The Queen v Amadi
[2018] VCC 1472
•12 September 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-17-02046 & CR-17-02047
| THE QUEEN |
| v |
| EMEKA OKECHUKWU AMADI |
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JUDGE: | HER HONOUR JUDGE FOX | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 August 2018 | |
DATE OF SENTENCE: | 12 September 2018 | |
CASE MAY BE CITED AS: | The Queen v Amadi & Anor | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1472 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms L. Skoblar | Commonwealth Director of Public Prosecutions |
| For Accused Amadi For Accused Merican | Mr G. Barns | James Dowsley & Associates Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1 Emeka Amadi, you have pleaded guilty to one charge of importing a marketable quantity of a border controlled drug, namely methamphetamine. The maximum penalty for this offence is 25 years imprisonment.
2 Mohamed Merican, you have pleaded guilty to one charge of attempting to possess a border controlled drug, namely methamphetamine. The maximum penalty for this offence is 25 years imprisonment. You have also admitted your prior criminal history.
3 A prosecution summary was tendered on the plea and marked Exhibit A. I will briefly summarise the facts here.
4 A package destined for Australia was received at the Office of Exchange in Lagos, Nigeria, on Thursday, 17 November 2016. That package arrived into Australia on 7 December 2016.
5 The package was addressed to Stella Williams, 50 Nettle Drive, Hallam, Melbourne, Victoria, 3803. The consignee contact number was an Australian mobile telephone number ending in 566. The consignor address was in Lagos, Nigeria. The consignment contents were books, a DVD and a picture frame. Examination by Australian Border Force officers identified suspicious visual anomalies. Further examination identified that concealed within the wooden picture frame were eight cylindrical concealments, each of which contained a crystalline material. Subsequent examination and forensic testing identified that the material was methamphetamine. The total weight of the crystalline material was 384.3 grams with a purity of 61.1 per cent. Accordingly, the total weight of pure methamphetamine in the consignment was 234.8 grams.
6 Further investigations revealed that the consignee name of Stella Williams was not the registered subscriber of the contact mobile number, nor was Stella Williams connected with the consignee address. The consignee address was a residential premises occupied by a woman named Atika Astarsis and her two small children. Ms Astarsis is the ex-partner of the accused, Mr Merican.
7 On Monday, 30 January 2017, a controlled delivery operation was conducted with the fully substituted replica of the consignment. At around 12 pm, AFP officers observed Mr Merican walking in the front yard of the address in Hallam, using a mobile telephone.
(Noise in court.)
8 I am sorry, but the child will need to be quiet or taken outside, please.
9 At around 12.10 pm the controlled delivery was made.
10 Mr Merican answered the front door and had a conversation with the AFP officer, in which he stated that he agreed to accept the delivery for Stella Williams. Mr Merican, you said your name was Richard Morris, signed for the consignment and took the package towards the front door of the residence.
11 At about 12.30 pm Mr Amadi departed from your home address and arrived in a taxi at the Nettle Drive address. He approached the residence on foot while the taxi remained outside, waiting. Mr Amadi entered the house at approximately 12.53 pm. Mr Amadi then exited the residence and returned to the taxi, at which point AFP officers activated a siren and arrested him.
12
At about 12.55 pm AFP members entered the premises at Nettle Drive, Hallam, pursuant to a search warrant. Mr Merican was arrested. Also present were two small children, being the children of Mr Merican and his former partner,
Ms Astarsis. AFP officers contacted Ms Astarsis, who attended the premises and advised the officers that she did not know about the delivery and that
Mr Merican was at the address to look after their children while she was at work.
13 The premises at Nettle Drive, Hallam were searched and a number of items were seized. The substituted consignment was located in the adjacent backyard. The package was intact and had not been opened.
14 Later that day a further search warrant was executed at premises belonging to Mr Amadi. A number of items were seized from the residence and the vehicle, including mobile telephones and electronic devices.
15 Mr Merican, you were interviewed on 30 January 2017. You stated that you were aware that a package from overseas was expected by a friend, Charles, and that Charles (being Mr Amadi) had arrived that day to collect the package. You said you first met Mr Amadi two years ago at a train station. You agreed that you had allowed your premises to be used as an address for the package and that you had signed for and accepted delivery of the consignment. You said Mr Amadi had advised you in advance of the tracking number, and you had seen Mr Amadi the previous week and received a screenshot with the Australia Post information about the package.
16 You said you had attended at Nettle Drive the previous Friday and waited all day for the package to arrive, and had called Australia Post on that day to check on the arrival. You initially said you used your own name to receive the package. Then, that you may have used your own name or Richard Merican. You said you did not know the package would contain drugs and that Mr Amadi never ever told you the contents. You said you thought it would contain soap or some spices, “that we cook”, but on receiving it you thought it, “looked like a photo frame to me”.
17 You said you kept the package inside your shed and you were taking the package to give it to Mr Amadi in the taxi and had it in your hand when you heard the police siren and, “just threw the package over the fence”, because you, “had a feeling this was illegal”.
18 Also on 30 January 2017 you, Mr Amadi, participated in a taped record of interview. You agree you are known by the name Charles, and that you know Mr Merican as Ridz Merican. You said you have sometimes lent Mr Merican money for petrol or lent him your car. You said that you rent premises and that since Saturday, 28 January, you had been fixing the place up for the arrival of your wife and children, who are moving to Australia.
19 You said you had contacted Mr Merican to borrow tools for household preparations and went to see Mr Merican on 30 January 2017 to collect these tools. You said you went by taxi and asked the taxi to wait with the meter running, and went inside to collect the tools you were hoping to borrow. You said you did not ask Mr Merican to collect any packages or receive anything for you, and stated, “if I wanted to receive package I would use my address”. You said you had not seen the package that was delivered that day and did not even set, “eyes on the thing”. You said the reason you had three large ziplock bags with you was because you usually made sandwiches for lunch on a Sunday and you had put these in your pocket the day before.
20 You said you had known Mr Merican for three years and communicated with him by text and audio calls. You gave your mobile telephone number as ending in 482 and said you had previously used a number ending in 319. You said you had no knowledge of the consignment or the importation of methamphetamine.
21 Forensic analysis was carried out on the electronic devices seized. I will not detail the results of that analysis here, save to say that communications between both of you were revealed, including images and communications referencing the consignment tracking number.
22
Further, on Mr Amadi’s iPhone there was an electronic note created on
11 September 2016 as, “job.0402768566”. This is the mobile telephone contact number that was on the consignment.
23 You were both arrested on 30 January 2017 and released on bail the following day, Tuesday, 31 January 2017. You both entered pleas of guilty to your respective charges on 10 October 2017, immediately prior to a contested committal commencing.
24 You both remained on bail until your plea hearing before me.
Offending by Mr Amadi
25
Mr Amadi, you are charged with importation on a single day, being 7 December 2016. You are not charged with attempting to possess the package on
30 January 2017.
26 Mr Amadi, it was submitted on your behalf that you agreed to assist in the importation of the package from Nigeria. Beyond that, no details were provided on the plea as to what you did. It was submitted you were involved in the tracking of the package and delivery to the home of the co-accused’s ex-wife.
27
You facilitated the consignment being sent from Nigeria to Australia, including providing the address of Mr Merican to someone involved in sending the package. You did not use your own address, rather, the address of
Mr Merican’s ex-wife, thus distancing yourself from the package, should it be detected.
28 The prosecution submitted it was a considered decision by you to participate, rather than an impulsive involvement. Once the decision to participate had been made, you remained involved over a number of weeks and, indeed, months. There is no evidence that you were being directed by anyone else, although others must be involved.
29 According to a report of Mr Cummins, clinical and forensic psychologist, dated 27 June 2018 and tendered on your behalf, you told Mr Cummins how you met Mr Merican and told him:
“He stated he and Mr Merican then formed a friendship and he eventually learnt Mr Merican was separated from his wife. He stated that in hindsight he appreciates he was feeling very psychologically vulnerable when he agreed to assist Mr Merican with the delivery from overseas and he stated this occurred after Mr Merican had asked him to assist him with the transfer of some money between Australia and Nigeria.”
30 In effect, Mr Amadi, you told Mr Cummins that you had become involved in this offence through Mr Merican asking you to assist. I raised on the plea with your counsel whether you persisted in this explanation. Your counsel confirmed they remained your instructions.
31
As indicated on the plea, I do not accept the version of events told by you to
Mr Cummins. It is contradicted by the prosecution, Mr Merican, and the objective evidence.
32 The prosecution submitted you did the following things: you facilitated the consignment being sent from Nigeria to Australia; regularly tracked delivery of the consignment; updated Mr Merican on the delivery of the consignment; and attended at the address on the date of the delivery of the consignment. The last three of these things occurred after 7 December 2016.
33 Your actions after 7 December 2016 must be treated cautiously. You are not charged with attempting to possess the package and cannot be punished for conduct with which you are not charged. You actions after 7 December can be used to rebut any suggestion that your offending was spontaneous or instantly regretted or resiled from. They also show your commitment to this importation.
34 I find as a matter of common sense that you were involved in the importation of methamphetamine for profit. There is no evidence to the contrary to rebut such an inference. Unlike Mr Merican, you were not motivated by your own methamphetamine addiction. Your conduct is consistent with being motivated purely by profit.
Offending by Mr Merican
35
Mr Merican, it was put on your behalf that you agreed to assist Mr Amadi by providing a delivery address. I note, however, that you are not charged with being involved in the importation. Your charge is one of attempt to possess, and your criminality is limited to your attempt to obtain the package on
30 January 2017. Rather than provide your own address, you provided the address of your ex-wife or partner, Ms Astarsis. You likely did this in an attempt to distance yourself somewhat from the package, however, you were still going to be there to sign for the package.
36 The package reached the Lagos post office on 17 November 2016, so you must have provided the address to Mr Amadi some time prior to this date. You arranged to be at the delivery address on 30 January 2018, you took delivery of the consignment, you gave a false name at that time, and you then attempted to rid yourself of the package by throwing it over the fence when you heard the police sirens.
Parity
37 You have each pleaded guilty to different charges that reflect a negotiated resolution of your cases. In each of your cases, your criminality is confined to the one charged date. Your pleas have been heard together for reasons of convenience and to minimise the risk of inconsistent findings in my sentencing of each of you.
38 I have considered the principle of parity. This principle is not confined solely to co-offenders, in the sense of persons charged with the same offence. It applies in a broader range of circumstances, including in circumstances such as here, where the offending is in some way related, and where the offenders are part of a common criminal enterprise. I am only entitled to sentence on the basis of objective evidence and the offending conduct as charged. Before I may make a factual finding adverse to either of you, I must be satisfied beyond reasonable doubt of that finding.
39
I have just outlined the matters relied upon by the prosecution in relation to each of you, and how they should be treated. Mr Amadi, I am satisfied beyond reasonable doubt that the only reasonably inference to be drawn from your conduct is that you were a sufficiently trusted and important member of the scheme, to provide the delivery address to the person or persons involved in sending the package, be given the parcel’s tracking number, and provide that information to Mr Merican. In addition, you were in attendance when
Mr Merican was due to receive the package and you were the person he was contacting once it arrived. You were an active participant and I infer from all of this that your position in the scheme was of a higher order than that of
Mr Mercian.
40 Mr Amadi, I find that you provided an indispensable connection between the overseas organisers and the importation of illegal drugs into Australia, including being the person to whom Mr Merican provided the delivery address.
41 Mr Merican, I find your role, while essential and serious, to be a lesser role than the role played by Mr Amadi. You provided the delivery address and you were there to take delivery of the package. I am satisfied on the balance of probabilities that I should accept your explanation and find that you became involved in the scheme through Mr Amadi and that you were asked by him to provide an address and accept delivery of the package. If the package was for you only, Mr Amadi’s presence at the delivery address on 30 January 2017, immediately as the package was delivered, makes no sense. The presence of Mr Amadi at the delivery address supports your explanation and is consistent with my finding. In accepting your explanation, I am not aggravating the sentence I impose on Mr Amadi.
42 Mr Merican, you were addicted to methamphetamine at the time you agreed to receive the consignment. It was put on the plea that your reward was to be a portion of the imported methamphetamine. I accept that you were to be rewarded by way of being provided with a quantity of the imported methamphetamine. In its way, this is a form of financial reward. It was not suggested, and I do not find, that the methamphetamine would have been of a very small quantity, such as a few grams.
Quantity
43 A marketable quantity is greater than 2 grams but less than 750 grams. Here, the amount of pure methamphetamine imported by Mr Amadi, and attempted to be possessed by Mr Merican, was 234.8 grams. There is no evidence that either of you were aware of the actual quantity of drugs in the package. However, the fact that it was coming in a package and the tracking of the package by both of you, indicates you were aware that the quantity was not insignificant. Beyond that, nothing can be said as to your knowledge of the quantity.
Personal circumstances of Mr Amadi
44
I turn now to the personal circumstances of Mr Amadi. The report of
Mr Cummins, which I have already referred to, was tendered on your behalf. Also tendered was a report by Mr Joubert, psychologist, dated 21 February 2018, letters from the Royal Victorian Eye and Ear Hospital, dated 7 February and 8 August 2018, a letter from psychologist, Vivian Pereira, dated
22 February 2018, a letter from Debbie Walker, family support worker, dated, an eight-line character reference from a Mr Paul Green, and some Monash Health documents confirming that Mr Amadi attended the Emergency Department at the Monash Medical Centre, Clayton, on 2 March 2018, presenting with suicidal ideation but leaving before treatment was completed.
45 Mr Amadi, you were born into a good family in Nigeria. You have two brothers and three sisters. Both your parents are alive, although your mother has been diagnosed with cervical cancer. Your father is a retired mechanical engineer. Your siblings are well educated and have never been in trouble with the law or had any issue with drugs.
46 You attended university in Nigeria and obtained a Bachelor of Arts in History and International Relations. You met an Australian woman whilst working in Malaysia, who sponsored you to come to Australia in approximately 2008. You have subsequently always lived in Melbourne.
47 You separated from your wife in 2012 and you were divorced in 2014. You have no children together. After settling in Melbourne you obtained employment in a quality control role with Assa Abloy, a parent company associated with Lockwood Locks. You worked in a warehouse in Mentone, typically as a forklift driver, and usually took home between $1,100 and $1,300 per week.
48 You met your current wife, a fully qualified medical practitioner, in Nigeria via a family arrangement in April 2011. You married in Nigeria in 2014 and have three children aged five, four and one. Your second child is currently receiving physiotherapy and speech therapy services to assist their development.
49 I am told your wife’s Nigerian medical qualifications were approved by the Australian Medical Council in May 2018, although she is still undergoing exams to enable her to practice medicine in Australia. Your family are not entitled to any government benefits until February or March 2019, as they did not migrate to Australia until February 2017.
50 You disclosed to Mr Cummins for the first time that you had been sexually abused at the age of around 16, and again around the age of 19, by a pastor from the family church. You were also the victim of an armed robbery when you were aged 25 in 2005.
51 Mr Cummins was of the view that you display symptoms of post-traumatic stress disorder, and it is also probable that you have developed a generalised anxiety disorder in response to being separated from your family of origin and from your current wife over a number of years. Your counsel did not rely on any of the limbs of Verdins.
52 Since being charged you have remained employed and on bail until you were placed into custody by me. You have not been charged with any further offences. You presented to Mr Cummins as being mildly to moderately depressed with a mild to moderate overall level of anxiety and agitation. You presented in a similar way to the psychologist, Mr Joubert.
53 You are concerned about what will become of your wife and family, given their current ineligibility to receive Centrelink benefits and the fact that you will be incarcerated for a lengthy period. You have effectively left them without support in Australia. Despite this, you have the ongoing support of your wife and your ex-wife, and your wife is present in court.
54 Your counsel did not submit, correctly in my view, that yours is an exceptional case in relation to family hardship. It is not. However, I do take into account that a period of imprisonment will be more onerous for you given your concerns about what will become of your wife and your family, with you in custody and unable to support them.
55 I have taken into account that you have pleaded guilty at an early opportunity. This demonstrates a willingness by you to facilitate the course of justice and has utilitarian value.
56 In my view, your guilty plea provides some evidence of remorse. Mr Cummins formed the opinion that you are genuinely embarrassed and ashamed regarding your offending behaviour, and Mr Cummins interpreted this as some measure of your current sense of remorse. No doubt you now regret what you did, but in my view, Mr Amadi, your remorse is limited, as I do not find you have accepted or admitted the extent of your offending.
57 You have no prior convictions and I accept that this offending appears to be out of character. However, for offences of this nature, prior good character is of less weight as a mitigating factor than it might be for another offences.
58 The need for specific deterrence is not great, although you persist in the view that you were exploited, duped and taken advantage of by Mr Merican (see Cummins at [47]). In my view, you have still not taken responsibility for what you did. Despite this, I regard your prospects of rehabilitation as reasonably good.
Personal circumstances of Mr Merican
59 Mr Merican, you are 38 years old, having been born in Malaysia. You, too, were born into a good and well-educated family. You had a happy and comfortable childhood, although unfortunately your mother was a chronic gambler and gambled away substantial amounts of money during your early adulthood, causing the family financial hardship, but subsequently your parents separated but they have since reunited. Your parents are in Malaysia and were devastated by this charge, although remain supportive. Your partner also remains supportive.
60 I was provided with a report by Ms Pamela Matthews, dated 26 June 2018, a letter from SECADA dated 12 February this year, and personal character references on your behalf, including from your ex-partner, Ms Astarsis.
61 Mr Merican, you were well-educated. You attended primary school in Malaysia and were subsequently sent to boarding school in the United Kingdom, where you undertook foundation studies in law. You subsequently began to study law and business at Cardiff Law School, but failed your first year. Your parents thought it would be best if you studied in Australia with your brother and sister, and you attended the Monash Caulfield Campus undertaking a degree with a double major in marketing and management. You finished this degree in 2004. You then worked for RACV in insurance for five years and then in real estate, which you were good at and enjoyed.
62 You met your wife, Ms Astarsis, at university in Australia and you were married in 2007. She works as a compliance officer at Deakin University. You have three children aged 11, 6 and 3 and you are still hopeful that you can reconcile with your wife and family.
63 You began to use methamphetamine and cannabis in 2013 and rapidly became addicted to methamphetamine. Your “ice” addiction increased until you were using 5 to 6 grams per day, and you lost your job due to your ice habit. You also separated from your wife due to your drug addiction.
64 You have some prior convictions that I am told reflect your Ice addiction. I was not given any further details. Your prior convictions include drug possession, driving offences, theft, assault and criminal damage. They were all dealt with in the Magistrates’ Court and none resulted in imprisonment.
65 In January 2016 you was convicted and placed on a Community Correction Order for possess methylamphetamine and other charges. In September 2016 you were charged with contravening a Community Correction Order and placed on a further Community Correction Order. On 21 August 2017 you were again charged with contravention and again placed on a further Community Correction Order. You were undergoing a Community Correction Order when you committed this offence.
66 To your credit, you persisted with, and completed, your Community Correction Order despite being charged with this offence and despite being given legal advice that you would receive a term of imprisonment. You are now drug free. You have no psychological or psychiatric problems and are in far better health than when you were arrested in January 2017. You have turned your life around in the last 18 months and now have a far more positive relationship with your children.
67 According to Ms Astarsis, when you were arrested in January 2017 she honestly believed that your ice addiction was so bad that sending you to prison was the only way to get you off drugs. However, she writes that she stands to be corrected because you have in fact turned your life around and are no longer the ice addict that you used to be. She writes that you are a wonderful father and help her with the daily tasks of organising the children to school. You also contribute financially to the household and help with maintaining the home.
68 I take into account that you have pleaded guilty at an early opportunity. This demonstrates a willingness by you to facilitate the course of justice and has utilitarian value. Your plea of guilty is also evidence of remorse in your case. There is also evidence of remorse in the character references provided on your behalf.
69 I accept that your prior convictions were the result of your methamphetamine addiction, and before being claimed by your addiction you were law abiding and productive. Whilst your prior convictions would ordinarily suggest that specific deterrence should have a more substantial role to play, the efforts you have made to rehabilitate yourself whilst on bail, despite knowing that you would be going into custody, are very much to your credit and speak well as to your prospects of rehabilitation.
70 In my view, you have good prospects of rehabilitation, given the work you have done to date.
Sentence
71 General deterrence is of particular importance when sentencing for offences of this nature. Importing into Australia and attempting to possess significant quantities of illegal drugs is very serious offending, and the message must be sent that those who engage in this type of conduct can expect lengthy terms of imprisonment. Importing or obtaining the drugs by post is no less serious than any other form of importation or attempt to possess. The sentences I impose must reflect the gravity of the offending and the need for general deterrence.
72 The quantity involved, whilst not great, was not small. Anything over 2 grams pure and less than 750 grams pure is a marketable quantity, and the quantity here was approximately one third of the upper limit of marketable quantity.
73 I have set out why I find that you, Mr Amadi, played a greater role in this venture than Mr Merican. You were motivated by profit and not driven by a drug addiction. Unlike Mr Merican, you have no prior convictions and you were not in breach of a CCO when you committed the offence. Despite this, I regard your criminality, Mr Amadi, as warranting a higher penalty.
74 Can you both stand, please.
75 In all the circumstances, the sentence of the court is as follows.
76 Mr Amadi, you are convicted and sentenced to five years imprisonment. I fix a non-parole period of two years, 10 months imprisonment.
77 Mr Amadi, you have served 27 days by way of pre-sentence detention and I declare that period be reckoned as time already served under this sentence.
78 Mr Merican, you are convicted and sentenced to four years, six months imprisonment. I fix a non-parole period of two, six months imprisonment.
79 Mr Merican, you too have served 27 days by way of pre-sentence detention and I declare that period be reckoned as time already served under this sentence.
80 Pursuant to s.6AAA, but for your plea of guilty, the sentence I would have imposed on you, Mr Amadi, us seven years with a non-parole period of five years. The sentence I would have imposed on you, Mr Merican, is six years, six months with a non-parole period of four years and three months' imprisonment.
81 There is no ancillary orders sought in this matter; correct?
82 COUNSEL: No, Your Honour.
83 HER HONOUR: Thank you. If you could remove Mr Amadi.
84 MR CAMERON: Just a custody management issue with Mr Amadi, Your Honour.
85 HER HONOUR: Yes.
86 MR CAMERON: It is the issue with the glaucoma of his eyes. If that could just be noted on the court record. I just have family members concerned about that he is not receiving treatment in custody about that.
87 HER HONOUR: All right. So you wish the custody record to reflect what precisely?
88 MR CAMERON: That he is diagnosed with glaucoma and needs to be treated through a medical practitioner for that illness.
89 HER HONOUR: Do you wish for the letters of the Royal Victoria Eye and Ear Hospital to accompany him into custody?
90 MR CAMERON: I do, Your Honour.
91 HER HONOUR: Has that already - or not already been done?
92 MR CAMERON: We have sent that into Port Phillip via the Medical Records Department, but if that could accompany the file, Your Honour.
93 HER HONOUR: I think it can accompany the custody record down to the cells; is that right?
94 ASSOCIATE: (Indistinct words).
95 HER HONOUR: Yes, all right, so the letters - probably more usefully, just the letter of 8 August 2018 can go with Mr Amadi and also it can be noted on the record that Mr Amadi is diagnosed with glaucoma and requires treatment and medical assistance. Will that cover it?
96 MR CAMERON: Yes, I think that should suffice.
97 HER HONOUR: All right. I will have that noted on the record and I will also have sent the letter of 8 August 2018 from the Royal Victorian Eye and Ear Hospital. That is the letter of, I am assuming, Mr Leiliu. Unless there is anything further, if you could remove the Mr Amadi and Mr Merican, please.
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