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District Court 11 September 2017

R v Okosi

[2017] NSWDC 400

Drugs
SENTENCE COMMONWEALTH OFFENCES

Citation: R v Okosi [2017] NSWDC 400
Court: District Court of New South Wales
Date: 11 September 2017
Judge: Neilson DCJ

Background

The offender, a Nigerian national who had arrived in Australia on a student visa in May 2014, was sentenced following guilty pleas to six charges arising from his involvement in importing cocaine and methamphetamine into Australia through the postal service. His student visa had since expired, rendering him an unlawful resident at the time of sentencing. The Australian Federal Police commenced their investigation in late 2014, and the offender was arrested on 6 May 2015 and had remained in custody from that date.

The offending centred on multiple consignments of border controlled drugs sent through the post, most notably a December 2014 shipment from China that concealed 10.96 kilograms gross of methamphetamine (at 80.3% purity) inside 17 microwave ovens. The offender's de facto partner, Maryann Adaobi Udeh, made bank deposits on his behalf to pay freight and storage costs for this and other consignments. A co-offender, Foster Okolie, was sentenced separately before the same judge.

The court heard that the offender had used falsely subscribed telecommunications services during the course of his offending, and that he gave oral evidence during the sentencing hearing which included at least one admitted untruth. His claimed role as a mere courier was contested by the facts, which showed he was actively monitoring consignments and coordinating their delivery.

  • The appropriate head sentence and non-parole period for each of the six counts, having regard to the maximum penalties under Commonwealth law
  • Whether the offender's role was limited to that of a courier or extended to a more principal and organising function
  • The weight to be given to the guilty plea and to the offender's oral evidence, including portions found to be untruthful
  • How to structure the sentences (including which terms to run concurrently or cumulatively) to achieve totality and proportionality across the rolled-up charges

Decision

Neilson DCJ found that the offender was not a mere courier but was the principal in many of the transactions. The microwave oven consignment alone involved more than eleven and a half times the commercial quantity of methamphetamine, attracting a maximum penalty of life imprisonment on count 3. The judge noted that the offender had known of his co-offender's involvement in illicit drug importation before the microwave oven consignment arrived, and that his attempts in oral evidence to minimise his role were treated with significant circumspection.

The court gave credit for the guilty pleas, consistent with the principles in R v Thomson; R v Houlton (2000) 49 NSWLR 383, and had regard to relevant factors including the offender's personal circumstances, his Nigerian legal qualifications, and the fact that he had been in custody since arrest. Despite these matters, the gravity and scale of the offending warranted substantial custodial sentences.

Six separate sentences were imposed, structured so that the most serious terms ran cumulatively to reflect the distinct nature of the offending across multiple transactions, while others were made concurrent. The sentencing structure produced a total effective sentence of 13 years and six months, with a non-parole period of nine years.

Orders Made

  • Count 1 (aiding and abetting attempted possession of unlawfully imported marketable quantity of cocaine): convicted; 3 years imprisonment commencing 6 May 2015, expiring 5 May 2018
  • Count 2 (importing a marketable quantity of methamphetamine and cocaine, rolled-up charge): convicted; 7 years and 2 months imprisonment commencing 6 May 2018, expiring 5 July 2025
  • Count 3 (attempting to possess a commercial quantity of illegally imported methamphetamine and cocaine): convicted; 8 years imprisonment commencing 6 November 2020, expiring 5 November 2028
  • Count 4 (dealing with $40,050 believed to be proceeds of crime): convicted; 1 year and 7 months commencing 6 May 2015, expiring 5 December 2016
  • Count 5 (trafficking methamphetamine and cocaine): convicted; 1 year and 7 months commencing 6 May 2015, expiring 5 December 2016
  • Count 6 (providing false or misleading information to reporting entities, rolled-up charge): convicted; 1 year and 2 months commencing 6 May 2015, expiring 5 July 2016
  • Total effective sentence: 13 years and 6 months, expiring 5 November 2028
  • Non-parole period: 9 years commencing 6 May 2015, expiring 5 May 2024
  • Forfeiture order made by consent under s 316 of the Proceeds of Crime Act 2002 (Cth)

Key Takeaways

  • A defendant's credibility during a sentencing hearing can directly affect findings of fact about their role in the offending. Here, the District Court found admitted untruths in oral evidence supported the inference that the offender sought to conceal a more substantial organising role.
  • Where an indictment uses rolled-up charges, each rolled-up count represents multiple distinct offences and the court must account for the full breadth of conduct when assessing seriousness and structuring the sentence.
  • Possessing a commercial quantity of a border controlled drug carries a maximum of life imprisonment under Commonwealth law, a ceiling that framed the sentencing exercise for the most serious count.
  • Guilty pleas attract a sentencing discount under the principles in R v Thomson; R v Houlton, but that discount operates within the overall constraint of ensuring the total sentence reflects the true criminality of a sustained and large-scale importation scheme.
  • A non-citizen offender's immigration status (here, an expired student visa rendering the offender unlawfully present in Australia) forms part of the factual background at sentencing, though it does not alter the applicable sentencing principles.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
- Proceeds of Crime Act 2002 (Cth), s 316

Cases
- R v Thomson; R v Houlton (2000) 49 NSWLR 383
- Tyler v R (2007) 173 A Crim R 458