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Court of Criminal Appeal 1 December 2010

Okeke v R

[2010] NSWCCA 266

DrugsFraud & dishonesty
PROCEEDINGS AFTER CONVICTION APPEAL SENTENCING COMMONWEALTH OFFENCES DRUG OFFENCES WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: Okeke v R [2010] NSWCCA 266
Court: NSW Court of Criminal Appeal
Date: 1 December 2010
Judge(s): Simpson J, Price J, Howie AJ

Background

The applicant pleaded guilty in the Local Court to five Commonwealth offences: three counts of attempting to possess a marketable quantity of a border controlled drug (cocaine and heroin), one count of possessing a marketable quantity of heroin, and one count of recklessly dealing with proceeds of crime ($61,500). He was committed to the District Court for sentencing and sentenced by Sorby DCJ on 4 February 2010.

The offending involved the applicant arranging to receive overseas packages he believed contained narcotics, using fraudulent identities and leased private mailboxes at newsagencies. Federal police intercepted the packages and removed the drugs before delivery. The offences attracted maximum penalties of 25 years' imprisonment for the drug counts and 7 years for the proceeds of crime count.

The District Court sentenced the applicant to individual terms across the five counts, partially accumulated, and then imposed what his Honour described as a single "parole period" of two and a half years. The applicant sought leave to appeal, contending both a structural error in how the sentences were constructed and that the overall sentence was manifestly excessive.

  • Whether the District Court failed to comply with section 19AB of the Crimes Act 1914 (Cth) when structuring the sentences for multiple Commonwealth offences
  • Whether the overall sentence of 10.5 years was manifestly excessive in all the circumstances
  • Whether the non-parole period of 8 years (76.2% of the overall sentence) was excessive
  • Whether the sentencing judge gave sufficient weight to the applicant's subjective circumstances, properly assessed his objective criminality, and avoided unnecessary accumulation between related offences

Decision

The Court of Criminal Appeal found that Sorby DCJ had misapplied section 19AB(1)(b) of the Crimes Act 1914 (Cth). That provision requires a court, when sentencing an offender for two or more Commonwealth offences where the total sentence exceeds three years, to impose head sentences for each individual offence and then fix a single non-parole period over the aggregate. Instead, his Honour had treated the individual sentences as though they were non-parole periods, then imposed a single parole period that bore no clear relationship to any individual head sentence. The Court characterised this as an error in the pronouncement of the sentence rather than in its underlying determination.

On the question of manifest excess, the Court observed significant arbitrariness in the individual sentences as imposed: the relationship between the counts was unexplained, no discount for the guilty pleas could be identified from the structure, and it was unclear what head sentence had been intended for Count 4. The Court accepted that the non-parole period, at 76.2% of the total sentence, was excessive and should instead reflect approximately 65% of the overall head sentence. The overall head sentence of 10.5 years was retained.

Howie AJ, with whom Simpson J and Price J agreed, acknowledged the difficulty in reconstructing the individual sentences to both comply with section 19AB and reflect the relative seriousness of each offence while keeping the same overall head sentence. The Court resentenced the applicant on all five counts with restructured, partially accumulated terms and fixed a single non-parole period of 6 years and 10 months.

Orders Made

  • Leave to appeal granted and the appeal allowed
  • Sentences imposed in the District Court quashed
  • Applicant resentenced as follows:
  • Count 1: 2 years' imprisonment (1 August 2009 to 31 July 2011)
  • Count 2: 7 years' imprisonment (1 August 2010 to 31 July 2017)
  • Count 3: 4 years 6 months' imprisonment (1 August 2010 to 28 February 2015)
  • Count 4: 6 years 6 months' imprisonment (1 August 2012 to 31 January 2019)
  • Count 5: 18 months' imprisonment (1 August 2008 to 28 February 2010)
  • Single non-parole period of 6 years 10 months (1 August 2008 to 31 May 2015)

Key Takeaways

  • Under section 19AB(1)(b) of the Crimes Act 1914 (Cth), where a court sentences an offender for two or more Commonwealth offences and the total term exceeds three years, the court must impose individual head sentences for each count and then fix a single non-parole period over the aggregate. Treating individual sentence components as non-parole periods and appending a single parole period does not satisfy this requirement.
  • The District Court's error was characterised as one of pronouncement rather than underlying sentencing judgment, allowing the Court of Criminal Appeal to correct the structure without necessarily revisiting the overall head sentence.
  • A non-parole period representing 76.2% of the overall head sentence was found to be excessive in the circumstances. The Court of Criminal Appeal substituted a non-parole period of approximately 65% of the total sentence, consistent with the standard range for Commonwealth offences.
  • Arbitrariness in the structure of individual sentences, including unexplained disparities between counts and the absence of any identifiable discount for guilty pleas, made it difficult to reconstruct the sentencing exercise. The Court noted this difficulty while still maintaining the overall head sentence the sentencing judge appeared to have intended.
  • Written submissions to a sentencing court that correctly identify applicable statutory provisions are not sufficient to prevent error if the sentencing judge misapplies those provisions. The Court of Criminal Appeal must still intervene to ensure structural compliance with Commonwealth sentencing law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 19AB, 19AB(1)(b)
- Criminal Code 1995 (Cth), ss 11.1, 307.6, 307.9(1), 400.5

Cases
- Georgopolous v R [2010] NSWCCA 246
- Nahlous v R [2010] NSWCCA 58
- Sivell v R [2009] NSWCCA 286