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11
Court of Criminal Appeal 18 September 2009

Onuorah v R

[2009] NSWCCA 238

Also reported as (2009) 76 NSWLR 1
Drugs
CRIMINAL LAW APPEAL AGAINST CONVICTION CHARGE OF ATTEMPT

Citation: Onuorah v R [2009] NSWCCA 238
Court: NSW Court of Criminal Appeal
Date: 18 September 2009
Judges: Hodgson JA; McClellan CJ at CL; Howie J; Hoeben J; Fullerton J

Background

The appellant leased a mail delivery box under a false name in April 2006. A woman in Venezuela subsequently lodged a parcel with DHL addressed to that box, with cocaine secreted within a jewellery box. Venezuelan authorities intercepted the parcel, destroyed the drugs, substituted the cocaine, and forwarded the parcel to Australia, where the Australian Federal Police made a further substitution before delivery.

An undercover federal agent posing as a DHL officer made several calls to the appellant. The appellant used methods designed to avoid identification and attempted to distance himself from collecting the parcel in person. He ultimately arranged to collect it through a former colleague, presenting a false name when doing so. He and the colleague were arrested at that point.

The appellant was tried in the District Court before Freeman DCJ on a single count of attempting to possess a border-controlled drug (cocaine) that had been unlawfully imported, in a marketable quantity. The jury returned a guilty verdict, and the trial judge sentenced the appellant to seven years and ten months imprisonment with a non-parole period of four years and ten months.

  • Whether a conviction for attempting to possess a border-controlled drug that had been unlawfully imported is available when no actual importation of a border-controlled drug occurred (because the cocaine was seized and destroyed in Venezuela before reaching Australia).
  • Whether the absence of an actual element of the completed offence provides a defence, limitation, or qualifying provision under s 11.1(6) of the Criminal Code Act 1995 (Cth).
  • Whether the defence in s 307.6(5) of the Criminal Code applied where the accused believed he would receive cocaine but, as a matter of fact, no border-controlled drug had actually been imported.
  • Whether the sentence imposed was manifestly excessive, including whether the trial judge correctly applied the principle from R v Ferrer-Esis regarding the reduced weight of youth and good character in drug importation offences.

Decision

Conviction appeal: the impossibility point

The Court held unanimously that a conviction for attempt does not require the completed offence to have been physically possible. Under s 11.1 of the Criminal Code, an accused must intend each element of the relevant offence and must do acts that are more than merely preparatory to its commission. It is not necessary that the actual circumstances required for the completed offence exist, only that the accused intended them to exist. The fact that the cocaine had been destroyed in Venezuela and never lawfully or unlawfully imported into Australia did not preclude a conviction for attempting to possess a border-controlled drug that had been unlawfully imported.

The s 11.1(6) argument

The appellant argued that the absence of actual importation engaged a defence, limitation, or qualifying provision under s 11.1(6) of the Criminal Code. The Court rejected this. Section 11.1(6) uses language apt to describe matters that are extrinsic to the elements of the offence itself. It does not convert the prosecution's obligation to prove the elements of the offence into a defence available to an accused.

The s 307.6(5) defence

The Court held that s 307.6(5) has a narrower operation than the appellant contended. That provision is directed to the situation where a border-controlled drug has in fact been unlawfully imported, but the accused proves he or she did not know this. It does not apply where, as here, there was in fact no unlawfully imported border-controlled drug at all.

Sentence

The Court found no error in the trial judge's approach to the Ferrer-Esis principle, which reduces the weight given to youth and prior good character in serious drug offences. The sentencing court's starting point and the resulting head sentence were within the range open on the facts, and the sentence appeal was dismissed.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal against sentence dismissed.

Key Takeaways

  • A conviction for attempting to possess a border-controlled drug that has been unlawfully imported is available even where the drug was intercepted overseas and never actually reached Australia. Impossibility of completing the offence is not a bar to conviction under s 11.1 of the Criminal Code Act 1995 (Cth).
  • Under the Criminal Code framework, intention and knowledge are the fault elements for each physical element of an attempted offence. The accused must intend the relevant circumstances to exist; those circumstances do not need to actually exist.
  • Section 11.1(6) of the Criminal Code, which concerns defences, limitations, and qualifying provisions in the context of attempt, refers to matters extrinsic to the elements of the offence. It does not relieve the prosecution of its obligation to prove those elements, nor does it generate a defence where an element of the full offence is absent.
  • The defence in s 307.6(5) of the Criminal Code operates only where a border-controlled drug has in fact been unlawfully imported and the accused proves ignorance of that fact. It has no application in circumstances where no such drug was ever imported at all.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that reduced weight may properly be given to an offender's youth and good character in serious drug importation offences, consistent with the long-standing principle in R v Ferrer-Esis (1991) 55 A Crim R 231.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.1, 307.6
- Customs Act 1901 (Cth), s 233B

Cases
- Beckwith v The Queen [1976] HCA 55; (1976) 135 CLR 569
- Britten v Alpogut [1987] VR 929
- Haughton v Smith [1975] AC 476
- R v Adams [1935] HCA 62; (1935) 53 CLR 563
- R v Barbouttis (1995) 37 NSWLR 256
- R v Boulghourgian [2001] NSWCCA 460; (2001) 125 A Crim R 540
- R v Chapple [2001] NSWCCA 183
- R v El Azzi (2001) 125 A Crim R 113; [2004] NSWCCA 455
- El Ghourani v R [2009] NSWCCA 140
- R v Ferrer-Esis (1991) 55 A Crim R 231
- R v Hendricks [2001] NSWCCA 396; (2001) 125 A Crim R 303
- Korgbara v R [2007] NSWCCA 84; (2007) 71 NSWLR 187
- R v Mai (1992) 26 NSWLR 371
- Okafor v R [2007] NSWCCA 147
- R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340