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Court of Criminal Appeal 9 July 2020

Nweke v R

[2020] NSWCCA 153

Drugs

Citation: Nweke v R [2020] NSWCCA 153
Court: NSW Court of Criminal Appeal
Date: 9 July 2020
Judges: McCallum JA; Davies J; Button J

Background

The appellant, a Nigerian national held in immigration detention at Villawood Detention Centre, was convicted after a jury trial in the District Court of conspiring with persons unknown to import a commercial quantity of cocaine into Australia, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). The Crown's case rested primarily on intercepted telephone calls in which the appellant negotiated with associates in Nigeria and Brazil to arrange for an unwitting courier, an American citizen named Peter Strand, to transport cocaine from Brazil to Vanuatu via a transit stop in Sydney. Mr Strand's checked luggage, which contained approximately 2.514 kilograms of cocaine concealed in containers labelled as protein powder, was intercepted by police at Sydney International Airport.

The appellant did not dispute at trial that he had conspired to have cocaine transported from Brazil to Vanuatu. The live issue was whether the conspiracy extended to the subsequent importation of that cocaine into Australia, which was an essential element of the offence.

At sentencing, a complication arose because the appellant had committed the offence while on parole for a prior Commonwealth drug importation offence. The sentencing judge applied s 19AQ of the Crimes Act 1914 (Cth), which provides that a parole order is automatically revoked upon the imposition of a new sentence. The judge construed the provision to require the appellant to serve the entire unserved portion of the earlier sentence (3 years and 6 months) without any reduction for time spent at liberty on parole. The appellant challenged both the conviction and the sentence.

  • Whether the jury's verdict of guilty was unreasonable and unsupported by the evidence, specifically whether the intercepted telephone calls were sufficient to establish that the conspiracy extended to importing cocaine into Australia.
  • Whether the sentencing judge erred in construing s 19AQ(5) of the Crimes Act 1914 (Cth) to require the appellant to serve the whole of the unserved parole period, with no credit for "clean street time" (time spent lawfully at liberty on parole before reoffending).
  • Whether the overall sentence was manifestly excessive.

Decision

Conviction appeal dismissed. The Court held that the verdict was not unreasonable. Although the Crown case was largely circumstantial, the intercepted telephone calls, once decoded from their use of apparently deliberate coded language, permitted the jury to draw the inference that the ultimate destination of the cocaine was Australia. The itinerary's structure, including the deliberate arrangement for Mr Strand's luggage to be checked through to Vanuatu so he would not handle it during the Sydney transit, was consistent with the Crown's case that the stopover was designed to avoid detection while the cocaine made its way to Australia. The Court applied the principles in M v The Queen and R v Baden-Clay, confirming that an appellate court may only set aside a verdict where it was not open to the jury on the evidence; the evidence here passed that threshold.

Sentence appeal allowed on the parole issue. The Court found that the sentencing judge erred in construing s 19AQ(5). The provision does not require an offender to serve the entirety of the outstanding parole period. Rather, the offender is entitled to credit for time already served on parole without offending (clean street time). The remaining unserved portion of the earlier sentence was recalculated at 12 months and 2 days rather than 3 years and 6 months.

Sentence also reduced on the basis of manifest excess. The Court found the primary sentence for the conspiracy offence was manifestly excessive, reducing the term from 13 years and 9 months to 13 years and 3 months. The non-parole period was reduced from 10 years and 6 months to 8 years and 6 months running from 30 April 2014, with an eligibility date for release to parole of 29 October 2022.

A structural question was reserved. The Court identified an issue as to how ss 19AS(1)(d) and 19AR(1) of the Crimes Act interact when sentencing in this context, particularly where the non-parole period would nominally commence before either of the sentences under the proposed structure. The parties were granted leave to file supplementary submissions on this point within seven days.

Orders Made

  • Leave to appeal against conviction granted; appeal against conviction dismissed.
  • Leave to appeal against sentence granted; appeal against sentence allowed.
  • Original sentence quashed.
  • In substitution:
  • Outstanding sentence of 12 months and 2 days to commence 30 April 2014 and expire 1 May 2015.
  • For the conspiracy offence, sentence of 13 years and 3 months to date from 30 October 2014 and expire 29 January 2028.
  • Single non-parole period of 8 years and 6 months to commence 30 April 2014 and expire 29 October 2022.
  • Leave granted to the parties to provide supplementary submissions within 7 days on the structural issue arising from ss 19AS(1)(d) and 19AR(1) of the Crimes Act 1914 (Cth).

Key Takeaways

  • A conviction resting primarily on intercepted telephone calls in coded language may withstand an unreasonable verdict challenge where the totality of the circumstantial evidence, including travel arrangements and logistics, supports the relevant inference beyond reasonable doubt.
  • Under s 19AQ(5) of the Crimes Act 1914 (Cth), an offender whose parole is automatically revoked upon receiving a new sentence is not required to serve the entirety of the outstanding parole period. Credit must be given for time already spent at liberty on parole without reoffending ("clean street time").
  • In dismissing the conviction appeal, the Court applied the well-established M v The Queen standard: a verdict is only unreasonable where it was not open on the evidence, not merely where another jury might have acquitted.
  • The interaction between ss 19AQ, 19AR, and 19AS of the Crimes Act 1914 (Cth) raises structural complexities when backdating sentences to an arrest date, particularly in fixing a single non-parole period that might otherwise be ordered to commence before either sentence begins.
  • Appellate courts retain jurisdiction to correct both the legal construction of parole-revocation provisions and the quantum of sentence where manifest excess is established independently of any sentencing error.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 11.5(1), 307.1(1)
- Crimes Act 1914 (Cth), ss 16E, 19AA, 19AQ, 19AR, 19AS, 19APB
- Criminal Appeal Act 1912 (NSW), s 6

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53
- SKA v R (2011) 243 CLR 400; [2011] HCA 13
- Fennell v The Queen (2019) 373 ALR 433; [2019] HCA 37
- Morris v R (1987) 163 CLR 454; [1987] HCA 50
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22
- Dickson v R [2017] NSWCCA 78
- Obiekwe v R [2018] NSWCCA 55
- Mulholland v R [2019] NSWCCA 257
- Lehn v R [2016] NSWCCA 255
- R v Ahmed (2007) 15 VR 501; [2007] VSCA 49
- Lam v R (2014) 241 A Crim R 562; [2014]