Wedi Ndjeka Bembo v The Queen - [2019] VSCA 308

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2018 0010
S EAPCR 2019 0201

WEDI NDJEKA BEMBO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST, NIALL and ASHLEY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 December 2019
DATE OF JUDGMENT:	18 December 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 308
JUDGMENT APPEALED FROM:	DPP v Bembo (Unreported, County Court of Victoria, Judge Hogan, 20 September 2017) (conviction); [2018] VCC 15 (sentence) DPP v Bembo (Unreported, County Court of Victoria, Judge Cohen, 12 April 2019) (conviction); [2019] VCC 1352 (sentence)

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CRIMINAL LAW – Appeal – Conviction – Attempting to possess commercial quantity of border controlled drug – Commercial quantity of heroin imported in shipment of wooden furniture from Pakistan – Australian Federal Police took possession and effected controlled delivery of substituted substance to applicant’s associates – Circumstantial case that applicant attempted to take possession – Whether verdict unsafe and unsatisfactory – Leave to appeal refused – Combined forces of phone records, flight records, mobile telephone data and other evidence capable of establishing guilt – M v The Queen (1994) 181 CLR 487 applied.

CRIMINAL LAW – Appeal – Conviction – Attempting to possess commercial quantity of border controlled drug – Commercial quantity of methamphetamine imported in shipment of wooden logs from Nigeria – Prosecution case that applicant headed criminal enterprise and coordinated subordinates for delivery – Joint trial – Whether substantial miscarriage of justice by reason of applicant’s cross-examination by counsel for co-accused – Whether substantial miscarriage of justice by reason of jury address by counsel for co-accused –Whether substantial miscarriage of justice occasioned by failure to order separate trial – Leave to appeal refused – No miscarriage of justice by reason of co-accused’s counsel putting client’s defence to applicant in cross-examination and in final address – Criminal Procedure Act 2009, ss 193, 276 – R v Gibbins and Proctor (1918) 13 Cr App R 134 applied.

CRIMINAL LAW – Appeal – Sentence – Applicant sentenced to total effective sentence of 35 years’ imprisonment with 25 years non-parole for heroin and methamphetamine convictions – Whether principle of totality infringed – Whether personal circumstances given insufficient weight – Leave to appeal refused – Separate objective seriousness of each episode of offending reflected in total effective sentence – Impossible to accept applicant motivated by desire to provide for family – R v Crowley (1991) 55 A Crim R 201, R v Kerbatieh (2005) A Crim R 367 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Shwartz	Emma Turnbull Lawyers
For the Respondent	Mr K Armstrong, Mr J Dickie and Ms J Holmes	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

PRIEST JA
NIALL JA
ASHLEY JA:

Introduction

On three separate occasions between December 2013 and July 2016, as juries concluded, the applicant engaged in criminal activity in which he either conspired to import, or attempted to possess, commercial quantities of border controlled drugs. He was not very successful in his criminal endeavours, however, and with respect to each…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] VSCA 308
Decision Date: 18 December 2019

CaseChat Overview and Summary

The matter of Wedi Ndjeka Bembo v The Queen involved the applicant appealing against convictions for attempting to possess commercial quantities of heroin and methamphetamine, imported via separate shipments from Pakistan and Nigeria respectively. The applicant argued that the evidence against him was insufficient and that he was prejudiced by the conduct of co-accused counsel during the trial. The High Court of Australia was required to determine whether the verdict was unsafe and unsatisfactory, if there was a miscarriage of justice due to the conduct of co-accused counsel, and if the principle of totality in sentencing was correctly applied.

The court found that the evidence, including phone records, flight records, mobile telephone data, and other information, was sufficient to establish the applicant's guilt. The court rejected the argument that the verdict was unsafe and unsatisfactory, stating that the combined forces of the evidence were capable of establishing guilt. The court also found no miscarriage of justice by reason of the co-accused's counsel putting their client's defence to the applicant in cross-examination and in the final address. The court concluded that the separate objective seriousness of each episode of offending was reflected in the total effective sentence, and that the principle of totality was correctly applied.

The court further found that the applicant's personal circumstances were considered and given appropriate weight in the sentencing process. The court rejected the argument that the applicant was motivated by a desire to provide for his family, stating that it was impossible to accept this as a mitigating factor. The court held that the total effective sentence of 35 years' imprisonment with 25 years non-parole was appropriate, and dismissed the appeal against sentence.

The final orders of the court were that leave to appeal was refused, and the convictions and sentences imposed by the lower court were upheld. The applicant's appeal against conviction and sentence was dismissed in its entirety.

Orders