District Court New South Wales Medium Neutral Citation: R v Chiagozie [2018] NSWDC 298 Hearing dates: 20 April, 28 May 2018 Date of orders: 29 May 2018 Decision date: 29 May 2018 Jurisdiction: Criminal Before: Neilson DCJ Decision: Total sentence 7 years 6 months. NPP 4 years 6 months. Catchwords: CRIME – SENTENCE – Commonwealth offences Criminal Code s307.1(1) – importing a commercial quantity of methamphetamine (317.5 grams of pure drug) Criminal Code s302.3(1) – trafficking a marketable quantity of 2 border-controlled drugs (methamphetamine and cocaine – exact quantity of pure drug unknown) Legislation Cited: Crimes Act 1914 (Cth) Criminal Code Act 1995 (Cth) Cases Cited: Ruben Botero, (unreported, Court of Criminal Appeal, 24 June 1998) Xiao v R [2018] NSWCCA 4 Category: Sentence Parties: Regina (Crown) Fabian Ogochukwu Chiagozie (Offender) Representation: Counsel: Mr D Barrow (Crown) Mr P Kondich (Offender) Solicitors: CDPP (Crown) George Sten & Co Lawyers (Offender) File Number(s): 2016/164039 Publication restriction: Nil Judgment 1. HIS HONOUR: Fabian Ogochukwu Chiagozie stands for sentence as a consequence of pleading guilty to two substantive offences against the law of the Commonwealth of Australia. The first crime is one contrary to the provisions of s 307.1(1) of the Criminal Code. The offence can be shortly described as importing a commercial quantity of a border controlled drug, namely, methamphetamine. The maximum penalty for that crime is life imprisonment and/or a fine of 7,500 penalty units. The second offence is one contrary to s 302.3(1) of the Criminal Code and can be described as trafficking a marketable quantity of controlled drugs, namely, methamphetamine and cocaine. The maximum penalty for that offence is 25 years' imprisonment and/or a fine of 5,000 penalty units. 2. The offender was arrested on 27 May 2016 and has been in custody since that time, a period now of two years and two days. The first offence 1. Unfortunately, as is almost invariable these days, the agreed facts comprise 32 pages containing 117 paragraphs. The first part of the agreed facts is an "executive summary", but in an attempt to be succinct it does not contain all the necessary information upon which I can pass sentence. The importation offence occurred over a period of 23 days between 12 May 2016 and 3 June 2016. The offender was involved in the importation of five consignments from India, each containing methamphetamine. 2. The first consignment followed upon the offender's sending an SMS to an Indian telephone number saved in his contacts as "Emeka Bros" giving a name and address for a consignee in New South Wales. On 16 May 2016, four days later, an international consignment was sent from New Delhi in India. The consignee was the same as the details supplied to India by the offender on 12 May 2016 including the address and telephone number. The consignor was said to be Nisha Rani at a complex address in New Delhi. The content of the consignment was described as "Plastic plate". On 25 May 2016 the Australian Border Force seized the consignment. It was found to contain three water filters and each water filter concealed a white plastic bag containing methamphetamine. There were 544.4 grams gross of the drug with a purity of 80.3 per cent, giving a total weight of pure methamphetamine of 437.1 grams. 3. On 17 May 2016 the offender sent another SMS to "Emeka Bros" giving another name and address in suburban Sydney. Two days later on 19 May 2016 a consignment was sent from Rothak in India. The consignee was the same as the name, address and telephone number previously supplied by the offender to "Emeka Bros" and the consignor on this occasion was Nisha Rani, for the second time, but with a completely different address in India and a completely different telephone number. The content of the consignment was said to be "Cotton Less", but in fact contained another three water filters concealed within each of which was a white plastic bag containing methamphetamine. The consignment was seized by the Australian Border Force on 25 May 2016. Forensic testing revealed that the gross weight of the methamphetamine was 493.9 grams with a purity of 80 per cent. The package contained a total of 395.1 grams of pure methamphetamine. 4. On 25 May 2016 the offender sent an SMS to another telephone number in India saved in his contacts as "Hills". It provided an address is Baulkham Hills, New South Wales and a telephone number. On the following day a consignment was sent from Greater Noida in India addressed to Manish Singh at the address previously supplied by the offender at Baulkham Hills and giving the telephone number supplied by the offender on 25 May 2016. The consignor on this occasion was a Mathew Samsdu with an address that I do not quite understand. That may be because "Greater Noida" has been misspelt. The content of the consignment was said to be "2 Water Filter". On 3 June 2016 the Australian Border Force seized this consignment. It did contain two cylindrical water filters, but concealed inside each filter was a white plastic shopping bag containing methamphetamine. The gross amount of the methamphetamine was 488.3 grams with a purity of 80.3 per cent. The consignment contained a total of 392.1 grams of pure methamphetamine. The offender had sent the address and telephone number in Australia to the Indian telephone number at 7.14pm on 25 May 2016. 5. The facts concerning the fourth consignment indicate that on the same day at 7.36pm the offender sent an SMS to an Australian number giving a name, address and telephone number for a person at Winston Hills. Ten minutes later he sent a further SMS to the same number giving some further details the significance of which is unclear to me. On 26 May 2016 the fourth consignment was sent from New Delhi. It showed as the consignee the person identified by the offender at 7.36pm on 25 May 2016. Again the consignor was said to be Nisha Rami, but gave a completely third different address. The content of the package was described as "Hindu Greeta". That consignment was seized by the Australian Border Force on 3 June 2016. It was found to contain two cylindrical water filters similar to those in the third consignment. Concealed within each of the water filters in consignment four was a white plastic shopping bag containing methamphetamine. The gross weight of the methamphetamine was 489.7 grams with a purity of 80.3 per cent. The package contained a total of 393.2 grams of pure methamphetamine. 6. On 15 May 2016, that is, prior to the second, third and fourth consignments, the offender had sent an SMS to the Indian number described as "Hills" in his saved contacts. That provided an address at 33 Clackmannan Road, Winston Hills and a telephone number. That message was sent again to another Indian telephone number saved in the offender's contacts as "Hills" then the number "2". On the following day, 16 May 2016, a consignment was sent from Bombay in India. It was addressed to Robyn Yadav at the address at Clackmannan Road. On 26 May 2016 the Indian contact described as "Hills 2" sent the offender an SMS giving the name Robyn Yadav. 7. There were then a number of telephone calls on 26 May. One of them was from the offender to a co-offender Kwesi Wilson, to whom I shall refer as "Wilson", who is an Australian citizen who migrated to this country from the Gambia. The offender, who is a Nigerian national, and Wilson both speak in the Hausa tongue. There was a coded conversation between the pair in which they used the term "eggs" to describe methamphetamine. One statement made by the offender was this: "Some eggs have come. They asked me if you want some. Is 400 and I wanted to ask you if you will take 300." The gross weight of the methamphetamine eventually discovered in the fifth consignment was 395.4 grams with a purity of 80.3 per cent. The inference to be drawn from the conversation that I have just quoted is that the offender knew that approximately 400 grams of a border controlled substance were contained in an importation and the offender was asking Wilson whether he would take 300 of those 400 grams. 1. During a conversation initiated by Wilson subsequently but on the same day there was a discussion as to whether the consignment had arrived in Australia. The offender told Wilson that there had been two attempted deliveries two days previously. That caused a lengthy discussion between the two as to whether the course of conduct in letting two attempted deliveries occur in the past was something that should have occurred. Later there is a further conversation between the offender and Wilson after the offender made a telephone call to someone else. Part of this conversation between the offender and Wilson is this: "OFFENDER: Have told you, they didn't give it to anyone. They gave it to me. Is mine. I gave him the address. Do you understand? WILSON: Yes, you gave him the address, but since he has the tracking number he would know everything. OFFENDER: He only got the tracking today. They are checking it from overseas. WILSON: OK. OFFENDER: They normally wait until delivery was attempted and no-one was there to receive it before they will send the tracking. They would not send the tracking if the items have not arrived. It is only when they attempted delivery and no-one was there before they will send the tracking. So only sent it today. WILSON: Oh, OK. OFFENDER: Do you understand? So they have been checking and sent it today. We told them he is working so they text the tracking number to me. Do you want to see the time they text it? WILSON: OK. OFFENDER: He is coming home to see it. WILSON: OK. OFFENDER: They have not given it to anyone. The tracking number is with me. Am on my way going to his house. It is only when I get there that he will see the tracking number for the first time." The inference to be drawn from that conversation is that the offender had asked some unidentified person to attempt to collect the consignment. He had been unsuccessful and it was necessary to give the unidentified person the tracking details so that he might be able to collect it. It would appear that the unidentified person made no attempt to pick up the consignment with the tracking details. 1. Later in the day Wilson called the offender. During this telephone call the pair had a conversation in which they discussed obtaining a false identity card in order to pick up the fifth consignment. This was part of the conversation: "WILSON: Then I have to get some peoples to make a paper for us? So you have to send me the details then I can let the guys make the paper. OFFENDER: At least, better. How much do they charge for the ID? WILSON: $1,000. I told you already." A little later the offender called his Indian contact identified as "Hills". After that he sent an SMS to Wilson providing the name of the consignee and the address and telephone number of that alleged consignee for the fifth consignment. Later that night Wilson accessed a website to track the fifth consignment. A photograph of that search was saved onto Wilson's telephone. 1. Eventually Wilson went to the Post Office at Winston Hills in order to collect the fifth consignment. That occurred on 27 May 2016. At about 4.34pm Wilson, inside the Winston Hills Post Office, handed a piece of paper to an Australian Post employee that depicted a black and white image of a driver's licence in the name of Robyn Yadav at the address in Clackmannan Road, Winston Hills. The agreed facts show not a black and white image of a driver's licence, but a coloured driver's licence. Wilson then signed for the package and received the fifth consignment. 2. A minute later, members of the Australian Federal Police observed Wilson walking through the car park in front of the post office carrying the fifth consignment. He placed it in his van, a 2007 white Toyota HiAce. He was then arrested. A subsequent examination of the fifth consignment revealed that the package contained a combination of headphones, children's clothing and shoes, and concealed within the headphones was methamphetamine. As I have earlier mentioned, the gross amount of methamphetamine was 395.4 grams. The total pure methamphetamine was 317.5 grams. 3. Wilson then assisted the Australian Federal Police in a controlled operation whereby he agreed to facilitate the delivery of the fifth consignment with the methamphetamine replaced by an inert substance. At about 9pm Wilson met with the offender in Victoria Street, Smithfield. The offender arrived in another Toyota HiAce. He left his vehicle and moved to the side of Wilson's vehicle. Wilson then moved the consignment from his van into the offender's van. At two minutes past nine the offender entered the driver's seat of his van and attempted to drive off. He was then arrested in possession of the consignment concealing the inert substance. The offender has been in custody ever since. LUNCHEON ADJOURNMENT 1. The gross weight of the methamphetamine contained in the five consignments was 2,411.7 grams. The average purity of the drugs was 80.24%. The pure weight of methamphetamine actually imported was 1,935 grams, or 1.935 kilograms. 2. The commercial quantity of methamphetamine is 750 grams. The amount involved in this importation offence was approximately 2.2 times the commercial quantity. Having said that, it must be pointed out that methamphetamine is often imported in much larger quantities. It is often imported in quantities of tens of kilograms, if not hundreds of kilograms. Speaking with one of my colleagues at a function today, he told me that he had just received a verdict of guilty from a jury in which the accused had been found guilty of importing 144 kilograms of methamphetamine. Given the scale at which this drug is imported into Australia, the total amount of pure methamphetamine imported, 1.935 kilograms, was not large; in fact, it was towards the bottom of the range. Offender's role in the importation 1. There is no evidence that the offender could be categorised as the mastermind behind this attempt to import illicit substances into Australia. Indeed, the evidence points in the other direction. For example, in connection with the fifth consignment, it was proposed by Wilson that he obtain false identification so that he could pass himself off as Robin Yadav, of the address at Clackmannan Road, Winston Hills. However, before the current offender gave those details to Wilson, he made contact with the Indian number saved as "Hills" in his mobile telephone memory. In other words, the evidence suggests that the offender had to obtain permission from those in India to give details of the consignee to Wilson. There is no evidence that the offender forwarded any money, either before or after the importation, to those in India who were sending the drugs into Australia. However, the offender could not be described either as a mere courier. He was intimately involved in operating the scheme. 2. The Crown in its written submissions pointed out that the offender regularly undertook counter-surveillance measures to avoid detection from law enforcement authorities. The Crown lists those measures as these: "(1) operating a phone subscribed in false details; (2) frequently using different phone numbers and phone handsets, including the use of disposable 'burner' phones; (3) speaking in code over the telephone when referring to drugs or money; (4) speaking in Hausa with Wilson over the telephone when discussing drugs or money; (5) providing overseas contacts with consignment addresses, names and telephone numbers, unrelated to the offender, to be used as consignee details; (6) using an importation system whereby consignments were intentionally unable to be delivered, to allow anonymous collection from post offices; (7) distancing himself from the importation process by only receiving consignment tracking numbers once packages had entered Australia." Of those seven matters, the fourth, in my view, is not in any way to be seen as part of a criminal enterprise. It is common when two persons who have the same native language converse, that they converse in that native language. If Wilson and the offender were Italians, one would expect them to speak in Italian; if they were Spaniards, to speak in Spanish; if they were Germans, to speak in German. Their native language was Hausa, and it is acceptable that they converse in that language. The use of an African language may have greatly impeded the Australian law enforcement authorities, but it does not, in my view, suggest that using their native language was designed by this offender and/or Wilson to create difficulties for the Australian law enforcement authorities. 1. Counsel for the offender, Mr Kondich, submitted that these indicia indicated that the system was "primitive", but I would describe it as sophisticated, albeit not the most sophisticated scheme known to be adopted by those importing drugs into Australia via the mail system. 2. I am required to consider the offender's role in this importation to seek to identify the extent of his criminality. The Crown has submitted that the telephone intercepts in relation to consignment five indicate that the offender was implementing a familiar and well‑tested method of importation and collection, and that he was aware that there were many people involved in the syndicate. I agree with that submission. The Crown has submitted, furthermore, that the offender's conduct involved careful planning and execution. However, it has not been established that the careful planning was done by the offender himself. All that the evidence to me shows is that the offender utilised a familiar and well-tested method of importation and collection in which he may well have been trained, but which was the intellectual property, so to speak, of others. 3. Indeed, the offender said that he became involved in the drug importation/trafficking when he was approached and told by someone else that, if he collected parcels on behalf of another, he would be paid for it, or perhaps more correctly, that he was told that if he found others to collect parcels on behalf of him or her who approached him, he would be paid for finding those collectors. That can be found at the end of [22] of the report of Ms Marlene Headington, a psychologist, who examined the offender at the request of his solicitor at Long Bay Gaol on 13 February 2018. The offender agreed with that history when he gave oral evidence earlier today. 4. The defence has submitted that in respect of the importation offence, the objective seriousness fell "at the lower end of the scale". I would not use that terminology. Given the amount of drug imported, one might concur with the offence falling at the lower end of the scale, but given the offender's role as, in essence, a middle manager in the importation scheme, that in my view raises somewhat the level of culpability of the offender in this importation. It must also be borne in mind that the offender is not, and was not at any material time, a drug user. He became involved in the drug trade because he was short of funds, albeit that the shortness of funds was to support himself, his family in Australia and his father in Nigeria. 5. I cited to learned counsel for the offender the decision of Ruben Botero, (unreported, Court of Criminal Appeal, 24 June 1998), where Barr J pointed out that to make substantial amounts of money from trading in drugs for the purpose of the payment of personal and family debts is no less criminal than to make the same amounts for pure profit. The same principle extends to making any amount of money from trading in drugs, not just substantial amounts. It is merely a matter of logic. 6. Again, I prefer the characterisation to which I have referred earlier, that this falls below the mid-range of objective seriousness, but it falls more in the middle of the scale between the bottom of the range and mid-range, in my assessment. Searches 1. Since my recitation of the facts referable to the drug importation ended with the arrest of the offender, it is convenient at this stage to indicate the result of police searches and seizures. A search of the offender's HiAce van detected a money transfer receipt in the name of Wilson for a little over $100 transferred to a person in Ghana. That merely indicates, in my view, a relationship between the offender and Wilson. There was also a money exchange receipt dated 1 April 2016 in the offender's name, exchanging 700 euros for $1,003.73 Australian. There was also a money exchange receipt dated 5 April 2016, exchanging 2,500 pounds UK for $4,465.90 Australian. 2. Police also found two current drivers licences in the offender's name, giving two different addresses, each in Blacktown. There was also an undated replacement licence application in the offender's name. Perhaps that indicates that he may have been seeking to apply for a further driver's licence at a different address. Such matters are consistent with the offender's being involved in a syndicate which included both Wilson and Victor Pantaleo, whom I sentenced yesterday. 3. Three mobile phones were found on the offender's person at the time of his arrest. Those three mobile phones had dual SIM cards. One was a Nokia, one was a Samsung, and another was a Huawei. Subsequent examination of the offender's phones found multiple instances of communication with known and unknown numbers in relation to consignor details, various addresses and consignment numbers. A number of text messages were also found. The agreed facts lists details of consignment numbers and consignee details for what may represent three other importations. One was from Kuala Lumpur in Malaysia, another from Sao Paulo in Brazil, and another from New Delhi in India. Such intelligence does not in any way increase the offender's culpability for the crime which he admits he committed, but rather, militates against any submission, which was not made, that this was a "one off", "out of the blue" occurrence. The second offence 1. I turn now to the second substantive offence, trafficking a marketable quantity of controlled drugs, namely, methamphetamine and cocaine. The executive summary provides me with a schedule in which the four separate trafficking events have been identified. I set out this schedule below: Trafficking event Dates Gross weight in grams Drug Type number 1 Between 20-22 January 2016 530 Cocaine 2 Between 20-24 January 2016 1,000 Cocaine 3 Between 6-10 February 2016 A marketable amount Cocaine 4 Between 1-7 April 2016 200 Methamphetamine None of these supplies was a supply at street level. The offender was in a chain of drug distributors. 1. I turn to the first instance of trafficking. On 20 January 2016, Wilson called the offender. In essence, Wilson told the offender that "Eddie" told him that he wanted something to buy. The offender asked Wilson did that buyer want methamphetamine, and Wilson answered positively. The offender then asked how much the putative purchaser wanted, and Wilson replied, "Even 200 is okay". That conversation occurred about 3.31pm. That night at 10.23pm the offender called Wilson and during that conversation they used the word "stuff" to describe controlled drugs, and the term "nose" to describe cocaine, and the term "keys" to describe kilograms. The offender asked Wilson if the purchaser wanted cocaine. He wanted to know whether the purchase would want 1 kilogram or even 500 grams of that drug. Wilson then asked the offender if he had 500 grams. The offender said that he had in fact 530 grams and he said: "Is medium; medium size, 85 or even 80 is okay...the owner wants the money to pay for some stuffs that are on the way coming." It is unclear to me whether the "85 or 80" represents the purity of the drug or the amount to be paid for it. Later bits of the conversation indicate that it may represent a sum of money. 1. On the next day, 21 January 2016, the offender called Wilson. Wilson told the offender that he had gone to see "Eddie" and that Eddie's client was coming from Melbourne and that the client wanted 2 kilograms of drug. The offender replied that he only had half a kilogram of drug. He knew that there were 2 kilograms of drug available but he did not think that the "owner" would be happy to hand it over. Wilson then told the offender that the client was prepared to pay "within twenty-four hours". Eventually it was agreed that the offender would supply 530 grams of cocaine to Wilson. The supply occurred on 22 January 2016. It would appear that the offender attended upon Wilson near his residence in Lakemba, probably delivering the drugs to Wilson. About one hour after that was detected, Wilson called the offender and told the offender that Wilson had met with the ultimate buyer of the cocaine. Wilson said this: "He came. He and I are now going to his house. So I'll call you if there is any issue." The response made by the offender was merely, "OK." 1. The circumstances of the second instance of supply are roughly these. On 23 January 2016 at 4.48pm, Eddie called Wilson and told Wilson that the amount of cocaine previously supplied had been too small. There was then a discussion of obtaining more cocaine to supply to Eddie's friend from Melbourne. At 5.35pm the offender called Wilson. Following from their previous conversations about an amount of 2 kilograms of cocaine possibly being available, the offender told Wilson that a larger amount of cocaine greater than 1 kilogram was now available. 2. On 24 January 2016 at 6.09pm the offender called Wilson. He confirmed that the "owner" of approximately 1 kilogram of cocaine wanted an upfront deposit of $1,000. The pair then discussed how they could find $1,000. The offender asked Wilson if he had $1,000 and then Wilson replied, "Let's call Turbo and ask him, because I don't have any money. I just paid my lawyer, so am down." It is unclear to me who Turbo was. 3. At 9.01pm that evening the offender called Wilson and told Wilson that he had been to visit Victor Pantaleo to obtain some money from him and that Pantaleo was in the process of trying to raise $1,000. Apparently that was money that may have been owed by Pantaleo to the offender. Between 9.56pm and 11.16pm the offender and Wilson exchanged a series of calls in which the offender confirmed to Wilson that Pantaleo had given him $1,000 and that the offender had arranged to pick up the 1 kilogram of cocaine that night in order to give it to Wilson. The offender told Wilson that he would remove 50 grams of the drug from the total amount of the cocaine as Pantaleo raised the $1,000 by selling 50 grams of the drug to another person. 4. At 11.23pm Wilson called the offender and they arranged to meet at the house of Turbo, as Turbo owned scales and could assist with measuring out the 50 grams of cocaine from the total amount. The offender also told Wilson that the offender was bringing Pantaleo's customer to Turbo's house in order to supply the customer with the 50 grams of the drug that Pantaleo sold to his client for $1,000. 5. The third instance of trafficking again involved the transfer of a marketable quantity of cocaine from Chiagozie to Wilson in order for Wilson to sell it onwards. In one conversation on 8 February 2016, Wilson said to the offender that the ultimate purchaser was taking money to Eddie on that day so he would therefore call by there before coming to meet the offender, presumably to collect the drugs. 6. The final instance of supply is one with which I have a little familiarity because it is supply that involved Pantaleo for which Pantaleo has been sentenced. On 1 April 2016 Wilson called the offender. The pair discussed that the offender had just received an amount of a controlled drug and that Pantaleo was going to contact the offender about it. The pair then further discussed monetary amounts related to the sale of drugs and the amount of money that Pantaleo owed to each of Wilson and the present offender. There was reference to sums of US$40,000 in the conversations relating to outstanding debts. Whether that actually represented an outstanding debt or merely the value of a transaction is an interesting question but, viewed most favourably to the offender, it appears to be a reference to one drug dealing transaction rather than to the amount of any debt. 7. On 3 April 2016 at 3.31pm the offender called Pantaleo. During the call the offender asked Pantaleo about a sample of methamphetamine that he had previously provided to Pantaleo, and Pantaleo advised him that the quality was only "average". To use Pantaleo's own words, "nothin' to write home about". At 8.13pm Wilson called Pantaleo and during that call Pantaleo asked whether the offender had been in contact with Wilson, and Wilson said that he had, and Wilson also said to Pantaleo that he had the drugs, presumably that the offender had supplied the drug in question to Wilson. 8. At 9.49pm the offender called Pantaleo and confirmed that he had access to between 200 and 300 grams of methamphetamine, the methamphetamine that Pantaleo had previously tested. The offender agreed to provide it to Pantaleo for $8,500, of which the offender was to take a cut of $500. During this conversation the offender and Pantaleo used code to refer to methamphetamine. 9. On 5 April 2016 at 8.14pm the offender called Pantaleo to organise a time to collect payment for the methamphetamine which Pantaleo had agreed to on-sell to other buyers. Pantaleo told the offender that he was still waiting for potential buyers to view the methamphetamine, and the offender agreed to contact him on the following day instead. During the course of that conversation, there was a complaint about the quality of the drug. Mr Pantaleo said this, "It fuckin' tastes horrible, man." 10. On 8 April 2016 at 10.14pm, the offender called Wilson and told Wilson that he had collected money from Pantaleo on the previous day from the sale of the methamphetamine. During that conversation, Wilson told the offender that he had also seen Pantaleo on that day and Wilson was paid $2,000 by Pantaleo but it is clear that the two men, the offender and Wilson, did not regard any indebtedness of Pantaleo to be joint but several, that is, that what Pantaleo owed to the offender was different to money owed by the offender to Wilson. Seriousness of trafficking 1. The trafficking offence consists of four discrete instances of drug trafficking. For each of the offences, the offender was, as I have earlier indicated, a middle man obtaining drugs to sell to either Wilson or Pantaleo. The threshold for a marketable quantity of pure methamphetamine is 2 grams and the commercial quantity is 750 grams. The threshold for a marketable quantity of pure cocaine is 2 grams and the commercial quantity is 2 kilograms. The gross weight known of the cocaine supplied was 1,530 grams gross, which is well below 2 kilograms of pure cocaine. The gross amount of methamphetamine supplied was 200 grams, which is well below the commercial quantity of 750 grams. One must have doubts as to the quality of the methamphetamine supplied. It may only have been half pure methamphetamine. It could have been less. Indeed, it could have been much less. It is, therefore, quite impossible to know how much pure methamphetamine was actually trafficked. 2. Section 312.2 of the Criminal Code sets out the method for calculating combined drug quantities. The total combined amount of the gross controlled drugs in this matter is, according to the Crown's submissions, at least 1.025 times the combined commercial quantity. The Crown then accepted that the pure weight of the controlled drugs would fall below a commercial quantity. Indeed, it appears to me that it probably falls well below a commercial quantity of drug. 3. The Crown submits that, in the absence of pure weights being known, the Court ought find that the total amount of trafficked cocaine and methamphetamine was not towards the lowest end of the marketable quantity but, rather, within mid-range, having regard to these matters: 1. the logical conclusion to be drawn from the large amount of the gross weight of the drugs, being 200 grams of methamphetamine and 1.530 kilograms of cocaine; 2. the commercial and wholesale nature of the trafficking enterprise; 3. the ongoing nature of the trafficking enterprise involving the offender dealing with known associates, both Wilson and Pantaleo, on an ongoing basis; 4. the amounts of money involved in the transactions. It appears to me that the amount of pure methamphetamine was probably less than 100 grams; that the amount of pure cocaine may have been in the vicinity of 80%, perhaps 75% purity; that, all told, I could only comfortably be satisfied that the total amount of combined drug weight was about 1 kilo, which, as far as cocaine is concerned, is well below the commercial quantity, only half the commercial quantity. 1. Concerning the objective seriousness of this trafficking offence, the Crown submitted this: "The offender's motivation for committing the offence may be a relevant consideration in determining the objective seriousness of the offender's conduct. The objective seriousness of the offence is aggravated where it is committed for financial reward and may be mitigated where the offender's capacity to reason, to appreciate fully the rightness or wrongness of a particular act or to exercise appropriate powers of control have been affected." The problem with drug trafficking is that it almost always involves a consideration of financial reward, whether it be to extinguish one's debt, to obtain the wherewithal to carry on one's normal life or to fund one's own drug habit. It is true that drug trafficking engaged in by users to recover the costs of the drugs that they are using is fairly common and can mitigate the seriousness of the culpability for the offence. Here, as I have already pointed out, the offender was not a user and he appears to have engaged in trafficking as well as importing purely for financial considerations. 1. All told, considering the amount of the drug trafficked but considering the role of the offender in the trafficking as a middle man, it appears to me that this case is also below the midrange of objective seriousness. After all, a person who did all the trafficking himself of slightly under a marketable quantity for the purposes purely of financial gain and greed and for example trafficked it to vulnerable persons such as school children, might be towards the upper end of the range of objective seriousness for an offence contrary to s 302.3(1). Bearing in mind such considerations, it appears to me that this case falls below the midrange of objective seriousness, but that is not to diminish the offender's role in the trafficking organisation. 2. Much has been submitted about the sophistication of the syndicate in which the offender was involved, but it appears to have been "cracked" by the Australian law enforcement authorities within six months of its commencement and the fact that it did not survive for very long indicates that it was not the most sophisticated of syndicates that the law has known. Personal circumstances 1. The offender is now 43 years old. At the time he committed these offences between 20 January 2016 and 3 January 2016 he was 41 years old. He was born in Nigeria. He was born in a village called Jos and lived there until the age of nine. His father was a primary school teacher. He grew up in a Christian family. His mother was a member of the local church choir and sold food that she grew and groceries from the family home as part of a small business to supplement the family's income. Unfortunately the offender's mother died when he was nine years old. That was a significant point in his life. He told the psychologist Ms Headington that "The world just turned around". He found the loss of his mother emotionally difficult. He went to live with his grandmother. His older brother died within a year of his mother's death, of the same ailment which struck down his mother but the offender is unable to identify the ailment. There was some belief drawn from traditional medicine that there was some form of "voodoo curse" cast by some "witch doctor". 2. After living with his grandmother for a while he went to live with another family in a different town. That was thought to be necessary for his protection so that he could no longer be affected by the "voodoo". It is unfortunate that, having lost his mother, the offender also ceased to be under the care of his father. The offender told Ms Headington that his family was well respected within the community, given his father's role as a primary school teacher. His paternal grandfather had been a local councillor and his father had inherited his father's wealth. The offender still regards his father as a "good dad". He remained in regular contact with his father until he was arrested and incarcerated. The offender's father's health in recent times has been very poor. The offender was able to visit his father some time in 2015 despite its being dangerous for the offender to return to his native country. The offender visited his father because of his illness. His father took him to the site where his mother and brother were buried so that the offender could know where he could bury his father when his father died. According to the history given by the offender to Ms Headington, his father's health is so poor that he is regularly admitted to hospital, hence the need to provide money for his father's continuing health care. 3. The offender was schooled to the age of 12. At that time he moved to a city where he remained until 2009. According to Ms Headington's report, the offender went to the city with a friend to set up a grocery shop. The offender worked for his friend in the grocery shop and learned how to run a business. At 17 years of age the offender set up his own grocery business, buying wholesale produce and selling it on to other grocery shops. That business was successful and in 2006 the offender began trading in clothing instead of groceries. In 2007 he travelled to Dubai where he began buying wholesale fabric which he sold to businesses in Nigeria. He said that his business was very successful and he travelled between Dubai and Nigeria building up business contacts. He thought that his life was good. However he had to abandon that business in 2009 when he fled Nigeria because of perceived persecution. The report of Ms Headington says this: "In 2009 at age 34, Mr Chiagozie fled Nigeria to escape a massacre of Christians that was being carried out by "Islamic extremists". He said it began in 2001 and it escalated over the years until there was "nowhere to run". He said many of his friends were murdered and he recalled an occasion during which he was "running and jumping over dead bodies in the street" to escape and find safety. The extremists began setting fire to properties and businesses and Mr Chiagozie lost everything. He said a friend arranged a business visa for him to come to Australia and he was given no choice which country he would go to. Mr Chiagozie only had enough money to purchase a flight to Dubai, where he met with a business associate who provided him with the airfare to Australia. He said he had no belongings and no money when he arrived in Australia." The offender had been living somewhere in the north of Nigeria. That is an area affected by extremist terrorists. Not all of Nigeria is so affected, but I can accept that the area where the offender had been living was so affected. 1. Other than his birth family, the offender does not appear to have had any other family in Nigeria. When he arrived in Australia on his business visa he admitted to the immigration authorities that he was not coming to Australia to conduct business but rather to seek asylum from persecution. His business visa was revoked and he was sent to the Villawood Detention Centre. He remained there for 26 months. Ms Headington's report continues thus: "He described being unhappy at Villawood and finding the environment difficult. While in Villawood Immigration Detention Centre Mr Chiagozie built relationships with members of a church group who voluntarily visited detainees. He became "friends" with Ms Annie Nielsen and Mr Phil Bradley, her husband who were also voluntary visitors to the centre. Mr Chiagozie advised that prior to his release, Ms Nielsen and Mr Bradley offered to rent him a room in their home at Winston Hills which was paid for by the Red Cross. He moved in to their property in 2011 and later moved into a self-contained granny flat on their property. During this time Mr Chiagozie met his partner who also moved into the granny flat. Mr Chiagozie's visa application was denied by the High Court and he was detained at Villawood Immigration Detention Centre for a further four months while a spousal visa was processed. He returned to the granny flat until 2014 when he and his partner began renting a property in Blacktown. The property was in disrepair with multiple leaks and they returned to the granny flat some time after. When Mr Chiagozie returned to Sydney from his visit to Nigeria, he and his partner moved into a rental property which he furnished by collecting furniture that people had put out on the street for collection. He remained in this property until he was incarcerated in May 2016." 1. As that history says, the offender met his partner in 2011. Her name is Cassandra. She moved from Sydney to Port Macquarie to live with the offender in 2012. Cassandra had a 16 month old daughter from a previous relationship and the offender took that girl "as my own child". The offender and Cassandra, although not married, have three children. The eldest was born in December 2012 and the youngest was born in December 2015. The offender's partner's health has not been good. According to the history obtained by Ms Headington: "Mr Chiagozie advised that when his partner moved in with him, he was aware that she drank alcohol daily, but initially felt it was not a problem. He said he often drank "a few beers" of an evening, however his wife preferred to drink wine as it was cheaper. He said she generally started drinking alcohol by midday and at times he hid alcohol from her if she wanted to drink earlier. He said they began to argue about her level of alcohol consumption and her inability to care for their children while intoxicated. He said he was unable to work as he had to stay home to care for the children because his wife was too intoxicated." 1. After his arrest and incarceration, the offender continued to pay rent on the property in which Cassandra and the children were living. Prior to his arrest he had sent a shipment of furniture which he had collected to Nigeria and that furniture was sold and the money was remitted to Cassandra. The offender also borrowed money from his friends in Nigeria to continue to pay the rent. However, Cassandra was not able to cope. The children were removed by the Department of Family and Community Services. His stepdaughter was placed with her biological father with whom she had previously had no contact. The offender's three children were separated between two foster homes. Cassandra was scheduled at some stage under the Mental Health Act and admitted to a psychiatric facility for a period of time. Her alcohol consumption increased when the children were removed. She returned to Port Macquarie. The offender believes that she now has a new partner but the offender does not hold that against her, because it was his fault because he went to gaol. On release to parole the offender hopes to renew his relationship with Cassandra and to regain custody of their children. 2. The offender had regular contact with his children during the first year of his imprisonment, before the children were taken from Cassandra. Since then he has had some contact with his children, facilitated by Ms Annie Nielsen and Mr Phil Bradley. Ms Nielsen has provided a reference which is exhibit 3. She confirms much of what the offender told to Ms Headington. In that reference Ms Nielsen says this: "From visiting Fabian in gaol and his phone calls to us, it is obvious he is very sorry that he committed these offences and he said he will never break the law again. He has told us that he is very remorseful for what he did. He is missing out on being a father, caring for his children as they grow up. Fabian has told me that since being in custody he has participated in a drug and alcohol program and now understands the [effects] that drugs have on the community. He has told me that he is focusing on helping other inmates in prison and is proud of his role as a sweeper. I believe with appropriate support, including financial, physical and moral support (which we can help with) Fabian will be able to find work and be successfully rehabilitated into the community." 1. The offender also tendered a reference from a chaplain at Long Bay gaol, Reverend Peter Baines. He confirms that the offender is a trusted inmate in 13 Wing, Long Bay Hospital, Sector 2 in which he resides. He is a sweeper. In that reference, Reverend Baines said this: "He and the other inmates [who are sweepers] assist in the distribution of food rations, the washing of the inmates' clothing and the maintenance of acceptable standards within the wing. To perform these tasks, this small group of inmate workers are often allowed to remain outside their cells when all other inmates are locked away. In a maximum security facility, this represents a significant degree of confidence in the inmate on the part of staff." A little later in the same reference, the Reverend Baines said this: "He expresses deep remorse at being involved with drug trafficking and realises that doing so to support his large family is no excuse. He is now very aware of the harm that drugs do in the community, now living with people whose lives have been severely damaged." 1. The current offender is yet another offender who comes before me to say that he was quite unaware of the devastation wrought in our community by the use of illicit drugs, of how it destroys lives and causes grave anxiety and distress to members of families of those who are addicted to drugs, but are themselves drug free. As a migrant to this country, it may be that the offender is not a person who listens to the radio or watches television shows regularly which broadcast that information throughout the nation and, therefore, I can accept that he may have been somewhat naïve. However, the extent of the precautions taken to prevent detection must have drawn to the offender's attention the fact that what he was doing was seriously wrong and that the reason for dealing so harshly with drugs is because of the damage they do to the community. 2. Ms Headington considered whether the offender was suffering from Post-Traumatic Stress Disorder (PTSD) as a result of his experiences as a child from the age of nine when his family life was so disrupted by the death of his mother and brother, and also by his experiences due to the terrorism or extremism to which he was exposed that led to his fleeing Nigeria. However, Ms Headington concluded that the offender's scores on testing do not suggest that he is currently experiencing symptoms of PTSD to the extent that it would warrant a diagnosis of that condition. Testing did reveal that the offender had elevated scales for anxiety and dysthymia and depression, but not severe enough to warrant a diagnosis of major depression. I have constantly pointed out that any person standing for sentence for serious offences such as these it would not be normal if he or she did not suffer from anxiety and/or depression. It is often the product of the situation in which the offender finds himself, having been incarcerated for serious offences and awaiting a judge to declare his or her fate. 3. There is nothing in the report of Ms Headington which suggests that the offender's mental state in any way contributed to his offending conduct. However, aspects of his personality may have contributed. Ms Headington found elevated "compulsive personality traits". With the utmost respect, elevated compulsive personality traits are things that are commonly found amongst judges and senior members of the legal profession because they help judges and senior members of the legal profession perform their task well. She also found depressive personality patterns which indicate that the offender is likely to have lost hope and the ability to feel joyful. They also indicate a sense of worthlessness, low self-esteem and a tendency to be derogatory and critical of themselves. Again, that may represent the circumstances in which the offender currently finds himself. 4. However, Ms Headington also found that the offender had elevated scores for being a dependent personality. She went on to say this: "Dependent individuals seek security and reassurance from others and are often passive in their relationships, willing to do what their partner or friends want to in order to keep their affection and remain in favour." That can be seen in the fact that the offender remains supportive of Cassandra, whose alcoholism has rendered her unfit to be a mother at the current time. It also might indicate that, having been recruited into the drug trade, the offender could not escape from the blandishments of others to remain in it. That is consistent with a high score for masochistic or self-defeating personality traits. That indicates the offender may be vulnerable to being exploited and becoming a victim, and that might again be a reason that the offender became so heavily involved in the drug trade. However, Ms Headington believes that currently such views held by the offender may represent his deeply-held religious beliefs. Consideration 1. What the future holds for the offender is unclear. It is unclear whether when he is released to parole Cassandra will renew her relationship with him, casting aside her newfound relationship. If she does not, it is unclear whether the offender will continue to be entitled to the spousal visa which enables him to remain in this country. It is unclear whether he may be deported. It is unclear whether he will be granted custody of his children again. If he is granted such custody, deportation would probably not take place. However, if he needs to have the support of Cassandra to have custody of his children, it may well be that he would find difficulty in obtaining custody of the children if Cassandra remains untreated and is still an alcoholic when he seeks to have custody of the children. Many things are clearly unknown. 2. However, I accede to a number of submissions put to me by Mr Kondich for the offender. I accept that the offender is unlikely to re-offend. I am confident that the offender wants to rejoin our society as a worthwhile participant in it. He has done a presentence AOD course whilst in custody. After sentence, he may be able to be engaged in other courses which may assist in his rehabilitation. His release on parole is one that should be monitored to make sure that he does not mix again with those people or with those sorts of people who led to his being involved in the drug trade in the past. The offender will benefit from a prolonged period of supervision on parole to give him the best opportunity to re-join our society as a full participant in it. I accept that the offender is truly remorseful. 3. The offender comes before this Court as a man of prior good character. He has no criminal record in Australia and has told me that he has no criminal record in Nigeria. I accept that. However, as has been submitted by the Crown, often good character is of lesser importance in regard to drug trafficking because only those who are unknown to the police are likely to successfully engage in drug trafficking. 4. A submission has been made that there has been a delay in sentencing, putting the offender in a state of anxiety for now just over two years. I at first was not attracted to that submission because nothing appeared to have gone amiss in respect of the legal process. The offender was arrested on 27 May 2016. After pleading guilty, he was committed for sentence in this Court on 30 August 2017. The matter was first mentioned in this Court on 8 September 2017 when a sentencing hearing date of 20 April 2018 was fixed. The matter came before me on that day but I could only deal with Mr Pantaleo's case on that day. I stood both Mr Pantaleo's case and this offender's case over till yesterday and today. I completed sentencing Mr Pantaleo yesterday and then commenced the effective sentencing hearing of the current offender after lunch yesterday. There has been no real delay in this Court, but one can see a delay of over two years in the total mix of things. Given an ideal regime, one might expect that a man who pleaded guilty at the earliest available opportunity might be sentenced within a year. I can, accordingly, accept that the delay of two years, albeit not the fault of the Court but of the system, may have contributed to the anxiety that the offender has, as diagnosed by Ms Headington, and that is to be taken into account as a mitigating factor in the fixing of the appropriate sentence. 5. The sentence which I passed upon Pantaleo must also be borne in mind. After all, Pantaleo and the offender could be referred to as co-offenders. They were members of the same group of drug traders or drug traffickers. They were part of a syndicate which involved at least the current offender, Pantaleo and Wilson, who is not due to be sentenced by me until 19 October. However, in my view, the criminality of this offender for both his importation offence, which is different to Pantaleo's importation offence, and for his trafficking offence is somewhat greater than that of Pantaleo. 6. The offender, it is accepted by the Crown, pleaded guilty at the earliest available opportunity and is, therefore, entitled to a discount of 25% of the sentence otherwise to be passed upon him because of the utilitarian value of the plea, which utilitarian value I can now take into account following the decision of the Court of Criminal Appeal in Xiao v R [2018] NSWCCA 4. 7. In respect of the importation offence, in my view, the starting point for the sentence exercise is a sentence of nine years. I discount that by 25% and arrive at a head sentence of six years and nine months. For the trafficking offence, bearing in mind the offender was not a user, not a street dealer, was trafficking purely for financial gain, and that he was at least two steps removed from street level trafficking, I believe the appropriate starting point for the sentence is imprisonment for four years. After discounting that by 25%, I come to a head sentence of three years. 8. Were the sentences to be wholly cumulative, the total would be nine years and nine months. However, some concurrency is called for. Learned counsel for the offender submitted that the sentences should be wholly concurrent on the basis that the sentence for one offence encompasses the criminality for all the offences. However, I cannot accede to that proposition. The importation offence involved contact with India and being knowingly concerned in importation of drugs from India into Australia. The trafficking described in the agreed facts is different. The offender knew where to find drugs within Australia in order to obtain them and pass them on to Wilson or to Pantaleo with a view to their on-selling the drugs, Pantaleo at street level, Wilson perhaps to another retailer or perhaps at street level himself. That I do not know. However, the one sentence cannot encompass the whole of the criminality here involved. 9. Were these offences to be governed by the law of New South Wales, I would consider imposing an aggregate sentence, but it is not necessary for me to approach the matter in that fashion because of the regime established under the Crimes Act 1914 (Cth). Allowing for some accumulation, I have come to the view that the head sentence all told should be seven years and that the non-parole period should be four years and six months. That minimum period of incarceration to me represents the necessary sentence to account for both specific and general deterrence and to punish the offender for his conduct in involving himself in drug trafficking but while still allowing as much clemency as the Court is able to in the circumstances of this case, which is in many respects very difficult. 10. Fabian Chiagozie, on the charge that between 20 January 2016 and 7 April 2016 you trafficked a marketable quantity of controlled drugs, namely methamphetamine and cocaine, you are convicted. I sentence you to imprisonment for three years commencing on 27 May 2016 and expiring on 26 May 2019. On the charge that between 12 May 2016 and 3 June 2016 you imported a commercial quantity of a border-controlled drug, namely methamphetamine, you are convicted. I sentence you to imprisonment for six years and nine months commencing on 27 August 2016 and expiring on 26 May 2023. I fix a non-parole period of four years and six months commencing on 27 May 2016 and expiring on 26 November 2020. ********** Amendments 19 October 2018 - Corrected Solicitors on record. 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. Decision last updated: 19 October 2018