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Court of Criminal Appeal 8 March 2012

Kazeem OKANDEJI v R

[2012] NSWCCA 30

Drugs
CRIMINAL LAW APPEAL LEAVE TO FILE OUT OF TIME DISCRETIONARY ISSUES NO ARGUABLE CASE LEAVE TO EXTEND TIME REFUSED

Citation: Kazeem Okandeji v R [2012] NSWCCA 30
Court: NSW Court of Criminal Appeal
Date: 8 March 2012
Judge(s): McClellan CJ at CL, Johnson J, Rothman J (Rothman J delivered the leading judgment; the others agreed)

Background

The applicant was convicted by a jury of attempting to obtain possession of a prohibited import, namely cocaine in not less than a trafficable quantity, under the Customs Act 1901 (Cth) and the Criminal Code 1995 (Cth). The District Court sentenced him to 12 years' imprisonment with a non-parole period of eight years, commencing from August 2004. A separate, completed sentence was also imposed for failing to appear in accordance with his bail undertaking.

The prosecution arose from a controlled delivery operation in October 2003. Australian Customs intercepted a package from Brazil containing 774.3 grams of cocaine hidden inside a wall painting. The cocaine was replaced with an inert substance before the package was delivered. Evidence at trial established that the applicant used the pseudonym "Greg Adam" to track and redirect the consignment, was physically present near the delivery address, and was arrested in possession of the package along with three mobile phones registered in false names.

The applicant, who was self-represented, did not file his application for leave to appeal until 29 April 2011, approximately four and a half years after the sentence was imposed on 20 September 2006.

  • Whether leave to extend time for filing an application for leave to appeal should be granted, given the substantial delay of four and a half years.
  • Whether the sentencing judge failed to take into account that the offence was the applicant's first.
  • Whether the sentencing judge erred in classifying the applicant as the principal in the offence rather than a lesser participant.
  • Whether additional grounds raised for the first time on the morning of the hearing (including wrongful admission of evidence, failure to consider the applicant's youth and psychological state, and the lesser objective seriousness of an attempt compared to a completed offence) provided arguable grounds of appeal.

Decision

On the first ground, Rothman J found it had no factual basis. The sentencing judge had expressly noted the applicant's lack of prior convictions and his age of 28, and had taken his personal circumstances into account. The Court further noted that, given the nature of the offence and the sentence imposed, prior good character and absence of criminal history would carry limited weight, consistent with authority.

On the second ground, Rothman J found there was abundant evidence, accepted by both the jury and the sentencing judge, that "Greg Adam" was a pseudonym used by the applicant. The sentencing judge's finding that the applicant was the principal in the Australian leg of the importation, and not merely a courier, was plainly open on the evidence. Rothman J stated that even approaching the question of fact afresh, he would reach the same conclusion.

As to the additional grounds raised in written submissions on the morning of the hearing, Rothman J examined each in turn and found that they either lacked any factual basis or had already been appropriately considered by the sentencing judge. None constituted an arguable ground of appeal.

On the question of the extension of time, Rothman J noted the delay of four and a half years was manifest. The explanations offered, including a refused Legal Aid application and personal and family difficulties, did not amount to an adequate explanation. With no arguable grounds established and no sufficient reason for the delay, leave to extend time was refused.

Orders Made

  • Leave to extend time for the filing of the application for leave to appeal refused.

Key Takeaways

  • An application to extend time for leave to appeal will be refused where there is no adequate explanation for the delay and no arguable ground of appeal can be identified from the submissions advanced.
  • A sentencing judge's express acknowledgment of an offender's lack of prior criminal history satisfies the obligation to consider that subjective factor; the weight given to good character in serious drug importation offences may legitimately be limited.
  • Factual findings made by a sentencing judge about an offender's role in an offence, where plainly open on the evidence accepted by the jury, will not be disturbed on appeal.
  • Additional grounds of appeal raised for the first time in written submissions provided on the morning of a hearing will be considered, but their late introduction weighs against the applicant when combined with an already inadequate explanation for delay.
  • Under R v Nguyen; R v Pham [2010] NSWCCA 238, prior good character carries limited mitigating weight in cases involving serious drug importation offences.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(c)
- Criminal Code 1995 (Cth), s 11.1(1)
- Bail Act 1978 (NSW), s 51(1)

Cases:
- R v Nguyen; R v Pham [2010] NSWCCA 238