Udunna v R (Cth)

[2020] NSWCCA 304

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Udunna v R (Cth) [2020] NSWCCA 304

Hearing dates:

28 October 2020

Decision date:

25 November 2020

Before:

Hoeben CJ at CL at [1];
Harrison J at [38];
Ierace J at [39]

Decision:

(1)   An extension of time until 28 October 2020 is granted for the applicant to seek leave to appeal against sentence.

(2)   Leave to appeal against sentence is granted.

(3)   The appeal against sentence is dismissed.

Catchwords:

CRIMINAL LAW – sentence appeal – attempt to possess an unlawful imported border controlled drug (methamphetamine) – applicant convicted after trial – 142kg of methamphetamine – sentence of 10 years with a non-parole period of 6 years and 6 months – whether sentence manifestly excessive – whether error in not properly taking into account the prior good character of the applicant – leave to appeal granted but the appeal dismissed.

Cases Cited:

Okafor v R [2007] NSWCCA 147

Onuorah v R [2009] NSWCCA 238; 234 FLR 377

R v Barrientos [1999] NSWCCA 1

R v Lee [2007] NSWCCA 234

R v Leroy (1984) 2 NSWLR 441

R v Nguyen; R v Pham [2010] NSWCCA 238

Regina v Paliwala (2005) 153 A Crim R 451; [2005] NSWCCA 221

Stines v R [2019] NSWCCA 115

The Queen (Cth) v Pham (2015) 256 CLR 550; [2015] HCA 39

Vandeventer v R [2013] NSWCCA 33

Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 65

Category:

Principal judgment

Parties:

Joseph Udunna – Applicant
Regina (Cth) – Respondent

Representation:

Counsel:
S Kluss – Applicant
A Williams – Respondent

Solicitors:
Ross Hill & Associate Solicitors – Applicant
Commonwealth Director of Public Prosecutions – Respondent

File Number(s):

2016/171325

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Date of Decision:

7 December 2018

Before:

North DCJ

File Number(s):

2016/171325

JUDGMENT

1. HOEBEN CJ at CL:

Offences and sentence

The applicant seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) against the sentence imposed upon him by his Honour Judge North on 7 December 2018 in the District Court at Sydney.

2. The application for leave to appeal is out of time and the applicant seeks an extension of time within which to bring the application. The respondent does not oppose an extension of time being granted. In those circumstances, the Court proposes to grant leave to extend the time for bringing the appeal.

3. The applicant was sentenced after trial for aiding and abetting an offence of attempting to possess an unlawfully imported border controlled drug, namely methamphetamine contrary to s 307.5(1) of the Criminal Code (Cth) (with ss 11.1(1) and 11.1(2)). He was sentenced to a term of imprisonment of 10 years with a non-parole period of 6 years and 6 months, commencing 21 February 2018 and expiring 20 August 2024 at which time, subject to s 19AL of the Crimes Act 1914 (Cth), the applicant can be released on parole.

4. The applicable maximum sentence for the offence is life imprisonment, and/or a fine of $1,350,000.

FACTUAL BACKGROUND

5. The applicant was sentenced after a trial of 40 days conducted between 6 March 2018 and 14 May 2018, on which day a verdict of guilty was returned. The applicant had been tried with three other men, Prince Ibeh, Donatus Ozoani and Onyedika Anaeto. The applicant faced the same charge (with different particulars as to date) as Mr Anaeto, namely aiding and abetting the attempt on the part of Mr Ozoani to possess the imported border controlled drug. Messrs Ibeh and Ozoani were charged with offences relating to the importation itself and the subsequent attempt to possess the border controlled drug.

6. The sentencing judge expressly identified the facts which he found (Sentence judgment pp 2-15). The applicant does not submit that there was any error in fact finding.

The facts can be summarised as follows, focusing primarily on the conduct of the applicant:

1. on 17 March 2016 two sea cargo containers arrived in Sydney from Mexico;

2. in those containers was 142kg of methamphetamine (114kg pure);

3. that substance was secreted within electrical generators;

4. from 12 April 2016, the applicant was in telephone contact with Mr Ozoani, one of the importers. From 16 April 2016 the applicant was in telephone contact with Mr Anaeto;

5. on 15 April 2016 officials detected the secreted illegal import. They subsequently substituted the drugs with an inert substance;

6. on 15 April 2016 the applicant was involved in arranging the lease of a property in Rossmore to which the containers were to be delivered;

7. once the containers were released by the stevedores, they were taken on 6 May 2016 to the Rossmore address. The generators were unloaded from the containers on 9 May 2016. On that date, the applicant received a telephone call from Mr Ozoani telling him that he had “finished doing that thing” referring to the subsequent strategy for accessing the drugs;

8. from that point and until 2 June 2016, the applicant engaged in numerous meetings and telephone calls with the other offenders. He was referred to by a nickname, “Ofia”. He used mobile telephone numbers subscribed in false names. He engaged in cryptic conversations related to the imported drugs and their extraction. He assisted other members of the importation scheme with travel;

9. at least some of the conversations were found (Sentence judgment p9) to have been about getting ready to work on the generators;

10. on 3 June 2016, Mr Ibeh and Mr Ozoani attended the Rossmore property and worked at accessing the items secreted in the generators. The applicant was not present; and

11. the applicant was arrested on that day.

The Crown Case on Sentence

7. The Crown relied on a bundle of material, which was marked as Exhibit A. Much of that material related only to the co-offenders. Insofar as the material related to the applicant, there was the following:

1. Crown Cover Sheet;

2. Criminal History Report;

3. Criminal History Record; and

8. Also before the Court was a Sentence Assistance Report, dated 7 September 2018, the Crown submissions and a Comparative Sentencing Schedule.

The Defence Case on Sentence

9. The applicant relied on a bundle of material on sentence, which was marked Exhibit U. That material included:

1. A report of Mark Milic (psychologist) dated 11 September 2018;

2. four references from persons prominent in the Nigerian community in Sydney, including the President of the Nigerian Association of NSW and a bishop.

10. No oral evidence was led on behalf of the applicant on sentence.

11. The applicant relied upon written and oral submissions.

Grounds of appeal

12. The applicant relies upon the following grounds of appeal:

Ground 1 – The sentence imposed was manifestly excessive

Ground 2 – His Honour erred in not properly taking into account the prior good character of the applicant

13. No complaint of disparity of sentence is made.

Ground 1 – The sentence imposed was manifestly excessive

14. The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from other sentences that have been imposed in other cases.

15. That this Court may have exercised the sentencing discretion differently is not the test. Rather, the applicant must demonstrate that there was some misapplication of principle in his sentencing, even though where and how is not apparent from the statement of the sentencing judge’s reasons. The applicant must establish that the sentence was unreasonable or plainly unjust.

16. This has to be established in a context where there is no single correct sentence and where judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

17. This Court has been critical of applicants approaching sentence appeals by a search for and comparison with sentences passed in other cases. One cannot adjudge whether a sentence falls within an appropriate range by reasoning from particular instances. In Vandeventer v R [2013] NSWCCA 33 at [45] Adamson J (with whom McClellan CJ at CL and Rothman J agreed) stated:

“45   ... Applicants will always be able to find cases where offenders appear to have been dealt with more leniently. So, too, will the Crown be able to find cases where offenders have apparently been dealt with more severely than the applicant for leave to appeal on sentence. This is not, however, the way in which this Court determines whether a sentence is manifestly excessive.”

18. In TheQueen (Cth) v Pham (2015) 256 CLR 550; [2015] HCA 39 French CJ, Keane and Nettle JJ summarised the principles in relation to comparable cases and appellate intervention at [28] as follows:

“28   Previous decisions of this Court have laid down in detail the way in which the assessment of sentences in other cases is to be approached. It is neither necessary, therefore, nor of assistance to repeat all of what has previously been said. But, in view of the way in which the Court of Appeal approached the task in this case, it is appropriate to re-emphasise the following:

(1)   Consistency in sentencing means that like cases are to be treated alike and different cases are to be treated differently.

(2)   The consistency that is sought is consistency in the application of the relevant legal principles.

(3)   Consistency in sentencing for federal offenders is to be achieved through the work of intermediate appellate courts.

(4)   Such consistency is not synonymous with numerical equivalence and it is incapable of mathematical expression or expression in tabular form.

(5)   For that and other reasons, presentation in the form of numerical tables, bar charts and graphs of sentences passed on federal offenders in other cases is unhelpful and should be avoided.

(6)   When considering the sufficiency of a sentence imposed on a federal offender at first instance, an intermediate appellate court should follow the decisions of other intermediate appellate courts unless convinced that there is a compelling reason not to do so.

(7)   Appellate intervention on the ground of manifest excessiveness or inadequacy is not warranted unless, having regard to all of the relevant sentencing factors, including the degree to which the impugned sentence differs from sentences that have been imposed in comparable cases, the appellate court is driven to conclude that there must have been some misapplication of principle.”

19. The applicant in his submissions has not identified in what way, or why, it is said that the sentence imposed is manifestly excessive. While the courts have deprecated as inappropriate improper reliance on statistics and comparisons with other cases, the concept of manifest excess still requires some evaluation of what the appropriate range is said to be. No such process has been undertaken by the applicant other than to assert that the sentence imposed is excessive in the light of the factual findings made by the sentencing judge.

20. What appears to be the true complaint by the applicant in relation to the sentence is that the sentencing judge gave inappropriate weight to the quantity of the drug as opposed to the independent assessment of the objective criminality based upon what was done by the applicant in his “menial” role.

21. The approach to the quantity of drugs taken by the sentencing judge was as follows:

“The amount of the drug

Despite the criticisms expressed by the High Court in Wong v R and Leung v R [2001] 207 CLR 584 the weight of the drug remains a relevant factor to which the Court must have regard in determining the seriousness of the offence.

Here the drugs recovered amounted to 142.64 kilograms of methamphetamine with a purity of 80%. This meant that the pure amount on which the Commonwealth charge is founded was 114 plus kilograms of methamphetamine. A commercial quantity of the border controlled drug methamphetamine is 0.5 kilograms or more. Therefore the amount involved here is 228 times greater than the prescribed commercial quantity threshold. In anyone’s book this is a very significant amount of drugs. It clearly had the potential to wreak havoc on the streets and to destroy lives.

Giving the planning and organisation involved in altering no less than 11 generators so as to cleverly conceal such a large amount of methamphetamine, to ship it from Mexico to Australia, and to have people on the ground at appropriate stages to facilitate the importation and attempted possession, I accept that the jury, having found each accused guilty of the charges that they faced, found that there was knowledge that a very significant quantity of drugs, weighing many kilos, must have been involved, and that knowledge goes to each of the four offenders.

... For instance, Prince Ibeh and Mr Ozoani had only removed one of the cylinders and they knew how much drug was involved at that point. Extrapolating the amount recovered from one cylinder over 11 generators is not a hard task. Therefore it does appear from the evidence overall that the offenders were aware of a substantial amount of methamphetamine and it was in the vicinity of 139 kilograms at least.” (Sentence judgment 25.9-27.1)

22. There is no apparent error in the approach of the sentencing judge to the calculation of the quantity of drugs involved. In particular, the applicant was involved in obtaining the use of a property of adequate size to permit access with a fork lift to the contents of two shipping containers. The weight of drugs is always an important factor in evaluating the objective seriousness of the relevant offending. It is a factor of even more importance where the offender knew the weight involved. This is so even where weight is not the most important factor. It is not clear how and in what way it is said that the sentencing judge erred with respect to the issue of weight.

23. The sentencing judge found that the applicant had a lesser role than others and in particular Mr Ozoani. What his Honour did not find was that the applicant occupied a “menial” role, other than in a relative sense when compared to the other offenders. His Honour’s findings about the role of the applicant are clearly stated and are not challenged. It follows that there was no failure to find the facts relevant to the role of the applicant and no failure to have regard to those findings in light of the quantity of the drugs involved.

24. It needs to be understood that the primary obligation when sentencing for an offence against the Criminal Code (Cth) is to impose a sentence “… that is of a severity appropriate in all the circumstances of the offence” (s 16A(1) Crimes Act 1914 (Cth)). While s 16A(2) creates a list of matters that must be taken into account, none of those matters detract from that primary obligation. With any offence of this kind, there must be an expectation of a sentence which recognises the seriousness of the type of offending and in particular, the amount of drug involved and its value to the importer and persons seeking to gain possession of it.

25. When one has regard to only the ground of appeal actually articulated, i.e. manifest excess, the following considerations are relevant:

1. no proper range of sentences has been identified to permit any comparison to be made;

2. the offence is one that carries a maximum penalty of life imprisonment;

3. the conduct of the applicant took place over a period of six weeks;

4. the nature of the enterprise in which the applicant was involved was of a gravely serious nature, even if his role was not managerial. That is so, at least in part, because of the quantity of the drugs involved;

5. the applicant played an important role as a trusted aide to Mr Ozoani in the overall enterprise, and he was due to be financially rewarded once Mr Ozoani came into possession of the drugs; and   

6. this importation was of a scale that involved travel, secrecy, numerous participants and the need for a discreet industrial location to access the drugs.

26. It follows that the sentencing judge had a solid basis on which to sentence the applicant as he did. This ground of appeal should be dismissed.

Ground 2 – His Honour erred in not properly taking into account the prior good character of the applicant

27. The applicant’s criminal record was relatively minor and it was not contended in the sentencing hearing that those offences were of any relevance.

28. The applicant dealt with good character in a very limited fashion in written submissions where the following was said:

“51   His Honour accepted that there was prior good character and he was “entitled to some mitigation” as a result but erroneously considered this as of “less weight as a mitigating factor”.

52   While it is not an unusual characteristic of persons involved in drug importation, this was a case where the offender had not promoted his or her value to a prospective criminal enterprise by touting a suitability based upon such matters (Woodrum v R [2019] NSWCCA 270 at [24]) and given the menial nature of his involvement could have no impact on the success or otherwise of the importation”.

29. In those paragraphs, the applicant’s apparent complaint is that because he did not use his good character to make himself a more attractive proposition to his co-offenders, there was no basis for the sentencing judge to give less weight to his “good character”.

30. The problem with that submission is that nothing was put to the sentencing judge in those paragraphs as to how his good character was to be deployed in reducing his sentence. All that is covered in the written submissions was his strong work ethic and his community involvement.

31. In contrast, the Crown submission was:

“It is a well established principle, however, that for offences of this nature prior good character is generally of less weight as a mitigating factor; (good character is not an unusual characteristic of persons involved in a drug importation).

Where general deterrence is of particular significance, the corollary is that previous good character and other factors personal to the offender are usually accorded less weight.

Good character may also carry little weight where the offending was deliberate and consisted of a course of conduct over a long period.” (AB 197 at [104]-[106].)

32. Moreover, there is always a difficulty for an applicant where a ground of appeal is expressed in terms of an attack on the weight to be given to a particular factor. The criticism in this ground of appeal is that his Honour did not “properly” take good character into account. Implicit in such a challenge is an acknowledge that the court did take a relevant factor into account.

33. In any event, the sentencing judge did expressly take into account the good character of the applicant by way of mitigation. His Honour said:

“The Crown acknowledges that none of the four offenders have any relevant prior convictions. Mr Udunna has a record of minor traffic infringements, the others have no convictions. Acknowledging that it is a well-established principle that for offences of this nature prior good character is generally of less weight as a mitigating factor, each of the four offenders can be considered to be of good character and are therefore entitled to some mitigation.” (Sentence judgment 32.5)

34. Once it is accepted that effect was given to the applicant’s prior good character by way of mitigation, the only issue becomes the extent to which an allowance should be made. That being so, it is trite to observe that the weight to be given to a factor on sentence is a matter for the sentencing judge. An appellate court will be hesitant to interfere with a question of the weight to be given to a particular factor (Stines v R [2019] NSWCCA 115 at [22]-[25] per Leeming JA).

35. Finally, the following statements of principle in the cases concerning good character do not support the applicant’s submission:

1. offences involving the importation and distribution of drugs require a high degree of emphasis on requirements of general deterrence (R v Leroy (1984) 2 NSWLR 441);

2. the prior good character of a person involved in a drug importation offence is generally to be given less weight as a mitigating factor in sentence: R v Barrientos [1999] NSWCCA 1 at [52]-[57]; Regina v Paliwala (2005) 153 A Crim R 451; [2005] NSWCCA 221 at 456-457 [20]-[25]; R v Lee [2007] NSWCCA 234 at [14]; good character is not an unusual characteristic of persons involved in drug importation: Okafor v R [2007] NSWCCA 147 at [47]; Onuorah v R [2009] NSWCCA 238; 234 FLR 377 at [49];

3. the sentence was well within the range appropriate for the offence committed notwithstanding the applicant’s prior good character. It has often been remarked in this court that good character is not an unusual characteristic of persons involved in drug importation. It has also been stated many times that less weight can, therefore be given to such a factor in light of the seriousness of being involved in the importation of a significant quantity of drugs at any level (Okafor v R at [47]);

4. in my opinion, as submitted by the Crown, there was no error by the sentencing judge in giving less weight to the appellant’s youth and lack of prior convictions having regard to the nature of the offence (Onuorah v R at [49]).

36. It follows from the above that this ground of appeal has not been made out and should be dismissed.

37. Accordingly, the orders which I propose are:

1. An extension of time until 28 October 2020 is granted for the applicant to seek leave to appeal against sentence.

2. Leave to appeal against sentence is granted.

3. The appeal against sentence is dismissed.

38. HARRISON J: I agree with Hoeben CJ at CL.

39. IERACE J: I also agree with Hoeben CJ at CL.

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Decision last updated: 25 November 2020