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Court of Criminal Appeal 29 October 2004

Regina v Ogochukwu

[2004] NSWCCA 473

Drugs
CRIMINAL LAW APPEAL IMPORTATION OF A PROHIBITED IMPORT

Citation: Regina v Ogochukwu [2004] NSWCCA 473
Court: New South Wales Court of Criminal Appeal
Date: 29 October 2004
Judge(s): McClellan AJA; Adams J; Smart AJ

Background

The appellant was convicted by a jury in the District Court of being knowingly concerned in the importation of a prohibited narcotic import, contrary to s 233B(1)(d) of the Customs Act 1901 (Cth). The offence involved 217.9 grams of pure heroin (well above the 2-gram trafficable threshold), which had been concealed in a handbag posted from Bangkok and addressed to a fictitious person at a Sydney motel.

The evidence showed the appellant had pre-booked a motel room in cash, attended on multiple occasions to inquire about a package, provided a forged letter of authority in a false name, and was arrested moments after collecting the package from an undercover officer posing as a courier. The sentencing judge found the appellant had been "very active" in facilitating the delivery, though his role beyond that single act of collection was unknown.

Taylor DCJ sentenced the appellant to seven years and four months imprisonment with a non-parole period of five years. The remarks on sentence, however, contained language suggesting the sentencing judge may have treated the non-parole period as though it were the head sentence, reduced from eleven years by the application of a federal sentencing discount and then further by subjective factors.

  • Whether the sentencing judge erred by structuring the sentence so that the non-parole period corresponded to a figure the judge had previously described as the head sentence, adjusted for subjective factors.
  • Whether the overall sentence of seven years and four months (with a five-year non-parole period) was excessive in all the circumstances.

Decision

On the alleged sentencing error: The Court of Criminal Appeal accepted that the sentencing judge's reasons contained "unfortunate language." In particular, the phrase "the sentence is further reduced to five years by reason of the subjective factors" created genuine ambiguity about whether his Honour had confused the function of a non-parole period with that of a head sentence. Adams J noted that, as a matter of principle, subjective factors are relevant to both the head sentence and the non-parole period, not simply the latter.

Despite this, the Court concluded the problematic sentence was a "garbled reference" to the sentencing process rather than evidence of a fundamental misunderstanding. When that confused passage was set aside, the balance of the sentencing reasons disclosed a coherent and legally sound process. The Court found no error had actually infected the result.

On whether the sentence was excessive: McClellan AJA reviewed comparable sentencing decisions involving heroin importation and found that both the head sentence and the non-parole period, while perhaps at the higher end of the appropriate range, fell within it. The appellant had not pleaded guilty and therefore was not entitled to any discount for facilitating the course of justice or expressing contrition. The quantity of heroin was in the mid-range, no personal use was suggested, and financial gain was the only inference available.

The Court granted leave to appeal but unanimously dismissed the appeal.

Orders Made

  • Application for leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Confused or ambiguous language in sentencing remarks does not automatically produce a appealable error; the Court of Criminal Appeal will look at whether the reasoning, taken as a whole, discloses an actual error that infected the outcome.
  • As a matter of principle, both objective and subjective factors are relevant to the fixing of both the head sentence and the non-parole period; it is wrong in principle to treat subjective factors as operating solely to reduce the non-parole period below the head sentence.
  • In dismissing the appeal, the Court confirmed that an offender who proceeds to trial is not penalised for doing so, but equally receives no sentencing discount that would have been available on a guilty plea for remorse or cooperation.
  • A mid-range quantity of heroin imported for financial gain, with active facilitation of delivery by the offender, supported a sentence at the higher end of the applicable range even in the absence of prior convictions.
  • The Court applied the federal discount mechanism under s 16G of the Crimes Act in assessing the appropriately adjusted sentence, consistent with the approach taken in cases such as Wong & Leung v The Queen (2001) 207 CLR 584.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(d)
- Crimes Act, ss 16G, 17A

Cases:
- Queen v Olbrich (1999) 199 CLR 270
- R v Che Yook & Sae Sung (1995) 84 A Crim R 432
- R v Ho [1999] NSWCCA 440
- R v Hollins (unreported, NSWCCA, 31 May 1996)
- R v Jason Paul Morgan (1993) 70 A Crim R 368
- R v Lawless (unreported, NSWCCA, 24 June 1994)
- R v Taru [2002] NSWCCA 391
- R v Wong & Leung (1999) 48 NSWLR 340
- R v Yu [1999] NSWCCA 6
- Wong & Leung v The Queen (2001) 207 CLR 584