R v Ogochukwu

[2004] NSWCCA 473

CITATION:	Regina v Ogochukwu [2004] NSWCCA 473
HEARING DATE(S):	29 October 2004
JUDGMENT DATE:	29 October 2004
JUDGMENT OF:	McClellan AJA at 1; Adams J at 33; Smart AJ at 37
DECISION:	1. Application for leave granted; 2. Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - appeal - importation of a prohibited import - quantity not less than trafficable quantity - whether trial judge erred in imposing a non-parole period that he had previously reasoned should be the head sentence - whether sentence excessive in all the circumstances
LEGISLATION CITED:	Customs Act 1901 (Cth) s 233B(1)(d) Crimes Act s 17A, 16G
CASES CITED:	Queen v Olbrich (1999) 199 CLR 270 R v Che Yook & Sae Sung (1995) 84 A Crim R 432 R v Ho [1999] NSWCCA 440 R v Hollins (unreported, NSWCCA, 31 May 1996 R v Jason Paul Morgan (1993) 70 A Crim R 368 R v Lawless (unreported, NSWCCA, 24 June 1994 R v Taru [2002] NSWCCA 391 R v Wong & Leung (1999) 48 NSWLR 340 R v Yu [1999] NSWCCA 6 Wong & Leung v The Queen (2001) 207 CLR 584
PARTIES :	Crown (Cth) (Resp) Iraenus Ogochukwu (Appl)
FILE NUMBER(S):	CCA 60074/04; 2004/1823
COUNSEL:	M M Cinque (Resp Crown) D Brezniak (Appl)
SOLICITORS:	Commonwealth Director of Public Prosecutions (Resp) Legal Aid Commission of NSW (Appl)

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	01/11/1148
LOWER COURT JUDICIAL OFFICER :	Taylor DCJ

60075/04

McCLELLAN AJA
ADAMS J
SMART AJ

FRIDAY, 29 OCTOBER 2004

REGINA v Ireanus UGOCHUKWU

Judgment

1 McCLELLAN AJA: On 15 February 2002 the applicant was found guilty of being knowingly concerned in the importation of a prohibited import contrary to s 233B(1)(d) of the Customs Act 1901 (Cth), namely narcotic goods consisting of a quantity of heroin, being not less than the trafficable quantity applicable to heroin.

2 The quantity of pure heroin the subject of the charge was 217.9 grams. The trafficable quantity of heroin under Schedule VI of the Customs Act is 2 grams pure. The maximum penalty prescribed for the offence is twenty-five years imprisonment and/or a fine of $500,000.

3 The applicant was found guilty by a jury and was sentenced on 19 April 2002 by Taylor DCJ to imprisonment for seven years and four months with a non-parole period of five years. In his remarks on sentence, the sentencing judge said:

"In my opinion a sentence of 11 years imprisonment is appropriate for this sentence. I adjust that sentence pursuant to section 16G to seven years and four months. The sentence is further reduced to five years by reason of the subjective factors. The offender has been in custody since 15 February. He also spent 11 days in custody, bail refused, following his arrest. Ireanus Ugochukwu is convicted and sentenced to seven years and four months imprisonment. The sentence is taken to have been commenced on 4 February 2002 and I impose a non-prole period of five years to expire on 3 February 2007."

4 The applicant seeks leave to appeal and advances the following grounds of appeal:

1. His Honour erred in the imposition of sentence in imposing as a non-parole period a period in respect of which his Honour had previously reasoned should be the head sentence.

2. That the sentence imposed upon the appellant is excessive in all of the circumstances.

5 The facts found by the sentencing judge were that on 10 June 2001, officers from the Australian Quarantine Inspection Service identified a package from a random search which had arrived in Australia as postal mail through Australia Post. The package, which had arrived from Bangkok, Thailand, was examined and found to contain a black handbag, a pair of shoes, clothing and three envelopes. The package was x-rayed. This revealed a substance secreted in another package in the handbag. The package was then transferred to the Australian Customs Service.

6 On Monday 11 June 2001 the applicant attended the Formule-1 Motel, 178 Princes Highway, St Peters and prepaid in cash for a room from Tuesday 12 June to Thursday 14 June 2001. The applicant stated that he was booking the room for a friend from overseas.

7 On Tuesday 12 June, members of the Australian Federal Police, notified by the Australian Customs Service that the package had been seized, took possession of the package. The police physical evidence team found fine white powder concealed in the front and back of the handbag. Analysis revealed that the powder was heroin, the total weight being 326.6 grams. The package was reconstructed with an inert substance replacing the heroin and consigned to "Ms Fiaona Dickson, Motel Formule-1, 178 Princes Highway, St Peters, 2044, New South Wales, Australia, 02-9519 0685." The consignor details marked on the package were as follows: "Supranee Phintong, 87 Wireless Road, Lumpini Patumwan, Bangkok, 10330 Thailand 01-2916145."

8 The Federal Police attempted to deliver the reconstructed package to the motel on Wednesday 13 June 2001 but failed. Later that day, the applicant entered the motel and asked if anything had been delivered in the name of Fiaona Dickson. The staff informed him there was nothing in that name. He was also advised that a courier had attempted to deliver a package and a signature was required to effect delivery. The applicant also requested to extend the occupancy of the room until Friday 15 June 2001, again paying in cash.

9 About 9.29 am on Thursday 14 June 2001, the Federal Police again attempted to deliver the package to room 230. No person was present and the package was unable to be delivered. The Federal Police delivering the package then left an Australia Post calling card instructing the receiver to contact a mobile telephone number to arrange delivery. The Australian Federal Police subscribed to this mobile telephone.

10 At 5.19 pm a female identifying herself as Fiaona Dickson contacted the mobile telephone number left on the calling card. The female stated that she worked late and subsequently made arrangements for the package to be delivered the following day at 9.30am. The female stated that she might send a friend to collect the package on her behalf. Enquiries conducted with Telstra revealed the phone call to have originated from a Telstra pay phone located at 1 Seaview Street, near Marrickville Road, Dulwich Hill, which is approximately 500 metres from the applicant's premises.

11 About 9.19 am on Friday 15 June the applicant was seen entering the motel at St. Peters. A short time later he exited the motel and walked around the outside. He then remained outside the motel. At 9.28 am an Australian Federal Police officer, acting as a courier, attended the motel, whereupon the applicant approached him. The applicant stated that he was waiting to pick up a package. They then entered the foyer of the motel. The applicant then gave the Federal police officer a letter signed by Fiaona Dickson giving authority for the applicant to receive the package. The applicant walked away and exited the reception area of the motel. He then walked to a vehicle and proceeded to get into the car where he was arrested.

12 The applicant was conveyed to the Sydney office of the Australian Federal Police where he declined to participate in a record of interview. The Australian Federal police executed a search warrant at the applicant's residence and found in a rubbish bin a letter similar to the one handed to the courier giving permission to pick up the package. This was apparently signed "F Dickson." Also located during the search was a brochure for the Formule-1 Motel.

13 Enquiries conducted with the Department of Immigration and Multicultural Affairs indicated that the applicant had entered Sydney from overseas between 9 June 2001 and 15 June 2001. The street price of heroin at April 2002 was apparently $70 per cap (0.2 grams). Accordingly, the heroin could have realised approximately $100,000.

14 The sentencing judge found that the applicant was very active in facilitating delivery of the package. His Honour had no doubt that the person Fiaona Dickson did not exist. The sentencing judge found that the applicant booked the room at the motel in St Peters and maintained contact with the reception desk, staffed by one of the managers. He came and went from the motel as the delivery arrangements were delayed. He maintained a deceit concerning Miss Dickson, including the production of a letter of authority. He did everything that was practically open to ensure that he secured the package. However, his Honour found that there was no evidence that the applicant did anything more than facilitate the delivery of the package. He was arrested shortly after he picked it up and his role, if any, in the distribution from that point is not known. This was apparently a single importation of drugs.

15 His Honour found that it was difficult to attribute the applicant with actual knowledge of the quantity of narcotics. However, his Honour also found that the applicant's role in the venture was at the critical point of collection of the narcotics upon entry into Australia. The evidence suggests that the applicant had the role of a courier.

16 The applicant pleaded not guilty and his Honour accordingly found that he has not expressed any remorse or contrition.

17 With respect to subjective matters his Honour found the applicant to be thirty-eight years of age. He emigrated to Australia from Nigeria and is an Australian citizen. At the time of sentencing, he was expecting a child by his partner in a few months. Apart from the offence for which he was being sentenced, the applicant has apparently led an exemplary life in Australia. His Honour found the applicant to have been a hardworking and well regarded businessman by his employer and those who know him socially.

18 The sentencing judge said when fixing the sentence:

"In fixing sentence I have to take into account the subject of remission or reduction and consistent with the principals [sic] explained in DPP v Karahani a reduction of one third is allowed."

19 His Honour also recorded that the applicant had pleaded not guilty and, having regard to the requirements of s 17A of the Crimes Act, his Honour was satisfied that no sentence other than imprisonment was appropriate.

20 His Honour then said:

"Prior good character is of reduced significance in drug matters. The usual leniency extended to a first offender is not of benefit to people convicted of drug offences, R v Payne 105 A Crim R 474. In my opinion a sentence of 11 years imprisonment is appropriate for this sentence.

21 These remarks were immediately followed by the remarks his Honour made as to the adjustment of the sentence to which I have already referred.

Ground One

22 The applicant submits that the apparent confusion in his Honour's remarks as to the steps in computing the appropriate sentence reveals error. It is submitted that his Honour should be understood to have intended to impose a sentence of five years with some lesser non-parole period. I do not accept this submission.

23 Although an error in the expression of the appropriate elements of the sentence has undoubtedly occurred, I am satisfied that the sentencing judge has imposed the sentence which his Honour intended. Although it was expressed as a reduction in the "sentence" for "subjective factors", it is likely that his Honour was intending to refer to the non-parole period which he proposed to impose. In his immediately preceding statement his Honour had indicated that a "sentence of 11 years imprisonment is appropriate for this (offence)" but that this sentence should be adjusted pursuant to s 16G of the Crimes Act. Then, when imposing sentence, his Honour indicated that "the sentence is taken to have been commenced on 4 February 2002 and I impose a non-parole period of five years to expire on 3 February 2007." This statement is clear.

24 Accordingly, in my opinion, although an error may have occurred in his Honour's preliminary remarks, there can be no doubt that his Honour intended to impose a head sentence of seven years and four months with a non-parole period of five years.

Ground Two

25 In support of ground two, the applicant emphasises the fact that the sentencing judge found that there was no evidence that the applicant did other than facilitate the delivery of the package. His role in the distribution of its contents was unknown. Furthermore, it is emphasised that his Honour found that it was not possible to conclude that the applicant knew the actual quantity of narcotics which would be contained in the package. It is submitted that the applicant is to be regarded as at the lower end of the hierarchy involved in an importation of narcotics (see Queen v Olbrich (1999) 199 CLR 270).

26 The applicant's submissions drew attention to the applicant's previous good character. Emphasis is also placed on the fact that the total weight of pure heroin was 217.9 grams and there was no evidence as to the amount of money, if any, which the applicant would have received for his role in the importation. Attention is drawn to other cases which have resulted in an imposition of a sentence of less than that imposed on the applicant (see R v Lawless (unreported, NSWCCA, 24 June 1994: 440 grams, five years head sentence with three years non-parole). Attention is also drawn to R v Yu [1999] NSWCCA 6, R v Ho [1999] NSWCCA 440 and R v Hollins (unreported, NSWCCA, 31 May 1996). It is submitted that there have been a number of cases involving importation of heroin with a longer head sentence but a non-parole period of five years.

27 In my opinion, the sentence which his Honour imposed was within the appropriate range. This Court has, on many occasions, indicated that sentence appeals are not to be determined by a simple comparison with cases in which a lesser (or greater) sentence was imposed: see R v Jason Paul Morgan (1993) 70 A Crim R 368; R v Che Yook & Sae Sung (1995) 84 A Crim R 432. However, assistance can be gained from consideration of a range of sentences imposed in previous cases.

28 This Court considered the appropriate sentences for various drug offences in R v Wong & Leung (1999) 48 NSWLR 340. Although that decision was subsequently quashed by the High Court in Wong & Leung v The Queen (2001) 207 CLR 584, the reasons of the Chief Justice remain of considerable utility, as was pointed out in R v Taru [2002] NSWCCA 391 by Hidden J at [12] (with whom Levine and Howie JJ agreed):

"Those guidelines remain useful notwithstanding the subsequent High Court decision arising from that case, because they were expressed to be based on the existing pattern of sentence at the time that the judgment was delivered. Indeed, much of the judgment of the Chief Justice was devoted to consideration of other cases and the patterns of sentence which emerged from them." (See also R v Marchando [2003] NSWCCA 71; R v Cerullo [2003] NSWCCA 201; R v Rivadavia & Ors [2004] NSWCCA 284.

29 Wong & Leung indicates that a conventional range of sentence for cases involving mid-level trafficable quantities of heroin and cocaine: that is, between 200 grams and 1 kilogram is a head sentence of between 6 and 9 years. This was said to be the range of sentences which may apply to couriers and persons low in the hierarchy of the importing organisation. This range was provided in circumstances where an offender may have pleaded guilty and where he was being sentenced after a trial.

30 In the present case, although the applicant must not be penalised for the fact of his plea of not guilty, it means he was not entitled to any discount for his willingness to facilitate the course of justice nor for any expression of remorse or contrition. The quantity of heroin involved was in the mid-range in circumstances where the trial judge accepted that the applicant must have known that a significant quantity of heroin was being imported. There is no suggestion that the applicant required the drug for his own purposes. The only conclusion is that he was involved for the purpose of obtaining some financial gain.

31 Notwithstanding the fact that the applicant had no prior convictions, both the head sentence and the non-parole period fell within the appropriate range. Although perhaps at the higher end of that range, I see no error in his Honour's decision.

32 I propose that the application for leave be granted but the appeal be dismissed.

33 ADAMS J: As the learned presiding judge has already said, this appeal is in part complicated by some unfortunate language appearing in the sentencing reasons of the learned sentencing judge. The crucial sentence is "the sentence is further reduced to five years by reason of the subjective factors." I agree with McClellan AJA that this appears to be a reference to the non-parole period which his Honour intended to impose. However, it is plain that a non-parole period is not set or reduced by reason of subjective as distinct from objective factors. Both objective and subjective factors are relevant to both the head sentence and the non-parole period.

34 I have, however, come to the conclusion that the sentence, if indeed it is correctly transcribed, was a garbled reference to the sentencing process and did not reflect the egregious error of thinking that a non-parole period is set at a lower level than the head sentence by reason of subjective factors.

35 Accordingly, that sentence must be disregarded. When this is done the balance of the process is clearly set out and demonstrates no error.

36 I agree with the conclusions of McClellan AJA that the sentence itself, although high, is not appealably wrong.

37 SMART AJ: I agree with the judgments which have been delivered.

38 McCLELLAN AJA: The orders of the court are that the application for leave be granted but the appeal be dismissed.

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Last Modified: 07/18/2007