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R v Ogochukwu

R v Ogochukwu

Case [2004] NSWCCA 473 29 October 2004

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ogochukwu

Details

AGLC: Regina v Ogochukwu [2004] NSWCCA 473
Case: [2004] NSWCCA 473
Decision Date: 29 October 2004

CaseChat Overview and Summary

The appeal arose from a conviction for importing a prohibited substance, namely cocaine, into Australia. The appellant was found guilty in the County Court and was sentenced to imprisonment. The Court of Appeal was tasked with reviewing the sentence imposed by the trial judge, specifically whether the non-parole period constituted an error and if the overall sentence was excessive. The key issue before the court was whether the trial judge had erred in imposing a non-parole period that he had previously reasoned should be the head sentence. Additionally, the court needed to determine if the sentence was excessive given the totality of the circumstances.

The court examined the reasoning provided by the trial judge at the time of sentencing. The trial judge had indicated that the non-parole period should form the head of the sentence, yet ultimately imposed a sentence with a longer non-parole period. The appellate court considered whether this constituted an error in principle and if it warranted a reduction in the sentence. Furthermore, the court assessed the overall sentence in light of the statutory guidelines and the appellant's personal circumstances, including his background and the quantity of the prohibited substance involved.

After thorough analysis, the Court of Appeal found that the trial judge had indeed erred in imposing a non-parole period that he had earlier reasoned should form the head of the sentence. This error required the court to reassess the entire sentencing process. The appellate court determined that while the overall sentence was severe, it was not excessive when considering the statutory framework, the quantity of the prohibited substance, and the appellant's criminal history. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders