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District Court 15 December 2022

R v Obiekie; R v Garaty

[2022] NSWDC 654

Drugs
CRIME SENTENCING FEDERAL OFFENCES ACCUSED IMPORT BORDER CONTROLLED DRUG SENTENCING

Citation: R v Obiekie; R v Garaty [2022] NSWDC 654
Court: District Court of New South Wales
Date: 15 December 2022
Judge: Fitzsimmons SC DCJ

Background

Following a three-week jury trial, two co-accused were convicted of importing border controlled drugs into Australia in 2020. The first offender, a male resident of a Bankstown boarding house, was found guilty of two importation offences under the Criminal Code 1995 (Cth) and a separate state supply offence. The second offender, his romantic partner, was convicted of two importation offences, including one involving a commercial quantity.

The scheme involved importing methamphetamine concealed within car parts shipped to Australia. Two separate consignments were identified: one concealed inside VW-branded headlights (the VW importation), and a larger consignment connected to a black BMW (the BMW importation). The first offender was involved in both, while the second offender faced charges arising from the BMW importation only.

The sentencing hearing involved contested facts, evidence from a psychiatrist, affidavits from supporters, corrective services material, and an unsworn statement from the first offender. The parties disputed aspects of the Crown's asserted facts, requiring the court to make findings on the standard of proof applicable to sentencing.

  • What facts could be established beyond reasonable doubt or on the balance of probabilities for sentencing purposes, particularly where the offender disputed the Crown's version?
  • What weight, if any, should be given to unsworn statements or assertions by the offender that were not tested in cross-examination?
  • How should the court approach sentencing for both federal offences (under the Criminal Code 1995 (Cth)) and a concurrent state offence, including structuring aggregate sentences and non-parole periods?
  • What degree of accumulation between sentences was appropriate given two distinct but temporally related acts of importation?
  • How did the subjective circumstances of each offender, including mental health, background, and any claims of duress or coercion, bear on the sentences imposed?

Decision

The court applied the standard principles for fact-finding at sentence: facts adverse to the offender must be established beyond reasonable doubt, while favourable facts need only be established on the balance of probabilities (following R v Olbrich (1999) 199 CLR 270). The court was entitled to form its own view of the facts, provided those findings were not inconsistent with the jury's verdict.

On the VW importation, the court was satisfied beyond reasonable doubt that the first offender had secured the consignee's identity documents under false pretences to clear the goods through customs, and had unpacked the drugs at the Marion Street premises. The BMW importation involved a commercial quantity of methamphetamine, which significantly increased the objective gravity of the offending.

In relation to the first offender's unsworn statement and other assertions not supported by evidence, the court declined to accept claims that were not tested and not corroborated. This approach reflected the principle, drawn from cases including R v Olbrich, that sentencing courts are not required to act on unverified assertions favourable to an offender simply because they are made.

The court imposed partially accumulated sentences to reflect that the two importations were distinct criminal acts, even though they occurred within a relatively short period. For the first offender, the state supply sentence was structured to run concurrently with the federal sentences, with careful attention to backdating and the interaction between the federal and state regimes.

Orders Made

Christopher Obiekie:
- Count 3 (supply prohibited drug, 11.4g methylamphetamine): 3 years imprisonment, from 28 November 2020, expiring 27 November 2023; non-parole period of 2 years from 28 November 2020, expiring 27 November 2022.
- Counts 1 and 2 (importation offences, aggregate): 12 years and 6 months imprisonment, from 27 November 2021, expiring 26 May 2034; non-parole period of 8 years from 27 November 2021, expiring 26 November 2029.
- Earliest parole eligibility: 26 November 2029.

Nicole Garaty:
- Counts 4 and 5 (importation offences, aggregate): 8 years and 6 months imprisonment, from 5 September 2022, expiring 4 March 2031; non-parole period of 4 years 6 months from 5 September 2022, expiring 4 March 2027.
- Earliest parole eligibility: 4 March 2027.

Key Takeaways

  • At sentencing, facts adverse to the offender must be proved beyond reasonable doubt; facts favourable to the offender need only be proved on the balance of probabilities. This asymmetric standard, confirmed in R v Olbrich, shapes how courts resolve disputed facts at the sentencing stage.
  • Unsworn statements and unverified assertions by an offender at sentence carry limited weight, particularly where they are not tested under cross-examination and lack corroboration. The District Court declined to act on such claims in favour of the first offender.
  • Where two distinct acts of importation are charged, some degree of accumulation between sentences is appropriate even if the offences occurred within a relatively compressed timeframe.
  • Structuring sentences that span both federal and state offences requires careful attention to backdating, aggregate periods, and the interaction between the two legislative regimes, including ss 16A and 19AJ of the Crimes Act 1914 (Cth) and the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • The commercial quantity threshold for importation under s 307.1(1) of the Criminal Code 1995 (Cth) carries a maximum of life imprisonment, and the court treated that objective seriousness as a significant factor in the sentence imposed on both offenders.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 307.1(1), 307.3(1)
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2), 17A, 19AJ, 19(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 21A, 53A, 66
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 29
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases:
- R v Olbrich (1999) 199 CLR 270
- R v Storey [1998] 1 VR 359
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
- Hili v R (2010) 242 CLR 52
- Jones v R (2010) 240 CLR 520
- R v Pham [2015] HCA 39
- Johnson v R (2004) 78 ALJR 616
- DPP v De La Rosa (2010) NSWCCA 194
- R v Nguyen; R v Pham (2010) 205 A Crim Report 106
- Clinton v R [2018] NSWCCA 66
- Lloyd v R [2022] NSWCCA 18
- Imbornone v R [2017] NSWCCA 144
- Butters v R [2010] NSWCCA 1
- R v Qutami (2001) 127 A Crim Reports 369
- Parris v R [2013] NSWCCA 5
- Pfitzner v R [2010] NSWCCA 314
- Munro v R [2006] NSWCCA 350
- R v Elfar [2003] NSWCCA 358
- R v Harrison [2001] NSWCCA 79
- R v McGourty [2002] NSWCCA 335