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Court of Criminal Appeal 25 November 2020

Udunna v R (Cth)

[2020] NSWCCA 304

Drugs
CRIMINAL LAW SENTENCE APPEAL APPLICANT CONVICTED AFTER TRIAL 142KG OF METHAMPHETAMINE SENTENCE OF 10 YEARS WITH A NON PAROLE PERIOD OF 6 YEARS AND 6 MONTHS

Citation: Udunna v R (Cth) [2020] NSWCCA 304
Court: NSW Court of Criminal Appeal
Date: 25 November 2020
Judges: Hoeben CJ at CL; Harrison J; Ierace J

Background

The appellant was convicted after a 40-day trial of aiding and abetting an attempt to possess an unlawfully imported border controlled drug, namely 142 kilograms of methamphetamine (114 kilograms pure). The drugs had been concealed in electrical generators shipped from Mexico and were detected by Australian officials before delivery. The appellant was one of four men tried together.

The appellant's involvement included arranging the lease of a property in Rossmore to which the containers were delivered, maintaining extensive telephone contact with co-offenders, assisting with their travel, and participating in numerous meetings using a nickname and mobile numbers registered in false names. He was not present when two co-offenders physically accessed the generators at the Rossmore property on 3 June 2016 and was arrested that day.

The District Court sentenced the appellant to 10 years' imprisonment with a non-parole period of 6 years and 6 months. He sought leave to appeal, arguing the sentence was manifestly excessive and that the sentencing judge had failed to give proper weight to his prior good character.

  • Whether the sentence of 10 years with a non-parole period of 6 years and 6 months was manifestly excessive for the offence of aiding and abetting an attempt to possess an unlawfully imported border controlled drug.
  • Whether the sentencing judge erred in failing to give adequate weight to the appellant's prior good character as a mitigating factor.

Decision

On the first ground, the Court confirmed that appellate intervention for manifest excess is not warranted merely because the appellate court might have sentenced differently, or because the sentence differs from sentences in other cases. The appellant must demonstrate that the sentence was unreasonable or plainly unjust, reflecting some misapplication of principle. The Court found the appellant had not identified any specific way in which the sentence was said to be manifestly excessive, and the ground was not made out.

On the second ground, the Court accepted that the sentencing judge had in fact taken the appellant's prior good character into account. The dispute therefore narrowed to the weight given to that factor, which is primarily a matter for the sentencing judge. An appellate court will be reluctant to interfere with that exercise of discretion.

The Court reaffirmed a well-established line of authority holding that, in drug importation cases, good character generally attracts less weight as a mitigating factor. The reasons given in that body of case law are twofold: the serious nature of drug importation offences demands a high degree of general deterrence, and good character is not an unusual characteristic among those involved in such offending. No error was established in the sentencing judge's approach, and both grounds of appeal were dismissed.

Orders Made

  • Extension of time granted until 28 October 2020 for the appellant to seek leave to appeal against sentence.
  • Leave to appeal against sentence granted.
  • Appeal against sentence dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a sentence appeal on the ground of manifest excess requires more than showing that other cases produced different outcomes. The appellant must establish the sentence was unreasonable or plainly unjust due to a misapplication of principle.
  • Presenting numerical comparisons, tables, or statistical analyses of sentences in other cases was described as unhelpful and an inappropriate method for establishing manifest excess, consistent with the High Court's guidance in The Queen (Cth) v Pham (2015) 256 CLR 550.
  • Prior good character is generally afforded less weight as a mitigating factor in drug importation offences, given the strong policy emphasis on general deterrence and the observation that good character is not uncommon among participants in such schemes.
  • Where a sentencing judge has acknowledged and applied a mitigating factor, the weight assigned to it remains within the judge's discretion. An appellate court will be hesitant to intervene solely on the basis that greater weight might have been given.
  • In dismissing the appeal, the Court reinforced that consistency in sentencing means consistency in the application of legal principles, not numerical equivalence across cases.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 307.5(1), ss 11.1(1) and 11.1(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1914 (Cth), s 19AL

Cases:
- The Queen (Cth) v Pham (2015) 256 CLR 550; [2015] HCA 39
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 65
- Vandeventer v R [2013] NSWCCA 33
- Stines v R [2019] NSWCCA 115
- Okafor v R [2007] NSWCCA 147
- Onuorah v R [2009] NSWCCA 238; 234 FLR 377
- R v Barrientos [1999] NSWCCA 1
- Regina v Paliwala (2005) 153 A Crim R 451; [2005] NSWCCA 221
- R v Lee [2007] NSWCCA 234
- R v Leroy (1984) 2 NSWLR 441
- R v Nguyen; R v Pham [2010] NSWCCA 238