importation; and

3. the funds were directed to a South African bank account and in South African Rand in circumstances where the consignor nominated on the air waybill was identified as being in South Africa.

25. On 11 November 2020 an Air Waybill was generated in South Africa for the BMW consignment nominating Peter Nguyen as the consignee and the address being 114 Marion Street. On 12 November 2020, the offender saved a copy of the airway bill on one of the phones associated with him. On 13 November 2020, a copy of the airway bill was emailed between two of the offender’s email accounts, details of which were located in a 2020 black diary found on the bedside table of the room occupied by the offender.

26. On 16 November 2020, the BMW consignment arrived at Sydney and the following day a message was sent from +27, being the international dialling code for South Africa, to the offender attaching a screenshot from Qatar Airways showing the shipping information and current status of the BMW consignment.

27. Between 19 and 24 November 2020, the offender messaged a saved contact identified as “Carr” discussing “prices”, clearance and custom delays.

28. In the meantime, Garaty had reengaged Powell to assist in the clearing of the BMW consignment through customs.

29. On the morning of 18 November 2020, the offender sent Garaty three photos of separate paper invoices for the BMW dashboards. Twenty-five minutes later Garaty sent a screenshot to the offender of a draft email to be sent to Powell which would initiate the customer clearance process for the consignment. Five minutes later, the offender and Garaty had a voice conversation via WhatsApp and approximately one hour later, Garaty sent an email to Powell, attaching the receipt photos, the airway bill for the consignment and a screenshot of Nguyen’s drivers licence.

30. Garaty subsequently engaged in further communication with Powell relating to the clearance of the consignment, including concerns as to the delay in its clearance.

31. On the morning of 27 November 2020, Powell notified Garaty that the BMW consignment had cleared customs and was ready for collection at the depot of Menzies. In the meantime, the consignment was intercepted by Australian Border Force, and found to contain three BMW vehicle dashboards. The airbag components of each of the three dashboards was found to contain substance which tested positive for methamphetamine. AFP attended and seized the BMW consignment.

32. On the afternoon of 27 November 2020 Garaty contacted Menzies, identifying herself and enquiring as to whether the consignment could be collected. A short time later the offender, in the company of Garaty, attended the Menzies depot and Garaty made an unsuccessful attempt to collect the consignment. Garaty was advised in a phone call with a staff member that she needed a letter of authority from the consignee.

33. During the night Garaty drafted an email, purportedly sent by Nguyen giving authority for her to collect the BMW consignment. The draft was sent to the offender with the message “how is this???" and subsequently sent by Garaty to Menzies.

34. About 11am the following day the offender, in the company of Garaty, arrived at Menzies, with Garaty driving and the offender in the front passenger seat. Garaty attended the front counter and asked to collect the consignment, providing her driver’s licence. Garaty paid the terminal handling fees. It was whilst waiting to collect the consignment that AFP attended and the offenders were arrested.

35. The amount of methamphetamine in the BMW consignment was later scientifically analysed and found to have a total net weight of 2.418 kgs and the purity of 68.7%, representing a total pure weight of 1.661 kgs of methamphetamine, being more than twice the commercial quantity.

36. I am satisfied beyond reasonable doubt, consistent with the guilty verdict, that the offender engaged in the following acts of importation in relation to the consignment:

1. Was involved in the transfer of funds to a South African bank account, being payments towards the importation.

2. Was instrumental in using the name Peter Nguyen as the consignee, including securing from Nguyen, under a false pretence, his identification papers in order to secure the clearance of the importation through customs.

3. Liaised with Garaty regarding the customs clearance.

37. Following the guilty verdict, I am satisfied beyond reasonable doubt that the jury found that:

1. the BMW importation had a substance concealed within it;

2. the offender knew that there was a substance in the BMW consignment;

3. the offender was aware of a substantial risk that the substance was a border control drug; and

4. having regard to the circumstances known to the offender, it was unjustifiable for the offender to take the risk.

Supply Prohibited Drug

38. On 29 November 2020, a Commonwealth search warrant was executed at the offender's residence at 114 Marion Street. In particular, a search was conducted of the room occupied by the offender. A locked safe was found within a cupboard, secured to the base of that cupboard. Inside the safe was a clip seal bag containing 11.4 g (net) of methamphetamine (80.1% purity). I am satisfied beyond reasonable doubt, given the Crown case at trial, and the directions given to the jury, that the offender possessed the contents of the safe, including, relevantly, the methamphetamine, the offender’s passports, and identification documents.

39. I am further satisfied beyond reasonable doubt that the jury accepted the digital pocket scale, containing a trace swab positive for the presence of methamphetamine and other drugs, was located in the white bedside table and was relevant to the guilty verdict in respect to supply prohibited drug.

Other disputed findings of fact

40. The Crown contended that the evidence established that Garaty was emotionally dependant on the offender “with florid expressions of love and submissiveness contained in letters to him” (Ex C27). It is in this context that the Crown asserts, when the evidence as a whole is considered, that in general terms the offender directed Garaty in relation to both importations.

41. The offender contends that such asserted “facts" are more of an opinion or conclusion. Further, the offender contends that the evidence before the jury was a "minuscule" portion of the total communications, by way of SMS and WhatsApp, between the offender and Garaty across the period of their relationship. It is contended that the tendering only of those messages that are relevant to whether the importation and drug offence were proved was a “poor prism” against which to judge the complexities of an entire romantic relationship. In any event, the messages in evidence were inconsistent with such a broad contention. The mere fact that Garaty may have had “a florid style of writing”, and at times a labile mood, did not indicate the true substance of the relationship between the two offenders.

40. The Crown relies upon a series of diary entries written by Garaty. Page 13, Ex C27, Garaty wrote the following:

“Because I don’t practice. But we met so he must of heard me…and even though you ARE a child of God, he will Judge you and show his wrath for the heartache and extreme Pain you have Been Putting me through, someone you Say You Love…

You have NO IDEA how much You hurt me tonight.”

43. Further, commencing at pages 19 - 23, Ex C27, Garaty wrote the following:

“Please, Im BEGING for 1 Last Chance,

Your wife is on her hands & knees BegING You (hand drawn heart).

Don’t Allow these Deamons to Win.

Im Beging you to Please STAY with me and Please Help Me

Baby Never In my Life have I felt the Love so much and Adored someone as much as I do you.

You are all that exists in my life. With out you, I am Nothing. I dont exsist.

I am So Extremely Sorry for all the horrible things that you have accused me off and it was only about 3 weeks ago that You Came to your sences and Admitted that I actually had done none of those things.

If you USE YOUR Brain, Just for a moment, you would realise that I actually Benefit MORE if you have the package Cause You will be making Paper, meaning: You will be Happy, meaning: we wont be fighting, meaning: I will still be by Your Side, meaning: I would Be the Happiest, Luckiest, Most Blessed Woman that has Ever Lived…

So WHY would I keep the Package or do any thing else Horrible to You. now that I Know what, and have felt, TRUE Love (with drawn heart as the o in love) with you, I do not want to Stop Existing anymore. I Want to LIVE Forever, Loving You for an ETERNITY, as we fly Higher than Anyone ever has, Together, You & Me, Husband & Wife, ChrisNicoleOB

as your Wife, Baby, I Beg You… Please Please don’t leave me & seal the fate of an innocent New Christian to the Demons between us…”

44. The Crown contends that these entries contextually corroborate the balance of the evidence, consistent with Garaty being emotionally subordinate to the offender. It contended that the evidence existed at different levels such as checking emails that were to be sent and the offender’s origins and contact with South Africa. The Crown contended, in response to the offender’s submissions, that the relationship was not necessarily “devoid of pushback", however the evidence overall established Garaty’s emotional dependence on the offender.

45. The offender highlights a number of SMS messages written by Garaty in Ex C30, and in particular, the following entries:

“…SO YESTERDAY WAS ALL LIES AGAIN… Its you that CONSTANTLY LIES to me… you are a bloody hypocrite – Exhibit C30, Line 511”

“… You are a Fucking Idiot. OH… & Again… Thank you for Dog’ing me into Your Contacts with a bunch a LIES just to Save Your Own Ass… SEE. YOU ARE AN ABSOLUTE BLOODY AMAZING HUSBAND” – Exhibit C30, Line 10”

46. The disputed factual findings as to the nature of the relationship must also be considered in the context of the Crown’s contention that the evidence established, in general terms, that the offender directed Garaty in relation to both importations.

47. The offender disputes this assertion, relying particularly upon Garaty’s emails with the customs clearing agent, Powell, in August 2020 (Ex’s C14 and C15) and Garaty’s emails with Powell in November 2020 (Ex C16). It is contended, by reference to these exhibits, that they were written effectively “in her own voice", which was not consistent with having the contents of those emails dictated to her by others. It is further contended that the offender showed some sophistication in her dishonesty as early as the first importation. Further, the offender’s conversation with a representative of the freight forwarding company was consistent with the offender effectively acting on her own volition.

48. Whilst Garaty was prepared at times to be assertive in her communications with the offender, I find that the diary entries contained in Ex C27 demonstrate emotional dependence, vulnerability, and a degree of submissiveness towards Obieke.

49. Further the preponderance of evidence establishes beyond reasonable doubt that the offender was primarily responsible for the importations, and that Garaty’s own actions in assisting with the importations, was fundamentally under the direction and guidance of the offender.

50. This finding is supported by the following evidence:

1. Both consignments originated from South Africa being a country with which the offender had a connection.

2. The offender’s address at 114 Marion Street was used on the Air Waybill for both importations.

3. Peter Nguyen was the nominated consignee on both imports. In order to facilitate the clearance of both imports through customs Nguyen’s identification was required. It was the evidence of Nguyen that it was the offender who initiated the contact with Nguyen to obtain the identification. Nguyen gave evidence that the offender contacted him about a “reference letter". The offender had asked Nguyen for such a letter in the context of requiring it for a rental. This is consistent with SMS messages from Nguyen to the offender, at the time the reference was requested, in which Nguyen asked the offender for his full name and whether he should only insert his name or Nicole's name as well in the reference (Ex C30, line 115 – 116). In this context the offender accepted that the jury must have found beyond reasonable doubt that the Nguyen reference was not a genuine reference sought for the purposes of showing it to a potential new landlord.

4. The VW headlights were found at the offender’s 114 Marion Street address, being the address nominated on each of the consignments.

5. Photographs of the VW stock label on one of the headlamps involved in the first importation were saved on a Samsung Galaxy Note 20 Ultra phone, connected to the phone number 0401 906 983. That phone number was in the account name of the offender. Additionally, photographs of the headlamps were taken on the same phone, such photos being taken at the offender’s 114 Marion Street address.

6. On 12 November 2020, the offender saved a copy of the airway bill on one of the phones associated with him.

7. On 13 November 2020 the Air Waybill for the second importation was emailed between two of the offender’s email accounts. Details of both email accounts were found in a diary seized from a bedside table in accordance with a search warrant executed on the offender’s room.

8. Also contained in the diary, found on the bedside table were handwritten notes containing details of the BMW consignment.

9. Participating in some of the money transfers to South Africa relating to the second importation.

10. On 17 November 2020, the day after the consignment arrived in Sydney, a message was sent from “Stan” with the prefix “+ 27”, being the international dialling code for South Africa, to the offender containing a screenshot from the Qatar Airways cargo website showing the shipping information and current status of the BMW consignment.

11. On the morning of 18 November 2020, the offender sent Garaty three photos of separate paper invoices for BMW dashboards. Twenty-five minutes later Garaty sent a screenshot to the offender of a draft email addressed to Powell which would initiate the customer clearance process for the BMW consignment. Five minutes later the offender engaged in a WhatsApp voice conversation with Garaty, and approximately one hour later Garaty sent the email to Powell, attaching the receipt photos, the Air Waybill for the BMW consignment and a screenshot of Nguyen’s drivers licence.

12. Between 19 and 24 November 2020, the offender exchanged a series of messages via WhatsApp with a person identified as “Carr” referencing “prices” and in particular, indicating a “last price” until “I get mine cleared”. The messages also referred to “custom delay", consistent with the evidence that at the very time the messages were being sent there were delays in the customs clearance of the BMW importation.

13. The offender was present at the time of the unsuccessful attempt to collect the second consignment on 27 November 2020.

14. In the early hours of the morning on the date the offenders were arrested (28 November 2020), Garaty sent a draft email to the offender, purportedly sent by Nguyen giving authority to Garaty to collect the BMW consignment, consistent with Garaty seeking the offender’s approval of the draft to be sent to Menzies.

15. The offender was present at the time of the attempted collection of the second consignment on 28 November 2020.

51. By way of contrast, Garaty’s involvement was limited to:

1. Securing Nguyen’s identification documents, following the initial request from the offender.

2. Liaising with Powell regarding customs clearance including payment of clearance fees - in respect to the second importation the evidence established that the final email to Powell, shortly prior to the attempted collection and arrest, was first sent as a draft to the offender before being sent to Powell.

3. Liaising with Menzies staff immediately prior to the attempted collection – the telephone call between Garaty and the Menzies employee was whilst in the company of the offender.

4. Participating in at least some of the money transfers for the second importation.

Subjective Material

Report of Dr Tanveer Ahmed

52. Dr Tanveer Ahmed, Consultant Psychiatrist, prepared a report on behalf of the offender following a telehealth consult on 1 November 2022 from Parklea Correctional Facility. The offender told Dr Ahmed that he was married with three children who lived in South Africa. He was originally of Nigerian descent and was in Australia on a Bridging Visa.

53. The offender provided a history of significant trauma. He stated that his parents were attacked by Boko Haram, a known terrorist group in Nigeria. Whilst he was born in Nigeria, he fled that country after the rape of his mother by the terrorist group. He claimed that his father reacted against the terrorist attackers, leading to a serious altercation in which a member of the terrorist group was ultimately killed. The offender said that he fled immediately to South Africa as his own life was in danger. He later discovered that his father was chopped up into 12 pieces. He claims to have ruminated about this often.

54. The offender did not complete his schooling entirely due to having to flee the situation in Nigeria in his late teens. In South Africa he started experiencing nightmares and anxiety ruminations about past incidents in Nigeria. Whilst he did not witness his father being killed, he often ruminated about it. He would become anxious. He remembered self-medicating with alcohol heavily at times and was seen by a psychologist in South Africa. He was not clear of any particular diagnosis at the time of those consultations, although alluded to possible post traumatic syndrome as well as anxiety and depressed moods. He recalled feeling withdrawn, depressed, and struggled to sustain work. His wife at times called him a "psycho". He recalled being placed on medication for several years.

55. Dr Ahmed was told that the offender grew up in Nigeria as an only child. His mother died of a heart attack soon after his father was murdered. Whilst in South Africa he worked primarily as a barber but was also buying and selling cars and it was there that he met his wife. They had three children together. They established themselves in Johannesburg, although just prior to coming to Australia he was under threat in relation to a robbery. He apparently came to Australia ostensibly to attend some kind of export fair and had been on a Bridging Visa ever since. He claimed that his wife said not to come back to South Africa until it was safe for him to do so.

56. Prior to being arrested, the offender stated that he worked in construction and other odd jobs including being a courier for a poultry company. He was engaged in further training in an attempt to work as a barber at the time of his arrest. He spoke of meeting his co-offender and they became friends and ultimately lovers.

57. The offender reported drinking alcohol heavily in the past, especially in South Africa, although he denied it being a problem in Australia. He denied regular use of illicit drugs, including methamphetamine. Whilst in custody, he had recommenced antidepressants, having been assessed by doctors and psychologists. The medication had helped with his anxiety and depressed mood although he continued to report struggling with heightened anxiety, occasional panic attacks and feeling claustrophobic. It had been difficult in the correctional facility.

58. On mental health examination, the offender was able to give a coherent history although he showed signs of distress when relaying the death of his parents. There were no other cognitive deficits or thought disorders.

59. Dr Ahmed was satisfied that the offender satisfied the criteria for a persistent depressive disorder, and it was likely that he had a long-term psychiatric condition stemming from a complicated traumatic upbringing, including being estranged from his parents, one of whom was murdered. The offender’s symptoms were primarily linked to heightened anxiety, difficulty sleeping, intermittent depressed mood which led to difficulties with sleeping, eating and disrupted cognitions. This had caused some difficulty in him sustaining work in the past. Dr Ahmed considered it was “plausible" that his difficulties properly managing his symptoms and condition, especially in a new country, affected his cognition, judgement and impulse control, which was likely to have contributed to the offence. A treatment plan involving medications and engagement with a psychologist was recommended.

Hand-written statement of the offender

60. The offender provided a 10-page handwritten letter “to explain a bit more of my life, family and background”. The offender stated that his late mother was a rape victim by a Boko Haram terrorist in front of himself and his late father. The offender stated that they were both highly devastated afterwards and his mental state became “unstable". He further stated that the atrocity and rape that was carried out against his late mother resulted in a brutal fight between his late father and a Boko Haram member, resulting in the accidental killing of that member. As a consequence, his father felt “insecured” and “started running for his life".

61. The incident also put the offender's life in danger and accordingly he escaped to South Africa where he met his wife and had three children. The offender stated that while staying in South Africa he received calls from his late father telling him that he should not return to Nigeria until the war was over. After a further period, he received a phone call from his late mother saying how his father was brutally slaughtered and chopped into 12 pieces by the group of Boko Haram terrorists. His mother subsequently died of a heart attack arising from the shock of his father's death. He stated that his father's brother betrayed his father to the Boko Haram.

62. He claimed that his phone number whilst living in Johannesburg was disclosed to the terrorist group and as a consequence, he started receiving threatening text messages. He stated that throughout the time he was in South Africa he could not stop thinking about his late mother's rape, her death, and the murder of his father. He started having dreams and nightmares which resulted in visiting a psychologist who diagnosed depression. The offender started to engage in social activities in South Africa and developed a drinking problem. The offender spoke of difficulties in Johannesburg resulting in a “bloody fight" against South African locals. This resulted in his closest friend being shot dead.

63. As a consequence, he fled South Africa and migrated to Australia. He started drinking again due to psychological difficulties. The offender engaged in various construction work and was studying to obtain his hairdressing qualifications. The offender had almost completed his hairdressing studies when he was arrested. The offender also engaged in machine operating work to provide income for the support of his wife and children in South Africa.

64. The offender reported suffering a condition in his leg which also caused disability in his upper back. He was unable to continue his study and work due to the pain and he was “temporarily paralysed". The offender spoke of his activities whilst incarcerated including attending chapel on Tuesdays and being involved in a program of prisoner fellowship. The offender reported that whilst in custody he developed gout, arthritis, and lower back pain. The offender also reported experiencing “itchy of skin” and a rash which deprived him of sleep. He also struggled to breathe in the cell most of the time and had been apparently diagnosed with claustrophobia. The offender stated that he contracted Covid from an external construction worker and was subsequently in isolation for a period of almost 2 weeks. The offender has been engaged in further work programs whilst in custody.

Statement of the offender dated 29 November 2022

65. The offender provided a further signed statement in response to the reports of Drs’ Kwok and Furst prepared on behalf of Garaty. The offender disputed much of the history provided by Garaty to the experts. He denied distancing Garaty from her friends, claiming that these “friends" were drug users and/ or dealers. The offender claimed that Garaty used drugs in his presence many times, including smoking ice and marijuana. He denied using marijuana although with Garaty’s encouragement he did use ice four or five times. The offender admitted that he would, on occasions, look at Garaty’s phone as she would his. He claimed that “strange things" started to happen with his phone such as his password being changed.

66. He denied being physically abusive towards Garaty, although described one incident in early 2020 arising from their mutual use of some type of drug. As a result of this incident, it was alleged that Garaty attempted suicide by putting a handful of ice in her mouth. It was in these circumstances that the offender alleged he grabbed Garaty near the throat in an attempt to expel from her mouth the ice which she had consumed.

67. He denied that he had asked Garaty to collect the parcels from the airport on the basis that he was unable to do so as he was not an Australian citizen. He denied any conversation with Garaty in respect to the package and denied becoming violent or yelling at her arising from this importation.

Affidavit of Emmanuel Pinto sworn 25 November 2022

68. Mr Pinto had known the offender since early 2009, having met him at the airport in Dubai whilst travelling to Australia. The offender then stayed with Mr Pinto until late 2019, following which there was minimal contact. Mr Pinto stated that they spent time with each other whilst living together. The offender did not talk much about his family back home or why he came to Australia. He claimed to have known the offender well and thought he was “a very good man". He was shocked to hear of the offender’s arrest. Since being in custody he attempted to speak to the offender regularly and sent him money to assist. Mr Pinto was under the impression that the offender was struggling and missing his family. At all times he had attempted to be a support. He stated that when the offender was released, he could live with Mr Pinto.

Affidavit of Lilian Chukwuemeka sworn 25 November 2022

69. Ms Chukwuemeka knew the offender for a period of over 15 years, having first met him as her football coach in high school. Since leaving high school they stayed in contact and maintained “a good relationship". The offender had been a mentor as she had struggled a lot in high school, having been bullied and suffered from low self-esteem. The offender was a strength and support for her. Ms Chukwuemeka stated that she lost her father in 2010 and as a consequence, struggled with depression and suicidal ideations. The offender was her coach at the time and supported her. He apparently shared the fact that he lost both of his own parents, although she was unsure of the circumstances of their death. However, she considered it “affected him a lot". The offender sharing the loss of his own parents was of considerable support and comfort to her. The offender was well respected in his community. She described him as “an outstanding and good person" and "ray of light". He was loved by the teachers and students at his school. Ms Chukwuemeka stated she was surprised when she heard of the offender’s arrest as he had always been “an extraordinary person and a great mentor for me”.

Justice Health Material

70. Documents produced by Justice Health record the offender’s various medical ailments whilst in custody, including Covid-19, claustrophobic symptoms, panic attacks and anxiety.

71. The documents also record a history obtained from the offender that he was born in Nigeria in 1974 and emigrated to South Africa at the age of 24. This was inconsistent with the history provided to Dr Ahmed that he fled Nigeria in his late teens. He provided a history that both parents were deceased with his father “murdered ? political”. He claimed to have had four sisters and two brothers, none of whom he was in contact with. This is inconsistent with the history provided to Dr Ahmed that the offender grew up in Nigeria as an only child. The offender provided a further history of childhood trauma including witnessing family violence and experienced physical abuse.

Corrective Services Material

72. The documents from the Department of Corrective Services included a case note on 1 April 2021. A history was provided by the offender that he had completed high school in Nigeria and part completed a business and marketing university course whilst living there. This is inconsistent with history provided to Dr Ahmed that he fled Nigeria in his late teens and had only completed to the level of late high school before fleeing to South Africa. It is also inconsistent with the offender's history to Dr Ahmed that he did not entirely complete his schooling due to having to flee the situation in Nigeria.

73. The case note further records a history from the offender that he lived in South Africa for over 20 years and was a clothing importer. He spoke of travelling to China to buy clothing which he would then sell in South Africa. He also discussed owning a café business. I note this is inconsistent with the history provided by the offender to Dr Ahmed that while in South Africa he worked primarily as a barber as well as buying and selling cars.

74. The offender was demonstrated as having satisfactory reading and numeracy skills for vocational education and it was appropriate that he participate in various vocational education courses and higher literacy and numeracy programs.

Program completion certificates

75. The documents confirmed that the offender had completed various courses whilst in custody.

Sentencing Assessment Report

76. The report was prepared following an interview with the offender, as well as contact with the offender’s proposed landlord and employer. Contact was also made with the Australian Department of Home Affairs as well as Corrective Services records.

77. The offender advised that he had arrived in Australia in 2019 on a refugee visa, however, contact with the Department of Home Affairs indicated he travelled to Australia on a visitor visa and that he subsequently lodged an application for a Permanent Protection Visa. He was currently subject to a Bridging Visa A which lawfully allowed him to remain in Australia whilst his Permanent Protection Visa application was being processed.

78. The offender stated that he was born and raised in Nigeria however left when he was 26 years old after his father was killed by a local insurgent group. After arriving in South Africa, he married and had three children. His wife and children remained in South Africa when he travelled to Australia, and they had since been divorced, although he continued to provide financial assistance to his ex-wife and children. He had commenced a romantic relationship with Garaty in June 2019 and had maintained a relationship until remanded in custody. He advised that he intended to reside in shared accommodation in Merrylands upon his release, with his proposed landlord verifying this information.

79. The offender advised that he completed the equivalent to year 12 in Nigeria and after completing educational studies commenced employment in a variety of roles involving hairdressing. Since arriving in Australia he had maintained consistent employment, working in construction and as a barber. At the time of his arrest, he was working part-time as well as participating in a barbering course. His previous employer indicated that he would be willing to offer the offender employment in his barbershop if released into the community.

80. There was no prior criminal history and he denied that he had ever been charged with a criminal offence in any other country. The offender denied any involvement or knowledge of the drug importation scheme, claiming that Garaty had arranged everything. While he had suspected something was going on he did not know the details. He attributed the messaging on his mobile phone, as well as the drugs being located at his accommodation, to the fact that Garaty had full access to his mobile phone and property.

81. He denied any problematic substance abuse, although he claimed that Garaty had introduced him to ice after they had met in 2019. He denied any ongoing use. The offender denied the offences were financially motivated given other sources of income were sufficient to meet his financial needs. Whilst denying the offences, he appeared to have some insight into the adverse impact of illegal drug supply on the community and felt that people who dealt in drugs were taking “blood money”. He indicated a willingness to engage in interventions with Community Corrections, and a willingness to participate in community service work. He had been assessed as medium low risk of reoffending. He was assessed as suitable for community service work and Community Corrections would monitor the offender arising from any supervised order.

Nicole Garaty

82. The offender is to be sentenced having been found guilty by a jury verdict, following a three-week trial, for the following offences:

1. Count 4: Importing a border controlled drug in contravention of s 307.3(1) of the Criminal Code (‘the VW importation’) – maximum penalty 10 years imprisonment.

2. Count 5: Importing a border controlled drug (commercial quality) in contravention of s 307.1(1) of the Criminal Code (‘the BMW importation’) – maximum penalty life imprisonment.

83. Pursuant to s 16 A (1) of the Crimes Act 1914 (Cth), in determining the appropriate sentence to be passed in respect to any person for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

84. The offender is to be sentenced pursuant to Part 1B of the Crimes Act, and in particular, pursuant to the considerations listed in s 16A (2) of the Act, to the extent that they are relevant and known to the Court. That said, common-law sentencing principles are applicable to the sentencing for federal offences including principles of general deterrence, proportionality, and totality (Johnson v R (2004) 78 ALJR 616 at [15]; Hili v R (2010) 242 CLR 52 at [25]; Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at [18].

85. The evidence admitted on the sentencing hearing was the Crown Sentencing Bundle comprising of the following:

1. Joint Indictment (Ex CG-1)

2. Crown asserted facts on sentencing (Ex CG-2)

3. Criminal history (Ex CG-3)

4. Custodial history (Ex CG-4)

5. Sentencing assessment report (Ex CG-5)

86. Admitted on behalf of the offender was the following:

1. Report of Dr Emily Kwok, psychologist dated 31 October 2022 (OG-1)

2. Report of Dr Richard Furst, psychiatrist dated 19 November 2022 (OG-2)

Findings of fact for sentencing

87. The Crown prepared a summary of its asserted facts for sentencing (Ex CG-2) with which the offender agreed. Having considered that document, the Crown case at trial and my directions/summing up to the jury, I am satisfied beyond reasonable doubt that the facts contained in summary are consistent with the jury verdicts.

Background to the offending

88. The offender, and co-offender, Christopher Obiekie, had previously been in a romantic relationship. The offender was, to an extent, emotionally dependent on the co-offender. A notebook belonging to the offender contained expressions of love and submissiveness.

89. From about March 2020 to the time of his arrest Obieke lived in boarding house accommodation at 114 Marion Street.

90. In 2020, the offender lived in a detached apartment or granny flat at 3 Olympic Parade Bankstown, which was rented from the Nguyen. Obiekie was known to Nguyen as a boyfriend of the offender, and she had been seen from time to time staying at Obieke’s 114 Marion Street residence.

91. The evidence, when considered as a whole, established in general terms that Obiekie directed the offender in relation to both importations.

Telephones found on arrest

92. The offenders were arrested by Australian Federal Police on 28 November 2020 at Menzies. They were in a black BMW, the offender was in the driver’s seat and Obiekie was in the front passenger seat.

93. A Samsung S 20 Galaxy S 20 Ultra mobile phone, using the number 0403 003 061 (the S 20 phone) was found on the driver’s seat of the black BMW, consistent with the S 20 phone being used by the offender.

94. Three other mobile phones were found in the black BMW all in the front centre console as follows:

1. Samsung Galaxy A5 which was found on forensic examination to have been connected at various times to the numbers 0424 874 920 (registered to a person who, if real, was not connected with the importations) and 0401 906 983 (registered to Obiekie at an address in South Coogee).

2. Samsung Galaxy Note 9 which was found on forensic examination to have been connected to the number 0422 556 767 registered to the offender at the Olympic Parade Premises.

3. Samsung Galaxy Note 20 Ultra which was found on forensic examination to have been connected to the number 0401 906 983.

95. Generally, the S 20 phone was used throughout the relevant period by the offender, and the other phones were generally used by Obiekie, although at times is probable that the Note 9 phone was used by both as its number was saved as ‘spare’, and the Note 9 phone was used to call the 983 number on 26 August 2020.

96. The places in which the phones were found inside the black BMW were consistent with the general attribution to their users.

The VW consignment (Count 4)

97. In August 2020, the offender, with Obiekie, imported a package containing an unknown quantity of methamphetamine which was concealed within one of two VW branded headlights. The package had not been intercepted by police but was found by police whilst executing a search warrant at the premises occupied by Obiekie following the arrest in respect to the second count. Subsequent investigations revealed the following in respect to the importation.

98. On 6 August 2020 an Air Waybill was generated in South Africa for the VW package, recording the consignee as Peter Nguyen of 114 Marion Street. This was the address of Obiekie. The goods the subject of the Air Waybill were described as “Car Spares”. The VW consignment arrived in Sydney on 8 August 2020.

99. In the meantime, the offender had engaged the customs agent, Trent Powell, to assist in clearing the VW consignment through customs. Powell advised the offender that he would need the consignees photographic identification to clear the consignment. In response, Garaty told Powell that she was attempting to contact the nominated consignee, Nguyen, to obtain his identification. On 14 August 2020, Powell advised the offender that the consignment had been cleared without the ID, although continued to request that the ID be provided. An invoice for customs clearance was sent by Powell, advising that upon receipt of payment the consignment would be finalised with customs.

100. Nguyen understood that Obiekie had required a reference as tenant and sought further clarification from him. The offender subsequently sent an SMS to Nguyen requesting a photograph of his licence under the pretence that it was required for legitimate purposes. After several attempts, Nguyen sent the offender a screenshot of his digital licence via MMS.

101. Sometime between 15 to 17 August 2020 the VW consignment was delivered to the 114 Marion Street address. When an AFP search warrant was later executed at the 114 Marion Street premises, the Volkswagen headlights contained in the consignment were seized. A trace swab of the interior cavity of one of the headlights returned a positive result for the presence of methamphetamine.

102. By inference, the jury found that at least one of these headlights was used in August 2020 to conceal and import an unknown quantity of methamphetamine. Consistent with the Crown case at trial, and the directions given to the jury, I am satisfied the jury found beyond reasonable doubt that:

1. the VW importation had a substance concealed within it;

2. the offender knew that there was a substance in the VW consignment;

3. the offender was aware of a substantial risk that the substance was a border controlled drug; and

4. having regard to the circumstances known to the offender, it was unjustifiable for her to take that risk.

103. The Crown and the offender agreed in respect to the acts of importation engaged in by the offender. I am satisfied that the jury found beyond reasonable doubt as to the following acts of importation:

1. receiving instructions from Obiekie in relation to the importation;

2. liaising with Trent Powell, at first by telephone and then by email, in order that he might attend to clearance of the VW consignment through customs; and

3. arranging, by text and email, to receive Nguyen’s photographic identification to facilitate the clearance of the consignment after Powell advised that photographic identification was necessary. In so doing the offender engaged in deceiving Nguyen in that she perpetuated the false narrative that Obiekie needed a reference from him with photographic identification to assist in obtaining rental accommodation. This false narrative was continued, telling Powell that it was difficult to obtain Nguyen’s identification when he was at work. The identification was also provided to Obiekie.

The BMW Consignment (Count 5)

104. Between 28 September and 13 November 2020, around $62,000 Australian was transferred to the South African bank account of a Anabede. The Crown case at trial was there was an overwhelming inference these payments related to prepayments for the BMW consignment.

105. On 11 November 2020 an Air Waybill was generated in South Africa for the BMW consignment, nominating Nguyen of 114 Marion Street as the consignee. The goods under consignment were described as “Machine Spares". The BMW consignment arrived in Sydney on 16 November 2020.

106. The offender re-engaged Powell to assist in clearing the BMW consignment through customs. On 18 November 2020, the offender received three photos of the separate invoices for BMW dashboards from Obiekie. Shortly thereafter the offender sent a screenshot to Obiekie of a draft email which was to be sent to Powell to initiate the customer clearance process for the BMW consignment. After a further short conversation between the offender and Obiekie, the offender sent an email to Powell attaching the receipt photos, the Air Waybill for the BMW consignment and a screenshot of Nguyen’s driver’s licence. In the email the offender noted that Powell had previously assisted with clearing an earlier consignment and requested assistance with another one. The offender further advised that Nguyen was “up north at the moment” and had requested her to collect car parts that arrived the day before. Powell replied later that day attaching an invoice for customs clearance, noting that the BMW consignment was still subject to a border security hold. The offender and Powell subsequently exchanged emails about the meaning of a border security hold. Further emails were exchanged between the offender and Powell regarding the likely timing of collection of the consignment. She also asked whether there was any way the status of the consignment could be monitored in the customs system.

107. On 23 November 2020, in response to a request from the offender for an update, Powell forwarded her an Australian Border Force (‘ABF’) email, advising that the BMW consignment was still being processed. This email was subsequently forwarded to Obiekie. The following day the offender asked Powell whether it was normal for the consignment to take that long to be cleared. At 11:14 am on 27 November 2020, Powell notified the offender by SMS that the consignment had cleared customs and was ready for collection at the Matraville depot of Menzies, a cargo handling company.

108. However, on that same day, the consignment was intercepted by ABF and found to contain the three BMW vehicle dashboards. The airbag compartments of each of the dashboards were found to contain a white crystalline substance which tested positive for methamphetamine. As a result, the consignment was seized.

109. At 2:32pm on 27 November 2020, the offender called Menzies, identified herself and inquired as to whether the consignment could be collected. A short time later the offender, in the company of Obiekie, attended the Menzies depot and unsuccessfully attempted to collect the consignment. A staff member at Menzies advised the offender that she needed a letter of authority from the consignee.

110. During that night the offender drafted an email to be purportedly sent by Nguyen giving authority for her to collect the BMW consignment. The draft was sent to Obiekie by the offender with the message, “HOW IS THIS???”, and then sent to Menzies.

111. At about 11 AM on 28 November 2020 the offender, in the company of Obiekie, arrived at Menzies, with the offender driving and Obiekie in the front passenger seat. The offender attended the front counter asking to collect the consignment and provided her driver's licence. She used a credit card to pay $121.55 for the terminal handling fees. The offender was told to wait by her car with the relevant paperwork. Menzies staff then contacted the AFP who attended immediately and arrested the offender and Obiekie. During a lawful search of the black BMW, the offender’s notebook was found.

112. The amount of methamphetamine in the consignment was later scientifically analysed and found to have a total net weight of 2.418 kgs and purity of 68.7%, representing a total pure weight of 1.661 kg of methamphetamine, being more than twice the commercial quantity.

113. Given the Crown case at trial, and the directions given to the jury, I am satisfied that the jury found the following beyond reasonable doubt:

1. the BMW importation had a substance concealed within it;

2. the offender knew that there was a substance in the BMW consignment;

3. the offender was aware of a substantial risk that the substance was a border controlled drug; and

4. having regard to the circumstances known to the offender, it was unjustifiable for her to take that risk.

114. The Crown and the offender agreed in respect to the acts of importation engaged in by the offender. I am satisfied that the jury found beyond reasonable doubt as to the following acts of importation:

1. receiving instructions from Obiekie in relation to the importation, and reporting back to him in terms of its progress;

2. participating in at least some money transfers, using a false identity;

3. liaising with Powell in order that he might attend to the clearance of the consignment through customs;

4. arranging for the payment of Powell's invoice, and sending a copy of the receipt to Powell, to ensure the clearance of the consignment;

5. perpetuating the use of Nguyen’s identity to facilitate clearance of the BMW consignment, including providing his photographic identification. The offender continued to use a false narrative with Powell in relation to the consignment.

Subjective Circumstances

115. The offender is aged 46 with an adult son from whom she is estranged, although the offender is currently working on re-establishing a relationship with him. She separated from her son's father, and was divorced at the age of 29, in circumstances where he was mentally abusive and cheated on her.

Report of Dr Emily Kwok, psychologist 31 October 2022

116. The offender was assessed by Dr Kwok on 31 October 2022 via telephone. The offender provided a background history to Dr Kwok.

117. The offender was born in Newcastle and the elder of two children. Curiously she does not have any childhood memory before the age of 12 but was unable to provide a reason for this. The offender was not aware of any childhood traumas or adverse events that would have affected her memory and denied any domestic violence in her childhood home.

118. The offender’s first memories of her parents were being told that she was not good enough. She described her mother as “very cruel” who used physical punishment such as belting. She stated that both her parents worked, and she never really had a family.

119. The offender’s mother passed away four years ago in circumstances where she was blamed for her mother’s death. The offender completed year 12 with average grades. She described being bullied by other students in her schooling years. The offender initially worked as a dental nurse during the day and at a club at night. She subsequently worked in a call centre, on the railway and in the mining industry.

120. The offender reported that she did not have many friends growing up – she left home and moved in with her boyfriend at the age of 19. The offender reported having a few friends before meeting Obiekie who was the cause of her subsequent distance from friends.

121. The offender reported that she had started smoking marijuana at the age of 14, although the most problematic period of drug use had been the last three years. She had used “a little bit" of methamphetamine with Obiekie. She reported previously using marijuana to manage arthritis, a condition with which she had been diagnosed many years before. The offender had also been diagnosed with lupus and an underactive thyroid. Further, the offender reported that she had suffered from depression “for as long as I can remember". She used to cry for no reason and was always down. She had attempted suicide towards the end of high school and around the time of her parents’ divorce. She had attended counselling for a few months but did not find it helpful. The offender also attended counselling after her mother’s cancer diagnosis. She had experienced feelings of guilt around her mother's illness and reportedly had a nervous breakdown after her death.

122. She had been “scared” about going to jail and as a consequence attempted suicide in July 2022.

123. The offender met her first partner at the age of 15 and moved in with him at the age of 19. She gave birth to her son when she was 25 and later divorced at the age of 29. The offender’s son lived with her after the divorce until the age of 16 when he moved to Newcastle to stay with his father. Shortly thereafter her son ceased communicating with her.

124. The offender reported that she had four or five casual relationships before meeting Obiekie in 2019. About six months into the relationship Obiekie allegedly became verbally abusive, accusing the offender of cheating. They separated for a period of about six weeks and Obiekie moved out. Whilst they reconciled, the couple remained living separately. The offender claimed Obiekie became physically abusive at the beginning of 2020. Whilst she was “scared” with his behaviour, they were subsequently engaged and planned to marry, however, before the marriage the offender learned that Obiekie wanted to cheat on her. At the time of trial, the offender and Obiekie were separated.

125. Earlier this year the offender entered into a new relationship and her partner was emotionally supportive.

126. At the time of the offending, the offender was in a relationship with Obiekie although living separately. On two occasions Obiekie had asked the offender to pick up parcels from the airport, claiming to have told her that he was unable to pick the parcels up himself as he was not an Australian citizen. The offender denied having any knowledge that the packages contained methamphetamine. However, the offender did become suspicious after picking up the first parcel and seeing that it was not addressed to Obiekie. She alleged that he subsequently became violent when challenged. She reluctantly agreed to collect the second parcel in circumstances where the offender was being verbally abusive, and she was concerned of being harmed by him.

127. The offender described the offending as “still very surreal”. She expressed disbelief that a man she was going to marry would place her in danger. She acknowledged she was “an idiot" in assisting with the importation.

128. It is the offender’s intention to return to employment upon her release with the support of the community mental health team. She now has the support of her sister, her sister's boyfriend, and current partner, although regrettably the partner uses drugs and has a history of criminal offending. The offender reported that she was being held at a maximum security prison, being kept with offenders who had committed serious offences including armed robbery and murder. She reported being "very scared" and not sleeping most nights. She reported difficulty with breathing and crying a lot.

129. Dr Kwok considered that the offender met the criteria for mental impairment in accordance with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. The offender suffered from major depressive disorder, exacerbated by her incarceration. Whilst her depression and substance use might be related, the offender had indicated that she had mainly used marijuana to manage chronic pain from arthritis and lupus. The offender’s depression was long-standing, and it was likely that she was suffering from the condition at the time of the alleged offence. The offender’s ability to engage in rational thinking was likely affected by substance use and her feelings of fear within what she alleged was a physically and emotionally abusive relationship. Dr Kwok considered that the offender’s condition could be treated in the community using a combination of medication and cognitive behavioural therapy. In this context it was recommended that the offender receive psychological intervention including education on relationships and domestic violence.

130. Dr Kwok concluded that the offending was best understood in the context of an abusive relationship with Obiekie at the time of the offending, in addition to her poor coping skills and lack of access to external support. This was in the context of Obiekie being physically and emotionally abusive which had created a sense of fear. Importantly however, Dr Kwok did not get the sense that the offender was attempting to use this to justify her behaviours. On the contrary, the offender openly acknowledged that she had helped the offender obtain the packages and demonstrated an understanding of the illegality and severity of the offence. However, it was unlikely, given her vulnerability and depression, that she possessed this level of insight and reasoning at the time the offence was committed.

131. It was recommended that the offender seek mental health assistance upon her release from custody. Dr Kwok considered that the offender had a low risk of reoffending and posed a low risk to the community. In the event she was sentenced to incarceration, there would be greater burden on the offender as she would not be able to engage the mental health support which she would otherwise receive in the community. In this context it was widely accepted that the risk of self-harm and suicide would increase dramatically whilst incarcerated.

Report of Dr Richard Furst, psychiatrist dated 19 November 2022

132. The offender provided a similar history to Dr Furst in an assessment performed via AVL on 25 October 2022. The offender had reported early symptoms of depression including tearfulness, lack of motivation, low energy levels and difficulty concentrating. There was a history of deliberate self-harm dating back to around the age of 16 which continued over a period of 3 to 4 years. The offender had been treated with various prescription antidepressant medication in the years since. The offender also reported the suicide attempt in July 2022 shortly before the commencement of the trial, involving the drinking of floor cleaning solution. The offender confirmed her use of cannabis from teenage years and her “dabbling” in ice.

133. The offender confirmed a diagnosis of lupus in 2008 with complications including arthritis, especially in the fingers, knees and ankles, and chronic pain. The offender also confirmed a diagnosis of an underactive thyroid requiring thyroid replacement therapies and obstructive sleep apnoea.

134. The offender confirmed that the offences occurred whilst in an abusive, jealous, and obsessive relationship with Obiekie. The relationship involved Obiekie being controlling and demanding that she do things for him. The relationship became increasingly abusive, and looking back, the offender feels that she was used. On mental state examination, the offender’s mood was low and anxious. She was particularly stressed in circumstances where she was in custody for the first time with fellow inmates convicted of murder and robbery.

135. Dr Furst confirmed that the offender had a history of anxiety, emotional instability, and depression dating back to her teenage years. Symptoms described were indicative of a recurrent major depressive disorder, most likely with underlying borderline personality traits. The offender was also diagnosed with a substance use disorder and the lupus diagnosis was confirmed. Dr Furst considered the offender was manifesting features of the diagnosed mental disorders at the time of her offending. Antidepressant medication had assisted in reducing the symptoms of anxiety, depression, tearfulness, and low motivation. The offender’s report of having no memory of her childhood up to the age of 13, coupled with previous protracted self-harming behaviours, borderline personality structure, subsequent depression, anxiety, and addiction issues were all highly suggestible of childhood trauma/sexual abuse victimisation, making that the most likely reason for her psychopathology and adjustment difficulties in her adolescence and adult years.

136. Dr Furst considered that the offender’s underlying depression, physical pain, and her relationship with Obiekie were all factors that contributed to and maintained her use of methylamphetamines in 2020, with her drug use, in turn, likely being the primary motivation for her participation in the offending in question. The offender would need psychological support and access to ongoing antidepressant medication.

137. It was likely that the offender would struggle emotionally in custody because of her borderline personality trait, depressive tendencies, lupus and pain complications. Further, it was likely that a custodial sentence would exacerbate the offender’s mental health problems and her physical problem. Accordingly, a custodial sentence would be more onerous than for the average offender.

138. Whilst the offender was aware of her actions and their wrongfulness, it was likely that she was vulnerable to the influence of Obiekie as he was her intimate partner at the time and was reportedly controlling her.

Sentencing Assessment Report

139. Ms Garaty advised that she had no family support and relied solely on the support of her new partner. She had one adult son with whom she had no contact. Despite reportedly having a stable employment history, the offender advised that she was unemployed and in receipt of Centrelink benefits prior to her incarceration. She had ceased employment in late 2021 due to becoming homeless at the time. Her criminal history commenced in 2017 consisting of minor drug and traffic offences and in the circumstances of the current offences, represented a significant escalation in severity. The offender denied any knowledge of her offending, claiming that she had collected a package on behalf of her partner, oblivious to the fact that it contained illicit drugs. She conceded that there may have been something “dodgy" involved due to her partner’s aggressive response when questioned, but believed he was importing artefacts from his home without declaring them. She admitted that her actions were “stupid and naïve”. She had been using cannabis on a daily basis and methamphetamines on a weekly basis at the time of the offending, although denied this had any impact. She had been previously medicated for depression since teenage years. She had been compliant with her medication regime and stable at the time of the offending. She did advise that she was experiencing sporadic domestic violence form her co-offender at the time of the offending and hence felt intimidated and controlled by him which may have contributed to her lack of assertiveness as to involvement in the offences.

140. The offender acknowledged the impact of her offending on the community, indicating her understanding of the consequences of drug importation of families and individuals, particularly being in custody and being confronted with the long-term effects of drug abuse. She expressed willingness and ability to participate in any required interventions as well as any community service work. The offender had been assessed a medium risk of reoffending. Recommendations were made in the event of any supervised order and she was assessed as suitable to undertake community service work.

Crown submissions

141. The Crown provided written submissions referable to both offenders.

142. It contended that having regard to the objective seriousness of each of the offenders’ conduct, the need for general and specific deterrence, the only appropriate sentence was a term of full-time imprisonment with a non-parole period. The Crown referred to the special provisions when sentencing offenders against both Commonwealth and State law.

143. The Crown referred to the judgment of Johnson J in R v Nguyen; R v Pham (2010) 205 A Crim Report 106 at 72, setting out the relevant principles applicable to the sentencing of serious federal drug offenders for importation offences.

144. The Crown referred to its asserted facts document when considering the respective roles of each of the offenders. Its ultimate submission was that whilst the offenders were exercising an independent mind to each other, Garaty was subordinate to Obiekie in the importations, in that he was providing instructions to her, and she reporting to him. The Crown contended that Obiekie was clearly the primary liaison of the South African contact and was responsible for most, if not all, of the money being remitted to South Africa to pay for the goods. Further, it was contended that Obiekie was the person responsible for the sale of the drugs upon their arrival in Australia. By way of contrast, Garaty’s role was liaising with the freight forwarder in Australia and accepting delivery of the consignment. This left her most exposed to the attention of law enforcement authorities, consistent with her being a lower rank in terms of responsibility compared to Obiekie.

145. The Crown noted that the High Court in R v Pham [2015] HCA 39 emphasised that whilst drug weight would not automatically be the "controlling" factor relevant to the assessment of the seriousness of the offence, it would usually be relevant to this issue depending upon the particular case. The Crown conceded that the quantity imported by the offenders in respect to the second consignment was at the lower end of the commercial quantity threshold. Given it was not possible to prove how much methamphetamine was in the first consignment, the only finding the Court could make beyond reasonable doubt was that it was a small quantity, owing to the space available in the VW headlights. The Crown conceded that it was unable to prove that Garaty was aware of the quantity of the drugs being imported, although the same could not be said for Obiekie given the amount of money that was being remitted to South Africa.

146. The Crown contended that financial reward was the obvious motivation for each of the offenders’ involvement and that this was the “common sense inference”, which increased the objective seriousness of the offence. The Crown noted that there was no evidence either offender had employment at the time of the offending, although there was some evidence that Obiekie had some means of earning income through hairdressing. The Crown was not able to point to any specific evidence of financial gain by Garaty in respect to the importations. It contended that part of the motivation appeared to be her romantic attachment to Obiekie.

147. By way of contrast, the Crown contended that there was evidence of “investment" by Obiekie in remitting money to South Africa or arranging for that to be done. Further, there was a means of profiting from the importations in terms of having buyers for drugs given the telephone messaging and the scales located in his room. In this respect, in relation to count 3 (supply), the Crown contended that it was “part of a planned or organised criminal activity" by Obiekie in terms of his acquisition of drugs by means of related, but distinct, criminal activity arising from the importations.

148. It was noted that the offending for both offenders form part of a course of conduct consisting of a series of criminal acts of a similar nature and that accordingly this would be taken into account in the sentencing process.

149. Whilst Obiekie had no criminal history, the Crown contended that there was nevertheless an important role for specific deterrence to play in the context of his offending. The Crown noted that given Garaty had a minor criminal history there was a need for the sentence to reflect an appropriate level of specific deterrence. Further, the Crown contended, citing Wong v R (2001) 207 CLR 584, that principles of general deterrence and denunciation were fundamental considerations when sentencing an offender for a drug-related offence, and that these considerations would generally outweigh subjective circumstances, particularly in the determination of a total sentence. It was contended that stern punishment would be warranted in almost every case given the impact of drug importation and distribution. In this respect, the sentence must be of a severity that would act to deter others from engaging in activities to import illicit drugs, and be a signal to future offenders that the prospect of financial gain from such activities are neutralised by the risk of severe punishment.

150. The Crown contended that although the offences related to the same type of drug, each of the two importations represented a distinct criminality and a sentence for one of the offences could not wholly encapsulate the criminality of the other. Accordingly, the overall sentence must reflect a not insignificant degree of partial accumulation.

151. The Crown discussed the relevance of the prospect of deportation, clearly relevant to the offender Obiekie. It noted that in general terms the authorities did not consider that the prospect of deportation would be relevant in the sentencing process. However, the Crown noted a number of authorities to the effect that the prospect of deportation was a factor which may be relevant in sentencing, in that an expectation of deportation upon completion of a sentence may increase the burden of imprisonment, and that the deportation may reflect a loss of opportunity to settle in Australia, thereby constituting additional punishment.

152. The Crown referred to a number of cases to assist in the sentencing process whilst acknowledging that consistency in federal sentencing was not demonstrative or required numerical equivalence citing Hili; Jones v R (2010) 240 CLR 520 at 535.

153. In oral submissions, the Crown further expanded on its submissions regarding the respective roles of Garaty and Obiekie, including their respective involvement in the financial transfers. The Crown further addressed the objective seriousness arising from Garaty’s involvement in the importations. The Crown noted that Garaty was the person most exposed and therefore was generally lower in the organisational structure of the importation. However, the Crown contended that Garaty was still engaged in the ongoing importation arising from both counts, and accordingly her criminality would be considered higher than a person merely collecting a package. This included being involved in the transfer of funds. Further, in respect count 5, Garaty was engaged with the customs clearance personnel, and those at Menzies in the collection of the package. The Crown contended that Garaty was more deeply involved than a “courier".

184. These principles are particularly apt in relation to the subjective case for the offender on sentence. Indeed, in the circumstances of the present case, the Court’s response to the history provided to Dr Ahmed, and the handwritten statement to the Court, goes beyond treating such evidence with scepticism. Rather, as properly conceded by Counsel for the offender, assertions by the offender that his mother was the victim of a rape at the hands Boko Haram, with consequences involving his father, were patently untrue.

185. This is particularly troubling. The Crown, on sentence hearings in this Court, routinely do not object to such material being placed before the sentencing judge in the absence of sworn evidence from the offender. Whilst mindful of the constraints enunciated in decisions such as Qutami and Imbornone, the Court receives and considers such material in good faith. The only reasonable inference is that the offender has concocted a story of alleged violence perpetrated on his parents by Boko Haram in an attempt to mitigate penalty.

186. In the circumstances, I am not satisfied on the balance of probabilities that either of the offender’s parents died in circumstances alleged in the histories contained in the report of Dr Ahmed or the offender’s handwritten statement. Further, I am not satisfied on the balance of probabilities that the offender left Nigeria in the circumstances alleged in those histories. I cannot be satisfied on the balance of probabilities that the offender was exposed to any particular violence whilst living in Nigeria. I reject the reliance by Counsel for the offender on a Refugee Review Tribunal decision number 1/37716 [2002] RRTA 838. It was contended that I would accept the findings contained in that decision as to the domestic circumstances in Nigeria pertaining to the development of vigilante groups that added to communal tensions with violence between gangs of young men of different ethnicity and violence on the part of vigilante groups. Whilst it is indisputable that these unfortunate circumstances have occurred in the past in Nigeria, it is a quantum leap to therefore find that the offender was exposed to such violence.

187. The offender’s untruths in respect to the alleged violence perpetrated on his parents by the Boko Haram terrorist group leads the Court to the position that it cannot be satisfied on the balance of probabilities of the circumstances leading to the offender’s migration to Australia, and in particular, the alleged death of his closest friend in violent circumstances. Indeed, the offender told Dr Ahmed that just prior to coming to Australia he was under threat in relation to a robbery. This is to be contrasted with the offender’s hand written statement of the difficulties in South Africa resulting in a “bloody fight” against South African locals resulting in his closest friend being shot dead. He alleged that it was in these circumstances he fled South Africa and migrated to Australia.

188. The report of Dr Ahmad is fundamentally premised upon the history provided by the offender as to his personal and development history with a particular emphasis on his traumatic experiences traversed above. In the circumstances no weight can be given to the opinions contained in that report.

189. The offender is to be sentenced in respect to two Federal offences and one State offence.

190. Pursuant to s 16 A (1) of the Crimes Act, in determining the appropriate sentence to be passed in respect to any person for a federal offence, a court must impose a sentence that is of a severity appropriate in all the circumstances of the offence.

191. Further, the offender is to be sentenced pursuant to the considerations listed in s 16A (2) of the Act, to the extent that they are relevant and known to the Court. That said, common-law sentencing principles are applicable to the sentencing for federal offences including principles of general deterrence, proportionality, and totality (Johnson at [25]; Bui at [18]).

192. As the High Court observed in Wong at [64] per Gaudron, Gummow and Hayne JJ:

“In relation to the offence of being knowingly concerned in the importation of heroin, like features can be identified as bearing upon the formulation of applicable principles. Those features include the difficulty of detecting the offence and the great social consequences that follow from its commission. The former suggests that deterrence is to be given chief weight in the sentencing task; the latter, that stern punishment will be warranted in almost every case. Those features will also include those that differentiate between particular cases: the quantity of drug involved, the offender's knowledge about what was being imported, the offender's role in the importation, the reward which the offender hoped to gain from participation. All these are matters properly to be taken into account in determining a sentence. We deal later with the significance to be given to the weight of the drug imported. In general, however, the larger the importation, the higher the offender's level of participation, the greater the offender's knowledge, the greater the reward the offender hoped to receive, the heavier the punishment that would ordinarily be exacted. It is by these kinds of criteria that comparisons are to be made between examples of the offence and the sentences that are or were imposed. Our purpose in mentioning these matters is, however, not now to attempt an exhaustive statement of relevant factors, or to attempt some formulation of applicable principles. What is important for present purposes is that it is all of the matters mentioned, and others, including those mentioned in Pt 1B of the Commonwealth Crimes Act, which should be taken into account in formulating applicable principles.”

193. In Nguyen; Pham, Johnson J (with whom Macfarlan JA and RA Hulme J agreed), provided a list of general propositions which emerge from the authorities when sentencing for drug importation offences.

194. The presence of drugs in the community remains a significant problem. It has a profound impact on society generally, and more specifically for those who use prohibited drugs. It is the importation of prohibited drugs, which fundamentally enables their use in society. It is in this context that the High Court observed in Wong that the difficulty of detecting importation offences suggests that deterrence is to be given significant weight in the sentencing task and the social consequences that follow from the commission of importation offences demands stern punishment in almost every case.

195. In respect to the State offence, the Court is to have regard to the matters contained in s 21A of the Crimes (Sentencing Procedure) Act1999 (NSW) together with the purposes of sentencing contained in s 3A of that Act.

The drug importation offences – Counts 1 and 2

The nature and circumstances of the offence: s 16A(2)(a)

196. Reference has already been made to the importation, and more specifically, the offender’s acts of importation. For the reasons earlier discussed, I am satisfied beyond reasonable doubt that the offender was primarily responsible for the importations, and whilst Garaty assisted with those importations, this was done under the direction and guidance of the offender.

197. In respect to the VW importation, given the quantity is unknown, the offender is to be sentenced on the basis that the importation was a de minimus amount. The BMW importation was at the lowest end of the commercial quantity threshold. I am satisfied beyond reasonable doubt that the offender was aware generally of the quantity of drugs being imported in respect to the second importation, given my findings as to his level of involvement in that importation.

198. Consistent with the judgement of Johnson J in Nguyen; Pham, I am satisfied beyond reasonable doubt that the offender was importing the drugs for profit. I am comforted in such a finding given the messaging in which the offender was engaged with CARR, which I find related to the potential sale of the drugs the subject of the second consignment.

199. I find, given the offender’s involvement in the first importation, and the quantity involved, that the offence falls within the low to mid range of objective seriousness. In respect to the second importation the offence falls within the mid range of objective seriousness.

Part of a course of conduct: s 16A(2)(C)

200. The importations, self-evidently, involved a course of conduct spanning some months. However, I accept that this cannot be considered an aggravating factor given the offender is to be sentenced in respect to each offence: Clinton per Schmidt J at [23] to [28].

Specific deterrence: s 16A(2)(j)

201. As previously observed, there is a need for specific deterrence. The offender continues to deny any involvement in the importations. The offender told the author of the sentencing assessment report that he did not have any involvement or knowledge of the drug importation scheme. The offender claimed that it was Garaty who had arranged everything, and while he had suspected something was going on, he did not know the details. He further alleged that the messages on his mobile phone, as well as the drugs located at his accommodation, were attributable to Garaty, who had full access to his mobile phone and property.

202. It is appropriate to observe that it was the offender’s case at trial that the drugs contained in the safe were not his, and that it was open to the jury to find that the drugs belonged to Garaty. Counsel for the offender, having traversed the evidence in this respect, put the following to the jury:

“The question is whether the Crown has excluded as a reasonable possibility that Ms Garaty kept some thing or things of hers in the safe, and that those two bags of methamphetamine were among the items".

203. The jury's verdict in respect to count 3, is consistent with the rejection of this case, and self-evidently was consistent with a finding, beyond reasonable doubt, that the drugs belonged to the offender. Despite these findings, it is apparent that the offender continues to maintain his innocence in respect each of the offences and indeed continues to impart total blame on Garaty.

General deterrence: s 16A(2)(ja)

204. The Crown contends that “the principles of general deterrence and denunciation are fundamental considerations when sentencing an offender for a drug-related offence, and that such considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence” (Parris v R [2013] NSWCCA 5 at [35]). In particular, the Crown relied upon the judgment of the plurality in Wong at [64] set out above.

205. It is necessary to approach this submission with some caution given these comments were qualified, the plurality noting that such observations were not in an attempt to formulate applicable principles, or to set out an exhaustive statement of the relevant factors in sentencing. As observed by the Court of Appeal in Totaan v R (2022) 365 FLR 69; [2022] NSWCCA 75, s 16A(2) provides a non-exhaustive list of matters the Court is required to take into account in determining the appropriate sentence. Deterrence (s 16A(2)(j)) is just one of the matters the Court must take into account. As the Court observed, s 16A does not create a hierarchy of matters to be considered.

206. In Wong the High Court was emphasising the importance of deterrence in the sentencing process for drug importation matters. The sentence must reflect general deterrence from being involved in the importation of prohibited drugs, as well as the individual deterrence relating to the offender. In determining the appropriate sentence, I have taken into account the particular importance of deterrence, consistent with the observations of the plurality in Wong.

Prospects of rehabilitation: s16A(2)(n)

207. The offender’s ongoing denial of any involvement in the importations, and his attempts to attribute the importations to Garaty do not bode well in terms of the offender’s prospects for rehabilitation. Further the offender’s statements to the author of the sentencing assessment report that he felt people who dealt drugs were taking “blood money" further demonstrates the offenders’ unwillingness to acknowledge his own involvement in the illicit drug trade. However, I take into account that the offender has actively engaged in courses and work which has been offered during his incarceration to date, suggestive of the offender’s preparedness to educate and acquire skills to assist in his return to the community upon his release. I also take into account the sentencing assessment report that the offender had a medium to low risk of reoffending which was positive in respect to his prospect of rehabilitation.

Character antecedents and background of the offender: s 16A(2)(m)

208. For the reasons traversed earlier, I am not satisfied that a number of the significant events which the offender alleged occurred in his past were actually experienced by him. This creates some difficulty in considering subjective matters when determining an appropriate sentence.

209. However, I accept the testimonial provided on his behalf as to his character whilst in Nigeria although the affidavit of Emmanuel Pinto is of limited relevance given the brief contact in Australia.

210. I accept, by reference to the Bugmy Bar Book, that in passing sentence, I take into account a number of challenges and disadvantages faced by the offender by reason of his background. I accept that the offender would have experienced difficulties integrating into Australian society including the obtaining of stable housing, financial hardship, acquiring employment and feelings of loss of home, family and other connections.

211. I take into account that the offender has been in custody during the height of the Covid 19 pandemic which has resulted in greater hardship than would otherwise be the case. He has also developed several other medical complications whilst in custody.

212. Whilst not a matter specifically addressed by the offender in submissions, the Crown referred to the offender’s prospects of deportation. It noted, by reference to relevant authorities, that because the prospect of deportation was generally irrelevant, an offender who contended that leniency should be extended because the prospects of deportation would make imprisonment more burdensome faced “a high if not insurmountable obstacle". However, the Crown noted that there had been a series of decisions from the Victorian Court of Appeal as well as appellate courts in Victoria and Queensland which had held that the prospect of deportation was a factor which may be relevant in sentencing.

213. I note that the offender does not rely upon the prospect of deportation in respect to sentencing. Given the conflicting authorities, I am not prepared to provide any further discount or otherwise taking into account the prospect of deportation in sentencing the offender.

214. In passing sentence, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offences. It is necessary to ensure that the offender is adequately punished for the offences. I am satisfied that these objectives can only be achieved by imposing a sentence of full-time imprisonment. I am satisfied, in accordance with s 17A of the Crimes Act1914 that, having considered all other available sentences, no other sentence other than imprisonment is appropriate in all he circumstances of the case.

215. As noted above, the offence of importing a substance being a border controlled drug, contrary to s 307.3(1) carries a maximum term of imprisonment of 10 years, whilst the offence of importing a border controlled drug of a commercial quantity, contrary to s 307.1(1) carries life imprisonment.

216. I am satisfied that this is an appropriate matter for the Court to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed.

217. In respect to Count 1 on the Indictment, namely import border controlled drug contrary to s 307.3(1) of the Criminal Code, the appropriate sentence is imprisonment for 4 years.

218. In respect to Count 2 on the Indictment, namely import border controlled drug, being of a commercial quantity, contrary to s 307.1(1) of the Criminal Code, the appropriate sentence is imprisonment for 11 years.

219. In relation to the Federal offences of Counts 1 and 2, I accept the Crown's submission that there must be some degree of accumulation given the distinct and separate acts of importation, albeit within a relatively short period. Taking into account the need for some accumulation between sentences, a total aggregate sentence of 12 years and 6 months is appropriate.

Drug supply – Count 3

220. As noted above, the Court is required to take into account the purposes of sentencing contained in s 3A of the Crimes (Sentencing Procedure) Act as follows:

1. Ensuring that the offender is adequately punished for the offence.

2. Preventing crime by deterring the offender and other persons from committing similar offences.

3. Protecting the community from the offender.

4. Promoting the rehabilitation of the offender.

5. Making the offender accountable for his or her actions.

6. Denouncing the conduct of the offender.

7. Recognising the harm done to the victim of the crime and the community.

221. Further, it is necessary to take into account aggravating, mitigating and other factors in sentencing.

222. In respect to the aggravating factors, I am satisfied that the offence was committed for financial gain, in respect to the sale of illicit drugs. I am satisfied that the offence was not part of a planned or organised criminal activity, and I also note that the offender is a person of otherwise good character. Reference has already been made to the offender’s prospects of rehabilitation and the lack of remorse.

223. As previously observed, illicit drugs remain a significant problem in the community. The supply of drugs only serves to perpetuate these difficulties. In the circumstances, both general and specific deterrence loom large. It is also appropriate that the offender be made accountable for his actions including his conduct in the involvement in the illicit drug trade. It must be denounced. The sentence must also recognise of the harm done to the community.

224. I am satisfied the offence falls within the low range of objective seriousness.

225. I am satisfied that the s 5 threshold has been crossed, and having considered all possible alternatives, am of the opinion that no penalty other than full-time imprisonment is appropriate.

226. In respect to Count 3 on the Indictment, namely supply a prohibited drug (11.4g of methylamphetamine) contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act, the appropriate sentence is imprisonment for 3 years, with a non-parole period of 2 years.

Sentencing for both State and Federal offences

227. Given the Court is sentencing the offender in respect to both Federal and State offences, aggregate sentences cannot be imposed in respect to all three offences. Further, the Court cannot impose a single non parole period in respect of both Federal and State terms of imprisonment: s 19AJ Crimes Act.

228. The Court therefore must direct when the Federal sentence imposed commences following the conclusion of the sentence for the State offence: s 19(3) Crimes Act.

229. It is therefore necessary to consider whether the Federal and State offences should be served concurrently or cumulatively. I find that it is appropriate there be a degree of concurrency between the Federal and State offences to the extent of 12 months.

230. The offender was arrested on 28 November 2020 for these offences and has remained in custody since that date. Accordingly, the sentence is to be backdated commencing from the date of his arrest.

Garaty Submissions

231. The offender contended that on any objective view of the evidence adduced at trial she was “subordinate" to Obiekie in the importation of both consignments. The offender adopted the Crown's submission that the offender was “at a lower rank in terms of responsibility compared with Obiekie”. The offender noted the Crown's concession that it was unable to point to any specific evidence that the offender was motivated by financial gain but rather, the evidence appeared to suggest that she was motivated by her romantic attachment to Obiekie. The offender relied upon evidence adduced at trial in this respect. It was contended that the offender’s moral culpability for the crimes was reduced by reason of the influence of Obiekie in the commission of the offences.

231. The offender noted the diagnosis of a major depressive disorder which was long-standing, being a condition from which she was likely suffering at the time of commission of the offences. The offender highlighted the various matters contained in the expert reports including the likely lack of insight. Given the psychological condition the Court was reminded of the principles in DPP v De La Rosa (2010) NSWCCA 194 when contending that the Court would find the offender’s moral culpability was reduced and that the need to denounce the crime may also be reduced by reference to that condition. Further, the Court would consider that a custodial sentence would weigh more heavily upon the offender given her condition.

232. It was contended that the offender’s prospects of rehabilitation were good in the context of the offender being generally a law-abiding citizen and was now incarcerated for the first time. It was hoped that the offender would take advantage of services available within prison to assist in treating her various conditions. Whilst it was acknowledged that each of the consignments represented two separate and distinct acts of criminality, it was noted that the first offence would only have involved a small quantity of drugs, and it is indeed arguable whether the s 5 threshold had been crossed for this offence. It was contended that any sentence imposed for the more serious count 5 offence could adequately “comprehend and reflect” the criminality of the offending involved in respect to count 4, given the conduct of the offender was similar in respect to both importations, the offences occurred within a relatively short time and the extent to which they may have been part of a similar criminal episode. Accordingly, there would not be any significant accumulation.

233. The offender considered that if a custodial sentence was imposed, that consideration be given to an intensive corrections order, taking into account the requirement of s 66 of the Crimes Sentencing Procedure Act 1999. Further, it was contended that special circumstances would be found so as to vary the statutory non-parole period, such that the offender serve the minimum time necessary in custody to give effect to the general sentencing principles. Finally, it was noted that the offender was taken into custody on 5 September 2022 and any sentence be backdated to that date.

Consideration

235. Reference has already been made to the observations of the plurality of the High Court in Wong and in particular, at [64].

236. Further, as previously noted, Johnson J provided a list of general propositions which emerged from the authorities when sentencing for drug importation offences in Nguyen; Pham.

237. As previously observed, the presence of drugs in the community remains a significant problem. It has a profound impact on society generally, and more specifically for those who use prohibited drugs. It is the importation of prohibited drugs, which fundamentally enables their use in society. It is in this context that the High Court observed in Wong that the difficulty of detecting importation offences suggests that deterrence is to be given significant weight in the sentencing task and the social consequences that follow from the commission of importation offences demands stern punishment in almost every case.

The nature and circumstances of the offence: s 16A(2)(a)

238. Reference has already been made to the importation and more specifically the offender’s acts of importation. The offender's role primarily involved liaising with the freight forwarders and customs agents. In so doing, the offender was primarily responsible for obtaining and using the false identification of her landlord Nguyen. I accept the Crown's submission that the offender was most exposed to the attention of law enforcement. I find that the offender played a subordinate role to Obiekie. I accept that her involvement in the importations was inextricably caught up in her vulnerability and emotional attachment to her co offender and was generally acting in accordance with his directions and requests.

239. That said, the offender must be sentenced on the basis of the jury verdicts that she:

1. engaged in acts in the importation of the substances;

2. knew that there was a substance in the consignments;

3. was aware of a substantial risk that the substances were border controlled drugs; and

4. having regard to the circumstances known to the offender, it was unjustifiable for her to take that risk.

240. In respect to the VW importation, given the quantity is unknown, the offender is to be sentenced on the basis that the importation was a de minimus amount. The BMW importation, comprising 1.661 kg of methamphetamine is at the lowest end of the commercial quantity threshold. In any event, I accept the Crown’s concession that it is unable to prove the offender was aware of the quantity of drugs being imported.

241. I find, given the offender’s involvement in the first importation, and the quantity involved, that the offence falls within the low range of objective seriousness. In respect to the second importation the offence falls within the low to mid range of objective seriousness.

242. Whilst it would ordinarily be inferred that a person importing drugs is doing so for profit (Nguyen; Pham at [72] per Johnson J), in the case of the offender, I am not satisfied beyond reasonable doubt that such an inference can be drawn. There is no evidence that the offender was involved in the importation for financial gain. To the contrary, evidence, particularly the offender’s handwritten diary notes, are more consistent with her motivation being her romantic and emotional attachment to Obiekie. This is also consistent with the histories provided by the offender to Dr Kwok and Dr Furst.

Part of a course of conduct: s 16A(2)(c)

243. The importations, self-evidently, involved a course of conduct spanning some months. The offender’s role across the two importations was generally similar, being involved in the communication with the freight forwarders and customs agent, including provision of the false identification. However I accept that this cannot be considered an aggravating factor given the offender is be sentenced in respect to each offence: Clinton per Schmidt J at [23] – [28].

Specific deterrence: s 16A(2)(j)

244. As previously observed, there is a need for specific deterrence, although in the case of the offender, this is not a significant as general deterrence. It is apparent that the offender’s conduct was inextricably entwined in her relationship with Obiekie. However, the offender, in the expert reports, has freely acknowledged the stupidity of her actions and now appreciates the very serious consequences.

General deterrence: s 16A(2)(ja)

245. The Crown contends that “the principles of general deterrence and denunciation are fundamental considerations when sentencing an offender for a drug-related offence, and that such considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence” (Parris at [35]). In particular, the Crown relied upon the judgment of the plurality in Wong at [64] set out above.

246. It is necessary to approach this submission with some caution given these comments were qualified, the plurality noting that such observations were not in an attempt to formulate applicable principles, or to set out an exhaustive statement of the relevant factors in sentencing. As observed by the Court of Appeal in Totaan, s 16A(2) provides a non-exhaustive list of matters the Court is required to take into account in determining the appropriate sentence. Deterrence (s 16A(2)(j)) is just one of the matters the Court must take into account. As the Court observed, s 16A does not create a hierarchy of matters to be considered.

247. In Wong the High Court was emphasising the importance of deterrence in the sentencing process for drug importation matters. The sentence must reflect general deterrence from being involved in the importation of prohibited drugs, as well as the individual deterrence relating to the offender. In determining the appropriate sentence, I have taken into account the particular importance of deterrence, consistent with the observations of the plurality in Wong.

Prospects of rehabilitation: s 16A(2)(n)

248. I find the offender has good prospects of rehabilitation given the contents of the reports of Dr Kwok and Dr Furst. The contents of those reports are consistent with the offender confronting her personal and psychological history and seeking to address the issues arising therefrom. The offender told Dr Kwok that when she returns to the community she would like to return to employment and “get my old life back” with the support of the community mental health team.

249. Dr Kwok was of the opinion that the offender had a low risk for reoffending in circumstances where the offender’s psychological condition could be appropriately treated in the community with a combination of psychological therapy and medication.

Character antecedents and background of the offender: s 16A(2)(m)

250. The two expert reports attest to the offender’s difficulties in her formative years. Dr Furst observed that the offender’s lack of memory of her childhood up to the age of 13 years, together with her psychological issues, were suggestible of childhood trauma/sexual abuse victimisation. The offender told Dr Kwok that she was subjected as a child to physical punishment, such as belting, in circumstances where her mother was “a very cruel person". The reports also document the difficulties surrounding her mother's death and subsequent estrangement from her immediate family and her only child. The reports attest to the fact that the offender’s condition at the time of the offending was likely to have affected her ability to engage in rational thinking.

251. The diagnosis of the two medical experts is corroborated by the further agreed facts admitted in the trial (Exhibit 36) that the offender was diagnosed with depression in 2015 and had reported to Police after arrest that she was taking medication for severe depression and anxiety.

252. There are clearly physical and psychological health issues which will be further addressed and treated on the offender’s release.

253. In passing sentence, the Court must impose a sentence that is of a severity appropriate in all the circumstances of the offences. It is necessary to ensure that the offender is adequately punished for the offences. I am satisfied that these objectives can only be achieved by imposing a sentence of full-time imprisonment. I am satisfied, in accordance with s 17A of the Crimes Act that, having considered all other available sentences, no other sentence other than imprisonment is appropriate in all he circumstances of the case.

254. I am satisfied that this is an appropriate matter for the Court to invoke s 53A of the Crimes (Sentencing Procedure) Act and impose an aggregate sentence. It will be necessary for me to indicate what sentences would have been imposed had separate sentences been imposed.

255. As noted above, the offence of importing a substance being a border controlled drug, contrary to s 307.3(1) carries a maximum term of imprisonment of 10 years, whilst the offence of importing a border controlled drug of a commercial quantity, contrary to s 307.1(1) carries life imprisonment.

256. In respect to Count 4 on the Indictment, namely import a border controlled drug, contrary to s 307.3(1) of the Criminal Code, the appropriate sentence is imprisonment for 2 years 6 months.

257. In respect Count 5 on the Indictment, namely import border controlled drug, being of a commercial quantity, contrary to s 307.1(1) of the Criminal Code, the appropriate sentence is imprisonment for 7 years.

258. I accept the Crown's submission that there must be some degree of accumulation given the distinct and separate acts of importation, albeit within a relatively short period. Taking into account the need for some accumulation between sentences, a total aggregate sentence of 8 years 6 months is appropriate. I find that an appropriate non parole period is 4 years 6 months.

259. The offender was remanded in custody on 5 September 2022, following the guilty verdicts in relation to the charges. She has remained in custody since that date. Accordingly, the sentence is to be backdated commencing from 5 September 2022.

Orders

Christopher Obiekie

1. The offender is convicted.

2. In relation to Count 3 on the Indictment, namely supply a prohibited drug (11.4g of methylamphetamine) contrary to ss 25(1) and 29 of the Drug Misuse and Trafficking Act, I impose a sentence of imprisonment for 3 years, to date from 28 November 2020 and to expire on 27 November 2023.

3. I impose a non-parole period of 2 years to date from 28 November 2020 and to expire on 27 November 2022.

4. In relation to Counts 1 and 2 on the Indictment, I impose an aggregate sentence of imprisonment for 12 years and 6 months, to date from 27 November 2021 and to expire on 26 May 2034.

5. I impose a non-parole period of 8 years to date from 27 November 2021 and to expire on 26 November 2029.

6. The earliest date the offender is eligible to be released on parole is 26 November 2029.

Nicole Garaty

1. The offender is convicted.

2. In relation to Counts 4 and 5 on the Indictment, I impose an aggregate sentence of imprisonment for 8 years and 6 months, to date from 5 September 2022 and to expire on 4 March 2031.

3. I impose a non-parole period of 4 years 6 months to date from 5 September 2022 and to expire on 4 March 2027.

4. The earliest date the offender is eligible to be released on parole is 4 March 2027.

Amendments

23 January 2023 - Decision date amended

Decision last updated: 23 January 2023