Udemba v The King
[2025] VSCA 61
•4 April 2025
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0213 |
| COLLINS UDEMBA | Appellant |
| v | |
| THE KING | Respondent |
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| JUDGES: | WALKER and KAYE JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 March 2025 |
| DATE OF JUDGMENT: | 4 April 2025 |
| MEDIUM NEUTRAL CITATION: | [2025] VSCA 61 |
| JUDGMENT APPEALED FROM: | Director of Public Prosecutions (Cth) v Udemba [2023] VCC 1675 (Judge Parrish) |
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CRIMINAL LAW – Appeal – Sentence – Appellant convicted of attempting to possess marketable quantity of border-controlled drug and possession of marketable quantity of border-controlled drug – Sentence for attempting to possess was 7 years’ imprisonment – Appellant’s co-accused on charge of attempting to possess received 2 years and 3 months’ imprisonment – Whether appellant’s sentence infringed parity principle – Differences in circumstances of appellant and co-offender not such to justify disparity – Sentence disparity manifestly excessive – Appeal allowed – Appellant resentenced to total effective sentence of 5 years and 6 months’ imprisonment – 3 years and 4 months’ non-parole period.
Criminal Code Act 1995 (Cth), ss 11.1, 307.6, 307, referred to.
R v Nguyen (2010) 205 A Crim R 106; Lowe v The Queen (1984) 154 CLR 606; Postiglione v The Queen (1997) 189 CLR 295; Rose v The King [2024] VSCA 296; R v Mercieca [2004] VSCA 170; Nguyen v The Queen; Phommalysac v The Queen (2011) 207 A Crim R 380, considered.
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| Counsel | |||
| Appellant: | Mr SN Andrianakis | ||
| Respondent: | Mr MD Stanton SC with Ms O Cameron | ||
Solicitors | |||
| Appellant: | Starnet Legal Pty Ltd | ||
| Respondent: | Mr M de Crespigny, Acting Commonwealth Solicitor for Public Prosecutions | ||
WALKER JA
KAYE JA:
The appellant pleaded guilty to one charge of attempting to possess a marketable quantity of a border-controlled drug (heroin)[1] and one charge of possessing a marketable quantity of a border-controlled drug reasonably suspected of having been unlawfully imported (heroin).[2]
[1]Criminal Code Act 1995 (Cth), ss 11.1(1) and 307.6(1).
[2]Criminal Code Act 1995 (Cth), s 307.9(1).
Following a plea made on his behalf, the appellant was sentenced to a total effective sentence of 8 years’ imprisonment, with a non-parole period of 5 years and 4 months, constituted as follows:
Charge Offence Maximum Sentence Cumulation 1 Attempt to possess a marketable quantity of a border-controlled drug 25 years and/or 5000 penalty units 7 years Base 2 Possess a marketable quantity of a border- controlled drug reasonably suspected of having been unlawfully imported 25 years and/or 5000 penalty units 4 years 1 year TotalEffectiveSentence: 8 years’ imprisonment Non-ParolePeriod: 5 years and 4 months Section6AAAStatement: 10 years and 6 months Otherrelevantorders: Forfeiture order
869 days reckoned as pre-sentence detention
On 8 April 2024, Boyce JA granted the appellant leave to appeal against sentence on the following ground:
1.The sentence on charge 1 and thus the total effective sentence and non- parole period imposed are manifestly excessive when regard is had to the following particulars:
Particulars
a)The sentence on charge 1 is indicative of inadequate weight being given to the matters put in mitigation, namely:
i.the applicant’s plea of guilty and Worboyes considerations.
ii.the applicant’s remorse.
iii.the applicant’s prior good character.
iv.the automatic cancellation of the applicant’s visa in circumstances where he has established a family in Australia being his country of residence since 2013.
v.the hardship to the applicant and to his family as a result of his incarceration and likely deportation.
vi.delay leading to finalisation of the matter.
vii.the principles in Bugmy v R (2013) 249 CLR 571 as they were found to apply to the applicant.
b)The disparity between the sentence imposed on charge 1 and charge 2.
c)Current sentencing trends for the offences of attempting to possess and possessing marketable quantities of a border-controlled drug.
The prosecution case against the appellant, on charge 1, was that he was complicit in the offence charged with a co-accused, Danielle Bell (‘Bell’). At the time of the sentence of the appellant, Bell had not, herself, been sentenced. Subsequently, Bell pleaded guilty to four charges, one of which concerned the offending that is the subject of charge 1 against the appellant, albeit that the period of the offending charged against Bell was confined to two dates (between 16 March 2021 and 17 March 2021). On that charge, Bell was sentenced, in effect, to 2 years and 3 months’ imprisonment. The total effective sentence imposed on her was 2 years and 6 months’ imprisonment, and it was directed that she be released upon entering a recognizance release order after 6 months.
On the hearing of the present application, counsel for the appellant sought to amend ground 1 of the grounds of appeal, to add, as a further particular, the disparity between the sentence imposed on the appellant on charge 1 and that imposed on the co-accused, Bell. The respondent did not oppose the application for leave to amend, but raised the question whether the issue of disparity ought to be a seprate ground of appeal, rather than a particular of ground 1. After the completion of oral argument, it became apparent that it was more appropriate that that proposition be the basis of a separate ground of appeal, to the effect that there is an unjustifiable disparity between the sentence imposed on the appellant on charge 1, when compared with that imposed on his co-accused, Bell. We granted the appellant leave to amend his application for leave to appeal in that manner.
For the reasons that follow, we have concluded that the ground of appeal based on disparity (ground 2) should succeed. It is thus unnecessary to consider ground 1.
Summary of offending of appellant
In March 2021, Victoria Police commenced an investigation into the attempted possession of a marketable quantity of a border-controlled drug, namely, heroin. The investigation focused on the activities of the appellant and his co-accused, Danielle Bell (‘Bell’) attempting to possess a consignment bearing Master Airway Bill 5067554656 imported from Thailand at DHL Port Melbourne and Tullamarine.
Those activities involved the appellant and Bell attempting to possess the consignment by telephoning DHL and attending at DHL facilities on six separate days between 15 March and 26 March 2021. The conduct, in summary, consisted of the following:
•The appellant telephoned DHL on six occasions.
•Bell telephoned DHL on one occasion.
•On one further occasion, the appellant telephoned DHL, but the call taker was unable to understand him. As a consequence, Bell joined in and took over the conversation.
•The appellant, himself, attended DHL on one occasion.
•Bell, herself, attended DHL on three occasions, in circumstances in which the prosecution alleged that the appellant was present in the vicinity.
On 14 March 2021, DHL Transport at Tullamarine received a consignment from Thailand, destined for a residential address in Newell Street, Footscray, Victoria. The goods were described as ‘baby clothes, hot water bottle’, with a House Airway Bill of 5067554656. The consignee details were: Andrew Agha, 28 Newell Street, Footscray, telephone 61406352883.
On 15 March 2021, DHL attempted delivery of the consignment to the Newell Street address. On arrival, the DHL driver observed that, although there was a person waiting outside, the premises themselves were vacant and listed for rent. The driver returned the consignment to Melbourne Gateway Facility for further analysis, due to the suspicious circumstances of the delivery location.
On the following day, Australian Border Force officers examined and X-rayed the consignment. It contained two large flasks and two small flasks. A total quantity of 339.8 grams of heroin was extracted from those containers. On further analysis, the substance comprised 205 to 280 grams of pure heroin.
In the meantime, on 15 March 2021, the appellant, identifying himself as ‘Andrew Agha’, and using a mobile service telephone number 0469310892, registered to Thatch Chi of Braybrook, contacted DHL, enquiring about the consignment. The appellant provided an alternative mobile telephone number to the operator (telephone number 0406352883).
At 3:08 pm on the same date, the appellant, again identifying himself as Andrew Agha, and using the same telephone number, 0469310892, contacted DHL, enquiring about the consignment.
On the following day, 16 March 2021, the appellant, using a different mobile service, 0484586118, registered to Grace A. Bussey (‘Bussey’) of St Albans, contacted DHL, enquiring about the consignment. Subsequent enquiries revealed that Bussey did not give permission for anyone to use the mobile service. A number of documents belonging to Bussey were subsequently seized from Bell’s address, and Bell admitted that she had adopted the identity of Bussey and provided the phone service to the appellant.
Subsequently, on 16 March 2021, at 4:56 pm, Bell attended DHL, Port Melbourne facility, attempting to possess consignment number 656. DHL staff advised Bell that the consignment was not ready for collection, as it had been returned to the sorting facility.
GPRS data on telephone service 0432638087, registered to the appellant, identified that service signalling around Normanby Road, Port Melbourne, between 4:48 pm and 4:57 pm on 16 March 2021. The prosecution alleged that the appellant was thus present with Bell at DHL Port Melbourne when she attended, attempting to take possession of the consignment.
On the same day, at 5:53 pm, Bussey’s telephone contacted DHL Express. At the time of that telephone call, Bussey’s phone service signalled in the vicinity of Airport South. At that time, between 4:52 pm and 5:58 pm, GPRS data recorded the appellant’s telephone signalling in the vicinity of Tullamarine. Subsequently, between 6:23 pm and 6:45 pm, call charge records and GPRS data recorded the appellant’s telephone signalling in the vicinity of Bell’s residential address. The prosecution alleged that Bell and the appellant were together during that period.
On 17 March 2021, at 5:50 am, the appellant, identifying himself as Andrew Agha, used Bussey’s mobile service to again contact DHL, enquiring about the consignment. The appellant provided the operator with the consignment number, and stated: ‘I went to Port Melbourne yesterday to pick it up, they told me Tullamarine, so I went to Tullamarine to pick it up. They’d closed, so rang up to have it delivered’.
On the same day, at approximately 8:50 am, GPRS data recorded the appellant’s mobile phone signalling in the vicinity of Bell’s address in Sunshine North. Call charge records recorded Bell’s telephone signalling in the vicinity of DHL Melbourne Airport at approximately 9:14 am.
At approximately 9:17 am, a CCTV image of the appellant’s motor vehicle was captured outside the DHL Melbourne Airport facility. At approximately 9:18 am, Bell was captured on CCTV attending the facility and attempting to possess the consignment. The prosecution alleged that the appellant drove Bell to the facility in his vehicle.
At approximately 10:53 am, Bell, using Bussey’s telephone, contacted DHL, enquiring about the consignment. At the time, the mobile telephone was signalling in the Footscray area. Bell identified herself as ‘Danielle’. She said she was ringing for her ‘husband, Andrew Agha’. Bell said, ‘Andrew requested the consignment be moved for self-collection at Port Melbourne. We went there and it had been moved to Tullamarine, so we missed it that one’.
Between 10:11 am and 10:47 am, GPRS data recorded the appellant’s telephone signalling in the Footscray area. The prosecution allege that the appellant was in company with Bell when she made that telephone call to DHL.
At 4:46 pm on the same day, Bell attended DHL Port Melbourne facility and attempted to possess the consignment. She produced a fictitious or fraudulent Victorian driver’s licence in the name of ‘Danielle Carolyn Agha’. She was advised that the package was not present at the facility and that it had been returned to the depot for redelivery. Call charge records noted Bell’s telephone signalling in the area of DHL Port Melbourne between 4:47 pm and 4:51 pm.
At 5:12 pm on the same day, the appellant attended DHL Melbourne Airport, attempting to possess the consignment. He did not produce any identification, and he was advised he was unable to collect it. His presence was captured on CCTV footage. Call charge records and GRPS records each recorded the appellant’s telephone number signalling in the vicinity of Tullamarine Airport at that time. Call charge records in respect of Bell’s telephone recorded that telephone signalling in the vicinity of Essendon Airport, Tullamarine, at the relevant time. At 6:34 pm, text messages on the appellant’s phone signalled in the vicinity of the same cell tower in Braybrook at which Bell’s service frequently signalled. The prosecution alleged that Bell and the appellant were together during that period.
On the next day, 18 March 2021, the appellant, identifying himself as ‘Andrew’, used Bussey’s telephone to call DHL enquiring about the consignment. The call was forwarded to another employee of DHL. The appellant again confirmed his name as ‘Andrew’, and said, ‘My brother went there to pick it up but the driver asked him for ID’. He also said, ‘My woman went to DHL to pick it up; they say it in Tullamarine, she went to Tullamarine’. The appellant requested a redirection address for the consignment of 18 Grantham Parade, St Albans. Subsequent enquiries reveal that Bell had previously resided at that address.
On 19 March 2021, at 5:53 am, the appellant, again identifying himself as ‘Andrew’, and using Bussey’s mobile telephone service, contacted DHL and enquired about the consignment. DHL confirmed that the caller had previously requested a change of address.
One week later, on 26 March 2021, at 2:27 pm, the appellant, identifying himself as Andrew Agha, used Bussey’s telephone to contact DHL and enquire about the consignment. The call taker had difficulty understanding the appellant. A female with an Australian accent (Bell) took over the call and spoke with the call taker. The call taker confirmed the redirection address to be 18 Grantham Parade, St Albans. He advised Bell that the consignment had been chosen for inspection by Customs.
Arrest and execution of search warrants
On 27 April 2021, Victoria Police executed search warrants for the appellant at his home address at 175 Cairnlea Drive, Cairnlea and his motor vehicle. He was arrested for attempting to possess a marketable quantity (339.8 grams) of border-controlled drug, namely, heroin, contained within the consignment 5067554656.
A search was conducted of the appellant and his premises and his vehicle. Four flasks were seized from the motor vehicle. They were later deconstructed, with a total of 325.3 grams of heroin. The flasks were contained in a package addressed to Godswill Leon. The appellant was also in possession of a fraudulent licence in the name of Godswill Leon.
Subsequent analysis of the consignment, that was the subject of charge 1, resulted in a quantity of pure heroin between 205 grams and 280 grams. Analysis of the 325 grams, that was the subject of charge 2, resulted in a total quantity of 249 grams of pure heroin.
After his arrest, the appellant was interviewed by police. In the course of the interview, he said that he understood that the consignment, that was the subject of charge 1, contained mobile telephones. He said that he was to be given a telephone as a reward for collecting the consignment from DHL in Tullamarine. He denied attending the address of the consignee in Footscray. He said that he did not know the woman who attended DHL to collect the consignment, and he denied knowing or recognising Danielle Bell when shown photographs of her. He admitted making telephone calls to DHL and to changing the address for delivery. He said that he went to DHL to collect the consignment, but he denied using a fake identity in the name of Andrew Agha. He said that the heroin, contained in the flask, did not belong to him, and he said that he was to receive $1,000 from his friend in Africa for collecting the consignment.
In respect of the package, that was the subject of charge 2, the appellant said that he had travelled to South Australia for the day to deliver furniture and to pick up a package. He said that, while in Adelaide, he picked up the package (addressed to Leonard Godswill) on behalf of a friend in Africa. He was told that it contained clothes and a water bottle, and that someone would collect it from him. He was to be paid $1,000 for the service. He said that, when he was in Adelaide, he removed the flasks from the box in which they were contained, and he left the box in Adelaide. He did not know Leo Godswill. He said that ‘an Aussie guy’ had made the fake identity of Godswill with his photograph after he was provided with the name of the addressee.
The appellant was originally charged with importation of a prohibited substance. A contested committal proceeded on 14 February 2022, and the appellant was committed to trial. Following directions hearings, the matter resolved on 30 May 2022. The appellant was formally arraigned on 27 July 2022, and he pleaded guilty on that date. The plea hearing took place on 15 May and 27 June 2023, and the appellant was sentenced on 13 September 2023.
The plea
The appellant was born in Nigeria in November 1985. His father had more than one wife, and, in total, the appellant had 22 siblings, some of whom were step-siblings. As a result of the family’s difficult financial circumstances, the appellant was required to leave school in Grade 6, in order that he undergo on-the-job training from a friend of his father, who had a mechanical workshop. From an early age, the appellant was required to develop technical skills in mechanical work, and he then commenced work, earning money, which was used by his father to support his large family. The appellant’s childhood was difficult. He witnessed violence, and regularly saw males carrying weapons and inflicting violence on each other.
In 2013, the appellant fled Nigeria and came to Australia on a tourist visa, in order to avoid being forced to work for government political parties. After arriving in Australia, the appellant met his wife and commenced a de facto relationship with her. His wife is an Australian citizen, and they have four young children together. He has no previous convictions.
While living in Australia, the appellant worked as a forklift driver for two years in a factory, and subsequently as a courier for eight months. At one point, he conducted his own clothing shop in the Footscray area. He ultimately had to liquidate that business, and he was left with significant financial debts.
At about the time the appellant’s business went into liquidation, his mother passed away. The appellant had been close to his mother, and he experienced some difficulty coping with her passing. At that time, the appellant commenced using methamphetamine, and he was doing so until his arrest.
The appellant was held in custody following his arrest. He was remanded in Marngoneet Prison, and was employed there in horticulture and cleaning. He completed courses in prison, and had provided clean urine samples.
On the plea, it was submitted that the appellant’s offending was not particularly sophisticated, and that he was neither the mastermind, nor an organiser, of the operation by which the heroin was imported into Australia. Rather, it was submitted, his role was confined to collecting the consignment of heroin. Counsel noted that the appellant pleaded guilty on the basis that, while he was aware that the consignment contained an illicit substance, he was reckless as to the nature of the substance.
In mitigation, counsel for the appellant relied on a number of factors. First, counsel relied on the appellant’s difficult and disturbed upbringing, and contended that the principles stated by the High Court in Bugmy v The Queen[3] applied in mitigation of sentence. Further, the appellant was not an Australian citizen and he would be subject to deportation at the completion of his prison sentence. It was submitted that the prospect of being returned to Nigeria would weigh heavily on the appellant. In addition, since his remand, the appellant’s wife had borne the burden of maintaining their young family. If the appellant was deported, that would have a significant impact on his family and his children. In addition, the appellant had pleaded guilty at the earliest opportunity, and his plea was of significant utilitarian value. Further, the appellant’s plea was entered at a point at which the justice system was still grappling with the backlog that accumulated during the COVID-19 pandemic and, accordingly, was entitled to consideration in accordance with the principle stated in Worboyes v The Queen.[4]
[3](2013) 249 CLR 571; [2013] HCA 37 (‘Bugmy’).
[4][2021] VSCA 169, [39] (Priest, Kaye and T Forrest JJA) (‘Worboyes’).
Counsel also noted that the appellant had experienced some hardship in custody during the pandemic, and that he had been subject to 14 days’ isolation when remanded. Counsel also relied on the delay in the disposition of the plea. It was submitted that the delay could not be attributed to the appellant, and he had pleaded guilty at the earliest opportunity.
The appellant was examined by Edwin Kleynhans, a psychologist, for the purpose of the plea. Mr Kleynhans diagnosed the appellant to have a persistent depressive disorder with anxious distress. That condition had been the product of the appellant’s upbringing. As a result, the appellant had resorted to substance abuse, and the development, by him, of a substance abuse disorder. On the plea, it was submitted that, based on Mr Kleynhans’s report, as a result of the appellant’s anxiety condition, a sentence of imprisonment would weigh more heavily on him, and there was a risk that a sentence of imprisonment would have a significant adverse effect on his mental health. Accordingly, it was submitted, the fifth and sixth principles identified by this Court in R v Verdins[5] applied.
[5](2007) 16 VR 269, 276 [32]; [2007] VSCA 102 (‘Verdins’).
Finally, counsel for the appellant relied on two character references, provided by an acquaintance of the appellant, which attested to his good character. Counsel noted that each of the two references, and Mr Kleynhans, had noted that the appellant had expressed remorse for his offending.
On the plea, counsel for the prosecution noted that the amount of drugs involved, in each of the two charges, was more than 100 times a marketable quantity of the substance. It was accepted that there was no evidence to contradict the appellant’s statement, in the course of his interview, that his reward for his role in the two offences was $1,000. However, it was submitted that the judge should not be satisfied that it was limited to that amount.
The prosecution accepted that the appellant’s plea, on each of the two charges, was entered at an early stage after the contested committal proceeding, in which the appellant had been facing a charge of importation. It was further accepted that there had been a significant delay in the prosecution of the charges through no fault of the appellant.
Reasons for sentence
In sentencing the appellant, the judge commenced by noting that the amount of heroin involved in each charge was significant, in each case amounting to over 100 times a marketable quantity of heroin, and constituting more than one eighth of a commercial quantity of that substance.[6]
[6]Director of Public Prosecutions (Cth) v Udemba [2023] VCC 1675 (‘Reasons’), [41].
In respect of charge 1, the judge accepted that the appellant was not the top person in the hierarchy of the drug importation, but he was ‘clearly in the chain and facilitated the entry of [the] drugs into Australia’.[7] The judge was satisfied beyond reasonable doubt that the appellant knew that the consignment consisted of illicit drugs, albeit not necessarily that the drug was heroin.[8]
[7]Ibid [45].
[8]Ibid [46].
In relation to charge 2, in view of the subterfuge that the package was addressed to ‘Godswill Leon’, and that the appellant used a fake ID as such, it was unlikely that the appellant understood that the package only contained clothes and a water bottle.[9]
[9]Ibid [49].
The judge noted the appellant has no previous convictions, and he was otherwise of good character. The judge acknowledged that, consistent with the decision of the New South Wales Court of Appeal in R v Nguyen,[10] general deterrence must be given principal weight in sentencing cases such as the present. The judge considered that the offending in respect of charge 2 was less serious than that in charge 1, as the appellant was only a courier for the drugs from Adelaide to Melbourne, and there was no evidence that the appellant was involved in the importation of the drug, or otherwise in the distribution of the drug.[11]
[10](2010) 205 A Crim R 106; [2010] NSWCCA 238 (‘Nguyen’).
[11]Reasons, [54].
The judge then outlined the following factors that he took into account in mitigation of sentence:
(a)The appellant’s plea of guilty, which was at the earliest opportunity. The judge accepted the plea had significant utilitarian value, and that it should also attract palpable amelioration of sentence pursuant to the principles stated in Worboyes. In addition, the plea demonstrated a willingness to accept full responsibility for his offending, and to facilitate the course of justice.[12]
(b)The appellant had demonstrated some remorse for the consequences of distributing an illicit drug, such as heroin, in the community.[13]
(c)The appellant had no previous criminal history, and that he was otherwise of good character.[14]
(d)The appellant had been on remand for more than two years, during which he had experienced frequent lockdowns and he had limited access to visitors and programs.[15]
(e)The appellant, being sentenced to a period of imprisonment in excess of 12 months, faced the prospect of being deported as a result of the provisions of the Migration Act 1958. Such a prospect would render the appellant’s term of imprisonment more onerous and, in addition, if the deportation took place, it would constitute an additional punishment. The judge accepted that such a situation would weigh heavily on the appellant, as he had migrated to Australia for a better future, and he had managed to obtain employment and start a family in this country.[16]
(f)The appellant would suffer hardship, knowing that his wife and young family had no breadwinner and would be dependent on social service benefits. In addition, the judge took into account ‘third party hardship’ suffered by the appellant’s family for those reasons.[17]
(g)There had been a delay in the proceeding, during which the appellant had been on remand. That delay was ‘unduly long’, and the appellant had had the matter hanging over his head during it.[18]
(h)The judge was not satisfied that the appellant had made fulsome admissions to police, and considered that the appellant had only made partial admissions, to which the judge attributed limited weight as a mitigating factor.[19]
(i)The judge accepted that the appellant’s family background in Nigeria could be described as dysfunctional. However, the relationship between those circumstances and the appellant’s offending was tenuous. Nevertheless, the judge allowed ‘some weight’ to that consideration as a mitigating factor in application of the principles stated by the High Court in Bugmy.[20]
[12]Ibid [56(a)].
[13]Ibid [56(b)].
[14]Ibid [56(c)].
[15]Ibid [56(d)].
[16]Ibid [56(e)].
[17]Ibid [56(f)].
[18]Ibid [56(g)].
[19]Ibid [56(h)].
[20]Ibid [56(i)].
In respect of the appellant’s counsel’s submission, that the fifth and sixth principles stated in Verdins should apply, the judge noted that Mr Kleynhans, in his report, did not express the opinion that a sentence would weigh more heavily on the appellant. Further, there was no evidence that the appellant’s incarceration had impacted his psychological condition. The judge accepted that prisoners suffering from a mental impairment, such as the appellant, may find a term of imprisonment weighs more heavily on them than a person in normal health. In those circumstances, his Honour attributed ‘some very limited weight’ to the Verdins principles, relied on by the appellant.[21]
[21]Ibid [57].
The judge considered that while the appellant’s moral culpability was reduced ‘to some extent’ by the Bugmy considerations, nevertheless, he was well aware of what his role was, and he persisted in obtaining the consignment of heroin over a number of days. He was also aware that the material, that he brought from Adelaide to Melbourne, was illicit drugs.[22]
[22]Ibid [58].
The judge considered that the appellant’s prospects of rehabilitation were reasonable.[23] His Honour noted that, in accordance with the authorities, general deterrence is the most important consideration in sentencing in cases such as the present case.[24]
[23]Ibid [60].
[24]Ibid [59].
The reasons for sentence of Danielle Bell
Bell pleaded guilty to four charges. The first charge was identical to charge 1 against the appellant, save that, in the case of Bell, the offending was confined to her conduct between 16 March 2021 and 17 March 2021. Further, Bell was sentenced on the basis that she was reckless as to the consignment containing a border-controlled drug.
The circumstances in respect of which Bell was sentenced, as summarised in the judge’s reasons for sentence in relation to her,[25] may be summarised as follows:
•On 16 March 2021, at approximately 4:56 pm, Bell attended the DHL office at Port Melbourne in relation to the consignment. DHL staff advised her that the consignment was not ready for collection, as it had been returned to the sorting facility.
•At approximately 9:18 am on 17 March 2021, Bell attended DHL at Melbourne Airport, having been driven there by Udemba in his motor vehicle.
•At approximately 10:53 am, Bell, using the Bussey mobile telephone, contacted DHL. She stated that she was ringing up for her ‘husband’, namely, ‘Andrew Agha’, and confirmed that there was a request for the consignment to be moved to DHL Port Melbourne for self-collection.
•At approximately 4:46 pm on 17 March 2021, Bell attended the DHL Port Melbourne facility in relation to the consignment. She produced a Victorian learner permit in the name of ‘Danielle Carolyn Agha’. Bell was informed that the package was not present at the facility, and had been returned to the depot for redelivery.
•At approximately 5:04 pm, the appellant attended DHL Melbourne Airport in relation to the consignment. Mobile phone records suggest that Bell and the appellant were together at that time.
[25]DPP (Cth) v Bell [2024] VCC 246 (‘Bell reasons’).
Bell was arrested on 27 April 2021, and released on bail with various conditions on 30 April 2021. She remained on bail until the completion of her plea and sentence.
The charges against Bell resolved after a contested committal hearing in February 2022. At the time of the committal, there were some 23 charges against Bell and, ultimately, as stated, she pleaded guilty to four charges.
At the time of sentence, Bell was 46 years of age. She had previously come before the courts on five separate occasions in respect of charges that included possession of methamphetamine, receiving and retention of stolen goods, and dealing with property suspected of being the proceeds of crime. On each occasion, the offences were dealt with by way of a non-custodial disposition.
Bell’s background and upbringing were particularly relevant circumstances on her plea. Her parents separated before she was born, and Bell’s mother remarried. Between the ages of nine years and 12 years, she was subjected to repeated acts of sexual abuse by the stepfather. Ultimately, the stepfather was prosecuted and placed on a recognizance order for five years, but was allowed to return to the matrimonial home. In addition to the sexual abuse, Bell was repeatedly subjected to degrading and abusive behaviour from the age of nine years until she left home at the age of 16 years. She was physically and psychologically abused during that time.
After leaving school, Bell obtained regular employment for a period of almost 20 years. During that period, she was engaged in some two personal relationships, in each of which she was subjected to significant physical violence and psychological abuse, and in which she resorted to substance abuse. In mid-2023, she presented to the Footscray Hospital Emergency Department and the Sunshine Hospital Emergency Department after two serious episodes of physical assaults.
On Bell’s plea, Bell relied on a report of Associate Professor Danny Sullivan, a psychiatrist. Dr Sullivan diagnosed Bell to suffer a complex post-traumatic stress disorder and a dissociative identity disorder. In addition, Bell had a severe substance use disorder, involving methamphetamine and nicotine. He expressed the view that there was no clear causal association between Bell’s mental disorder and her engagement in the offending. Dr Sullivan noted that Bell suffered an extraordinarily high level of anxiety, and he considered that, in those circumstances, a period of incarceration would weigh more heavily on her.
On her plea, reliance was also placed on a report of Dr Paul Grech, a clinical psychologist. Dr Grech noted that Bell had had significant difficulty maintaining any degree of control over her life, which had been chaotic, and marked by severe complex PTSD, dissociative identity disorder, and major depressive episodes. He expressed the view that Bell would find the experience of being incarcerated far more onerous than most prisoners.
In addition, on Bell’s plea, material from the Court Integrated Services Program (‘CISP’) was tendered. The report concluded that Bell had continued to display a genuine commitment to the CISP program and related treatment supports, that she had participated in all scheduled CISP phone appointments, and that she had embraced the therapeutic process available to her.
In sentencing Bell, the judge noted that, whereas it was alleged that the appellant had attempted to possess the consignment by telephoning DHL and attending DHL facilities on six separate days between 15 March and 26 March 2021, in relation to charge 1 against Bell, it had been accepted by the prosecution that she fell only to be sentenced for the actions in attempting to collect the consignment on 16 March and 17 March 2021, and on the basis that she was reckless as to the consignment containing a border-controlled drug.[26]
[26]Bell reasons, [41].
The judge accepted, on the evidence, that Bell had had a ‘frightful childhood’, which involved being sexually abused by her stepfather over a period of three years and that, in the ensuing years, before she left home, she had been repeatedly subjected to degrading and abusive behaviour, physical abuse and threats to kill.[27] The judge considered that Bell’s moral culpability in relation to charge 1 was reduced, considering: the limited role that she played in attempting to possess the imported drug; her lack of knowledge as to what was the subject of the importation; and the limited time in which she was involved. Further, the judge made a ‘further limited allowance’ based on the principles in Bugmy,[28] in view of her ‘frightful childhood’.[29] Based on the reports of Associate Professor Sullivan and Dr Grech, the judge considered that the fifth principle, as stated by this Court in Verdins,[30] was enlivened and, in addition, based on the evidence of Dr Grech, the judge gave ‘limited weight’ to the sixth principle of Verdins.[31]
[27]Ibid [56]–[58].
[28](2013) 249 CLR 571; [2013] HCA 37.
[29]Bell reasons, [63].
[30](2007) 16 VR 269; [2007] VSCA 102.
[31]Bell reasons, [22(c)].
The judge considered that Bell’s compliance with the CISP program was ‘exemplary’, and that it demonstrated insight by her into her psychological and drug problems.[32] The judge also gave some weight to the fact that there had been some delay in the disposition of Bell’s case.[33]
[32]Ibid [21(e)].
[33]Ibid [22].
Finally, the judge considered that there could be ‘no issue’ concerning parity between the sentence to be imposed on Bell and the sentence imposed on the appellant ‘whose offending was more serious and more extensive’.[34]
[34]Ibid [26].
Ground 2 — submissions
In support of ground 2, counsel submitted that, notwithstanding the differences between the appellant’s participation in the offending and Bell’s participation, the disparity between the sentences imposed on them was such as to give rise to a justifiable sense of grievance.
In that respect, counsel submitted that it was relevant that Bell had organised false identifications for both herself and the appellant, that she attended the DHL office on three occasions, and that she also telephoned DHL on one occasion. Thus, it was submitted that, on the dates on which Bell was engaged in the offending, she played an important role in it. Counsel further noted that Bell had had a number of previous convictions, including convictions for offences involving drugs.
On the other hand, the appellant had had no previous convictions. During the period in which he had been on remand, the circumstances in prison were quite difficult, due to the restrictions imposed as a result of the COVID-19 pandemic. During the time of his incarceration, the appellant’s wife had given birth to an infant, and the appellant had had no opportunity to spend time with his new child outside of the prison environment. Counsel also noted that the judge had accepted that the appellant’s moral culpability had been reduced to some extent as a result of his difficult family background in Nigeria, and thus, the appellant was entitled to mitigation of his sentence in accordance with the principles stated by the High Court in Bugmy.
In response, counsel for the respondent submitted that the difference in the sentences imposed on the appellant and Bell respectively was properly justified. In particular, Bell’s offending was confined to two days, whereas the appellant had offended over a period of 11 days. During the time of her offending, Bell had engaged in significantly less activity in relation to the intended importation than the appellant. Further, counsel noted that the appellant pleaded guilty on the basis that he knew that the consignment contained a border-controlled drug. On the other hand, Bell pleaded guilty on the basis that she was reckless as to that circumstance.
Counsel for the respondent also noted that Bell had been subjected to a particularly traumatic background in her early years, so that the principles in Bugmy and in Verdins had more significant application to her than to the appellant. Further, Bell had been fully compliant with the CISP program, so that her prospects of rehabilitation were considered by the sentencing judge to be reasonable.
In those circumstances, it was submitted that the difference in the sentences imposed on the appellant on charge 1, as compared with the sentence imposed on Bell, was not such as would give rise to a justifiable sense of grievance.
Ground 2 — analysis and conclusion
The principle of parity in sentencing has been well-established since the decisions of the High Court in Lowe v The Queen[35] and Postiglione v The Queen.[36] The principle is based on the proposition that equal justice requires that, all things being equal, like co-offenders should be treated equally, subject to the qualification that relevant differences between the culpability of the offenders, and matters personal to them, be properly accommodated in the exercise of the sentencing discretion.
[35](1984) 154 CLR 606, 610 (Gibbs CJ), 613–4 (Mason J), 623–4 (Dawson J); [1984] HCA 46.
[36](1997) 189 CLR 295, 301–2 (Dawson and Gaudron JJ), 309 (McHugh J), 323 (Gummow J), 338 (Kirby J); [1997] HCA 26.
Sentencing error on the basis of disparity may occur where, taking into account the differences between the roles of the offenders in the offence, their respective levels of culpability, and their personal circumstances, there nevertheless is such a marked discrepancy between the sentences passed on co-offenders as to produce a justifiable sense of grievance in the objective bystander. The imprecise nature of sentencing in each case, and the discretionary nature of sentencing, involving the balancing and synthesis of relevant considerations, is such that it may only be concluded that sentencing error has occurred where the appellate court considers that it was not open to the sentencing judge to differentiate in the sentences of the co-offenders in the way in which the judge did.[37]
[37]See, eg, Anthony v The Queen [2016] VSCA 22, [12] (Redlich and Beach JJA); Hilder v The Queen [2011] VSCA 192, [38]–[39] (Maxwell ACJ); Roujnikov v The Queen [2015] VSCA 97, [25] (Weinberg and Kyrou JJA); Ryan v The Queen [2016] VSCA 255, [42] (Weinberg, Whelan and Priest JJA).
In the recent decision of this Court in Rose v The King,[38] Walker and T Forrest JJA outlined those principles in the following terms:
The parity principle is founded on the principle of equal justice. Those who commit the same offence should be treated equally, save where differences in the role in the offence, or differences in age, background, prior criminal history and general character justify the imposition of different sentences.
Some disparity between sentences will be insufficient to justify intervention by an appellate court. The disparity must be manifestly excessive. The appellate court will intervene in this case if the disparity engenders a justifiable sense of grievance in the person sentenced more heavily, or if the disparity gives the appearance that justice has not been done. A justifiable sense of grievance is to be assessed objectively. The application of the parity principle will not concern itself with the subjective feelings of the disparity of the complainant. Ultimately, the Court is concerned with the question of whether the disparity between sentences is unjustifiable.[39]
[38][2024] VSCA 296.
[39]Ibid [29]–[30] (Walker and T Forrest JJA).
In sentencing the appellant, it was relevant for the judge to take into account, as his Honour did, the conduct of Bell, in which the appellant was complicit. Similarly, in sentencing Bell, it was appropriate for the judge to take into account, as the judge also did, her complicity in the conduct of the appellant during the period charged against her, namely, 16 March and 17 March 2021. In view of the shorter time period charged against Bell, in considering the issue of disparity, it is necessary to disregard conduct of Bell after 17 March 2021, in which the appellant would otherwise have been complicit. In other words, any act of complicity by the appellant in Bell’s conduct after 17 March should be properly disregarded.
Nevertheless, making allowance for that circumstance, it is quite apparent that the appellant’s involvement in the offending, that was the subject of charge 1 against him, was materially more substantial than Bell’s involvement in offending that was the subject of the charge against her, as confined to the two days in question. As we have earlier noted, the appellant telephoned DHL on six occasions, and he attended DHL on one occasion. Bell telephone DHL on one occasion, and she attended DHL on three occasions. Each of those attendances, by her, were in the period of 16 March and 17 March 2021, in circumstances in which the prosecution alleged that the appellant was present with her in the vicinity of her attendance.
That difference in the degree of involvement in the offending, by the appellant and Bell respectively, justified, and, indeed, required, the imposition of a more substantial sentence on the appellant than that which was imposed on Bell. Nevertheless, Bell did perform an important role in the offending, particularly at the outset of it, in which, in effect, she worked in tandem with the appellant in contacting and attending DHL facilities for the purposes of taking into possession the marketable quantity of the border-controlled drug, heroin, that had been imported into Australia. In the circumstances, it could not be maintained that the respective differences in the degree of participation in the offending by the appellant and Bell could, of themselves, justify the imposition of a sentence on the appellant that was more than three times the length of the sentence of imprisonment imposed on Bell.
The critical question, then, is whether the mitigating circumstances, relied on by Bell, were of such moment, in comparison with the mitigating circumstances relied on by the appellant, as to account for the differential in the sentences imposed on the two offenders.
Certainly, Bell had available to her mitigating factors, which were of significant weight. The severe sexual, physical and psychological abuse to which she had been subjected during her early years provided a compelling explanation for her resort to the abuse of prohibited substances, including methamphetamine. Those circumstances were a relevant, and important, background to her offending, both on previous occasions, and in the present case. They provided an appropriate foundation for the application of the principles, stated by the High Court in Bugmy, so that the moral culpability of Bell could not be equated with the culpability of an offender who had had the benefit of a stable and constructive upbringing.[40]
[40]DPP v Heyfron [2019] VSCA 130, [57] (Priest, Kaye and T. Forrest JJA); Bergman (a pseudonym) v The Queen [2021] VSCA 148, [86]–[90] (Maxwell P and Kaye JA).
Further, by reason of her abusive and dysfunctional childhood, Bell suffered from significant psychological disorders, including severe complex PTSD and major depressive episodes. The judge accepted that, by reason of her psychological disorders, a term of imprisonment would weigh more heavily on Bell, and, in addition, there was a risk that imprisonment would have a significant adverse effect on her mental health. Accordingly, the judge accepted that the fifth and sixth propositions, outlined by this Court in Verdins, applied in mitigation of sentence. Finally, the judge also gave significant weight to the constructive and positive steps, which Bell had taken to rehabilitate, by her compliance in the CISP program.
Those factors, taken together, were certainly significant mitigating considerations in the determination of Bell’s sentence. On the other hand, the appellant, himself, did have available a number of important mitigating factors on which he relied, and which were accepted by the judge.
At the risk of repetition, the appellant had pleaded guilty at the earliest opportunity. He had done so at a time where his plea had additional utility given the backlog of criminal cases caused by the COVID-19 pandemic, thus entitling him to an ‘actual and palpable amelioration of sentence’.[41] There was some evidence of remorse. Importantly, he had no previous convictions. During the time in which the appellant had been held on remand, the conditions of custody had been particularly difficult, due to the restrictions imposed as a result of the COVID-19 pandemic. During his time on remand, and for the duration of his sentence, the appellant had been, and would be, removed from his young family. The imprisonment of the appellant had imposed, and would continue to impose, substantial hardship on his family. Finally, the appellant faced deportation from Australia on completion of his sentence. In addition, the judge did give some, albeit limited, weight in mitigation to the appellant’s difficult childhood.
[41]Worboyes [2021] VSCA 169, [35] (Priest, Kaye and T Forrest JJA).
Thus, while we accept that the weight of the mitigating circumstances available to Bell was more substantial than the mitigating circumstances relied on by the appellant and accepted by the judge, the differential was not so substantial as to provide an appropriate explanation for the disparity of sentences imposed on Bell and the appellant respectively for their involvement in the offending, in which they were both involved together.
In essence, then, the degree of involvement by the appellant in the offending was more substantial than that of Bell. Nevertheless, Bell’s involvement was of some importance and substance. Bell did have available mitigating circumstances, which were of more significant weight than the appellant. Taken together, those considerations certainly justified the imposition, on the appellant, of a sentence, which was materially more substantial than that imposed on Bell. However, we do not consider that it could be properly maintained that the differences between the circumstances of Bell and the appellant, and the mitigating circumstances available to them, were of such weight that could properly, or reasonably, justify the imposition of a sentence of 7 years’ imprisonment on the appellant, for his involvement in the offending, as compared to the imposition on Bell of a sentence of 2 years and 3 months’ imprisonment, with her release after serving 6 months’ imprisonment upon entering a recognizance release order.
In R v Mercieca,[42] Winneke P (with whom Charles JA agreed) summarised the application of the relevant principles as follows:
… before an appellate court can intervene on the basis of disparity, or lack of it, the authorities recognise that that disparity, or lack of it, must be “marked” or “manifest” and such as to produce a legitimate and justifiable sense of grievance in the objective observer.[43]
[42][2004] VSCA 170.
[43]Ibid [17] (Winneke P).
In the present case, for the reasons discussed, the discrepancy in the sentences imposed on the appellant and Bell respectively, for their involvement in the offending that was the subject of charge 1 against the appellant, was plainly so marked or manifest as would produce a legitimate and justifiable sense of grievance in the mind of an objective bystander. For those reasons, ground 2 must succeed.
In those circumstances, it is necessary to re-sentence the appellant on charge 1. In doing so, we take into account, and give full weight to, the seriousness of the offending, engaged in by the appellant. In particular, in cases such as this, the principle of general deterrence is of particular significance.[44] On the other hand, we give appropriate weight to the mitigating factors, relied on by the appellant, which we have discussed. It is also important to take into account the principle of parity to ensure that the sentences imposed on the appellant bear the appropriate proportionality to that imposed on Bell, taking into account the differences in both the levels of offending and mitigating circumstances applicable to each of them. In addition, we give consideration to the comparable sentences that were drawn to the attention of the sentencing judge by the prosecution in this case.[45]
[44]Nguyen (2010) 205 A Crim R 106, 126–7 [72] (Johnson J); Nguyen v The Queen; Phommalysac v The Queen (2011) 207 A Crim R 380, 389–90 [34] (Maxwell P); [2011] VSCA 32.
[45]El-Ghourani [2009] NSWCCA 140; Patel v The Queen [2022] NSWCCA 93; Adegoke v The Queen [2013] NSWCCA 193; Omorogbe v The Queen [2013] NSWCCA 201; Onuorah v The Queen [2009] NSWCCA 238.
Taking those matters into account, we set aside the sentence imposed on charge 1. In lieu, the appellant is re-sentenced, on charge 1, to a sentence of 4 years and 6 months’ imprisonment. The sentence imposed on charge 2 (possession of a marketable quantity of a border-controlled drug reasonably suspected of having been unlawfully imported) of 4 years’ imprisonment is confirmed. We direct that 12 months of the sentence on charge 2 be served cumulatively on the sentence imposed on charge 1.
Accordingly, the appellant is re-sentenced to a total effective sentence of 5 years and 6 months’ imprisonment. We direct that the appellant serve 3 years and 4 months’ imprisonment before he is eligible for parole.
For the purposes of s 6AAA of the Sentencing Act, is it declared that, in the absence of the appellant’s pleas of guilty, he would have been sentenced to a total effective sentence of 8 years and 6 months’ imprisonment.
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