New South Wales Court of Criminal Appeal CITATION: John Kala Okeke v Regina [2005] NSWCCA 444 HEARING DATE(S): 16 December 2005 JUDGMENT DATE: 16 December 2005 JUDGMENT OF: Mason P at 1, 23, 25; Barr J at 2; Hall J at 24 DECISION: Leave to appeal granted. Appeal dismissed. PARTIES: John Kala Okeke, Regina FILE NUMBER(S): CCA 2005/897 Applicant: S Kluss COUNSEL: Respondent: LK Crowley Applicant: Ross Hill & Associates SOLICITORS: Respondent: Commonwealth Director of Public Prosecutions LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 03/11/0945 LOWER COURT JUDICIAL OFFICER: Freeman DCJ IN THE COURT OF CRIMINAL APPEAL 2005/897 MASON P BARR J HALL J 16 DECEMBER 2005 JOHN KALA OKEKE v REGINA Judgment 1 MASON P: I invite Justice Barr to give the first judgment. 2 BARR J: The applicant, John Kala Okeke, applies for leave to appeal against sentences imposed in the District Court. On 4 May 2004 he pleaded guilty to two counts of attempting to possess a prohibited import, namely narcotic drugs being not less than the trafficable quantity of cocaine. His trial had been listed to commence on 3 May but shortly before that date the prosecution served additional evidence upon the defence and it became apparent to the applicant that the Crown case was stronger than he had thought. That precipitated the pleas of guilty. Judge Freeman sentenced him on each count to nine years' imprisonment and fixed on each count a non parole period of six years. The sentences were ordered to be served concurrently. 3 On 9 and 10 February 2003 two packages from Brazil were intercepted by the Australian Customs Service at Sydney Kingsford Smith Airport. One was addressed to Stephanie Moore and the other to Mrs Loveline Phopson. The Moore package turned out, after analysis, to contain 190.3 pure grams of cocaine and the Phopson package 195.8 pure grams. The cocaine was removed and replaced and the packages reconstituted for a controlled delivery. On 11 and 13 February a man with an African accent telephoned the Strawberry Hills Post Office on three occasions to make enquiries about the two packages. The man made arrangements to collect them both on 14 February. 4 The applicant drove a courier van. He asked another driver from the same organisation to do him a favour and collect the packages from the post office and bring them to him. He supplied him with a letter purporting to be an authority signed by Ms Moore. The innocent man obliged and collected the packages. He delivered them to the applicant at the courier depot. The applicant put them into his own van and drove to the car park of a restaurant. He telephoned a co-offender, Emeka Augustine Egbue. Egbue met him there and the applicant handed him the Moore package. Egbue walked away. Police arrested Egbue in the street. A short time later they stopped and searched the applicant's vehicle. The contents of the reconstructed package were found in it together with the remains of the wrappings. 5 On 22 September 2003 Egbue was sentenced to imprisonment for five years with a non parole period of three years and four months. 6 The first ground of appeal asserts that the applicant has a justifiable sense of grievance by comparing his sentences with the sentence imposed on his co-offender Egbue. Having set out the facts, the sentencing judge concluded that "other than categorising his role as one of substance, I am unable to define it further". Referring to Egbue's role his Honour said that it was clearly subordinate to that of the applicant and that the applicant's sentences ought to reflect the differences between the two offenders. It was submitted on appeal that these two statements were inconsistent. It was submitted that the evidence showed that the applicant was a "conduit" for the drugs and not the end receiver. He was presumably not the person to profit most from their arrival. There was no evidentiary basis for a finding that Egbue's role was subordinate to that of the applicant. His Honour, it was submitted, unduly inflated and collated the objective gravity of each offence, offending against the principles in Pearce v The Queen. 7 What his Honour said was this - Egbue pleaded guilty to one count of attempting to possess the prohibited import cocaine. He pleaded somewhat earlier than this offender and was sentenced in September 2003 by Maguire DCJ. From that brief recitation of facts, it is necessary to draw some conclusions. The first is that on the known material, it is difficult to identify with precision the precise role played by this offender. It is sufficient, however, I think, to conclude that he was no mere foot soldier or courier. Clearly if he was not himself the African accented male who arranged for the two parcels to be collected together, he was privy to the arrangement whereby they would be picked up together. (I interpolate: by the innocent courier). He is guilty of course of two counts of attempting to possess this prohibited drug which distinguished his case from that of Mr Egbue. I think it is enough to say that clearly this offender was playing a role of some substance in relation to these two importations. He had the documentation which he had given to Flores and so on. Other than categorising his role as one of substance, I am unable to define it further. 8 I do not think that the applicant's complaint on appeal is justified. There was a substantial difference, noted by his Honour, between the roles of this applicant and Egbue, even though, as is often the case in drug offences, it was not possible to define precisely what the limits of the responsibility of each man were. Clearly enough the applicant was to some degree responsible for organising the movement of the drugs, something in which Egbue played no part. The applicant was responsible for retrieving and delivering the package to Egbue but Egbue only for receiving and dealing with one package. The applicant was responsible for dealing with the Phopson package as well. 9 It does not appear to me that the sentences offend against the principles in Pearce v The Queen. That case only requires that a sentencing judge who is sentencing for more than one offence impose for each offence a sentence appropriate to it. When that has been done questions of accumulation and concurrency will arise and the judge must deal with them. They are dealt ordinarily having in mind the totality of the criminality which the overall effective sentence must reflect. 10 Nothing in the judgments of the Justices of the High Court in Pearce v The Queen says that it is wrong to impose concurrent sentences. The case proceeds upon the understanding that concurrent sentences will be imposed from time to time. Nothing about the sentences imposed here suggests to me that the sentence imposed for each offence was not an appropriate one. 11 In my opinion the comparisons drawn between this applicant's and Egbue's roles would alone justify differential treatment of the two offenders. To them is to be added the fact that whereas the applicant pleaded guilty at the latest possible stage, one day after his trial was due to commence, Egbue pleaded guilty early and claimed, as he was entitled to, proper recognition of the fact. 12 In my opinion the first ground of appeal has not been made good. 13 The next ground of appeal asserts that his Honour gave insufficient weight to the applicant's subjective features. His Honour said this - The prisoner is now aged twenty-seven. He arrived in Australia travelling on a South African passport in September 1999. That passport was in the name of another man called Tomello James McCabee. This offender lodged a refugee application soon thereafter, giving as his reason his belief that he would be persecuted in Nigeria as a result of being homosexual. This application was refused. He was issued the next year with a Nigerian passport in his own name. He made a further application for migration to Australia in July 2000, after marrying Natalie Marsh, an Australian citizen on 17 June that year. In the course of that application, he said that he had come to Australia on another person's passport because he was running away from his country. That application for migration has been refused. Reviews have also been unsuccessful. There is a decision pending. It is not known what the outcome of that will be. Whether the offender is deported at the expiration of his non-parole period or minimum term is not something of which this Court is aware, nor is it something which this Court takes into account in deciding on the appropriate sentence. It should be added, in relation to what is known of the offender prior to February 2003, that he had been granted a bridging visa which had a "no work" condition, but he had previously purchased the franchise as a courier and he was operating that in his own name until the time of his arrest. Clearly, the prisoner has been less than honest with the Immigration Authorities as to his reasons for seeking refuge and as to his activities whilst so doing. 14 Having referred to section 16A Crimes Act (Commonwealth) and having concluded that the only appropriate punishment would be a sentence of full time custody, his Honour continued - Amongst other matters in section 16A which is meant to operate as a checklist are of course the degree to which the offender has shown contrition as well as the extent to which they have co-operated with authorities, the fact that he has pleaded guilty I have already indicated is to be taken into account, but I have heard no expressions of contrition from this offender. Indeed I have heard nothing from this offender except second-hand assertions concerning his family history and so on. As to his character and antecedents, I have already indicated that whilst he has no criminal convictions, it is clear that he was less than honest with the Immigration Department and I would conclude that he is not a person of good character. There is a report from a psychologist which purports to assess this offender's risk of re-offending as low, but that report seems to me not to take into account all that is known about this offender, including the dishonesty to which I have referred. I am unimpressed by that report and its purported attempt to paint this offender as a young man unlikely to offend again. Indeed it reflects no credit upon this offender that he committed these two serious offences, purely for financial gain. It is not to his credit that he was attempting, or at least prepared to, damage the fabric of this society, the very one to which he had repeatedly turned for acceptance and succour and this for the basest of reasons. 15 It was submitted on appeal that although his Honour was entitled to reject the applicant's claim of good character, his Honour failed to consider any other subjective feature apart from the pleas of guilty. In particular, there was evidence that he was the father of the child born to his wife and would be serving any sentence in a foreign prison. 16 His Honour made particular reference to s 16A and the check list which it is. I would take that to mean that his Honour took into account the matters contained in that section that were present and relevant to the sentencing of the applicant. 17 In fact, the applicant presented a poor subjective case. His Honour was correct in not making special allowance for the fact that the applicant had a wife and young child. It would be quite unrealistic to regard this case as one in which a foreigner was arrested and imprisoned in Australia and faced a substantial period of time in a place which had a language and customs unfamiliar to him without any support from his family at home. As the evidence showed, the applicant was voluntarily resident in Australia. But for these offences he would no doubt have wished to stay in Australia indefinitely. His wife and child were in Australia and could visit him if they wished to do so. There was nothing to distinguish this case from any in which a resident of Australia the member of a family was sentenced to serve a period of imprisonment. 18 It was submitted on appeal that the rejection of the applicant's claims to be of good character and to be entitled to special consideration for his family circumstances caused his Honour to increase the sentence that would otherwise have been imposed. Such a surprising conclusion could be reached only by inference. I would not draw such an inference. 19 The final ground of appeal complained that the sentence was manifestly excessive. Statistics published by the Judicial Commission of New South Wales were put before the court. They show that between October 1997 and January 2003 eight sentences were imposed for importing the trafficable quantity of cocaine. Seven of them resulted in gaol sentences. The minimum head sentence was three years and the maximum eight years. The minimum non-parole period or fixed term was one and a half years and the maximum four years. Two of the sentences were imposed on offenders with prior records. The head sentences were four and eight years respectively and the non-parole periods two and a half and five years respectively. 20 The maximum custodial sentence was imprisonment for twenty five years. It is impossible, in my view, to discern any tariff or appropriate range of sentences from these figures. There are too few cases. All the sentences contemplated in published statistics were imposed before section 16G Crimes Act was repealed. That section required sentencing courts to reduce sentences in States or Territories where no remissions were allowed for sentences. New South Wales was such a State. It was ordinarily appropriate to allow a discount of about one third for the lack of remissions. This is not the occasion to consider by what proportion sentences might be considered to have increased since the repeal of section 16G but it is sufficient to observe that pre- and post-repeal sentences are bound to be significantly different for that reason alone. 21 In my opinion this ground of appeal has not been made good. 22 I would grant leave to appeal but would dismiss the appeal. 23 MASON P: I agree. 24 HALL J: I also agree. 25 MASON P: The orders of the court will be as indicated. *********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.