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R v Ajelara

 

[2015] QCA 56

 

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ajelara [2015] QCA 56

PARTIES:

R

v
AJELARA, Nosiru Iyanda
(applicant)

FILE NO/S:

CA No 168 of 2014 SC No 630 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 April 2015

DELIVERED AT:

Brisbane

HEARING DATE:

8 April 2015

JUDGES:

Holmes JA and Atkinson and Applegarth JJ Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

The application for leave to appeal against sentence is refused.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to an attempt to possess a marketable quantity of an unlawfully imported border controlled drug – where a package containing methamphetamine was intercepted by customs – where the applicant collected the package during a controlled operation by the police – where the applicant has a prior conviction for a serious drug offence – where the applicant’s family would suffer hardship due to his imprisonment – where the applicant was sentenced to five years’ imprisonment with a non-parole period of two and a half years – whether the sentence was manifestly excessive

Crimes Act 1914 (Cth), s 16A(2)(p) Criminal Code (Cth), s 11.1, s 307.6(1)

Omorogbe v R (2013) 234 A Crim R 556; [2013] NSWCCA 201, considered R v Calis [2013] QCA 165, citedR v Huston; ex parte Cth DPP; R v Fox; ex parte Cth DPP; R v Henke; ex parte Cth DPP (2011) 219 A Crim R 209; [2011] QCA 350, citedR v Oprea [2009] QCA 184, citedR v Taru [2002] NSWCCA 391, citedR v Zerafa [2013] NSWCCA 222, cited

COUNSEL:

The applicant appeared on his own behalf N V Weston for the respondent

SOLICITORS:

The applicant appeared on his own behalf Director of Public Prosecutions (Commonwealth) for the respondent

[1] HOLMES JA:  I agree with the reasons of Applegarth J and the order he proposes.

[2] ATKINSON J:  I have read the reasons of Applegarth J.  I agree that, for those reasons, the application should be refused.

[3] APPLEGARTH J:  The applicant pleaded guilty to a charge that on 3 April 2013 he attempted to possess a marketable quantity of an unlawfully imported border controlled drug, namely methamphetamine.  On 11 June 2014 he was sentenced to five years’ imprisonment, with a non-parole period of two and a half years.  He applies for leave to appeal against the sentence on the ground that it was, in the circumstances, manifestly excessive.

The offence

[4] On 23 March 2013 a package that had been sent from India was intercepted by customs officers in Sydney.  The package was addressed to a Daniel Wilson of 5 Augustus Street, Corinda, Queensland, and there was a mobile telephone number given as his contact number.  The package contained a metal cog, and inside the cog was methamphetamine powder which weighed 297.6 grams.  The calculated weight of pure methamphetamine was 108.5 grams, based on a purity of 36.6 per cent.

[5] Australian Federal Police extracted the powder and conducted a controlled operation.  An attempted delivery to 5 Augustus Street on 2 April 2013 was unsuccessful.  The contact number was called and a message was left about the delivery.  Later that evening, a male caller contacted the courier company and asked for the parcel to be delivered the following day, and on the morning of 3 April 2013 there was a further phone call to the courier company requesting that it be delivered to 1 Augustus Street, Corinda.  The calls were made from a mobile phone that was found in the applicant’s possession when he was arrested.

[6] The residence at 1 Augustus Street, Corinda was occupied by an acquaintance of the applicant.  The applicant had arrived there, unannounced, around 28 March and had stayed for a few days before returning to Sydney.  On 3 April 2013 the applicant flew from Sydney to Brisbane and again surprised his acquaintance by his presence.  A mobile phone that was later found in the applicant’s possession was used to track the progress of the parcel.

[7] The parcel was delivered to 1 Augustus Street, Corinda at around midday on 3 April 2013 by an undercover officer.  The applicant identified himself as being Daniel Wilson, but when asked to produce identification he showed his driver’s licence which recorded his actual name and correct address.

[8] The applicant and his associate left the house and were intercepted by Australian Federal Police soon afterwards.  The applicant had three mobile telephones on his person.  One had the number which had been used to redirect the delivery.  Another had the number that was given as being the consignee’s number.  It had also been used to monitor the progress of the parcel.  The applicant declined to be interviewed that day.  He later told police that he had been approached by someone calling himself Daniel Wilson in Sydney who provided the mobile phone and paid for the applicant to fly to Brisbane that day to collect the parcel.  The applicant told police that Wilson had told him there were drugs in the parcel, which weighed about 90 grams, but did not specify what type of drugs they were.

[9] The applicant had only booked a one way ticket on 3 April 2013.  It may be that he expected to meet the person he thought to be named Daniel Wilson in Brisbane and deliver the drugs to him.

The applicant’s circumstances

[10] The applicant was born in 1974 and was aged 38 at the time of the offence.  He was born in the Yoruba region of Nigeria.  His parents died when he was aged ten and he was raised by other family members.  He operated a store in Nigeria.

[11] In around 2005 he became acquainted with persons involved in the drug trade, and in return for a promise of financial reward and assistance with a visa, he agreed to act as a “drug mule”.  He flew to London where authorities found 100 pellets of cocaine secreted on his person, which had a total weight of 360 grams.  He pleaded guilty and was sentenced to five years’ imprisonment.  After serving about two years he was deported to Nigeria.  His religion permitted him to have more than one wife.  One wife and a young child were kidnapped as a result of sectarian violence.  The applicant came to Australia in 2009.  He now has six children in Australia, his wife having given birth to twins in November 2014.

The sentence

[12] The applicant, who was self-represented in this application, suggests in his written submissions that the charge against him had been “upgraded” to one of importation.  That is not right: the indictment that was presented on 1 November 2013 was one of attempting to possess a marketable quantity of unlawfully imported border controlled drug, contrary to ss 11.1 and 307.6(1) of the Criminal Code (Cth).

[13] The matter was set down for trial, but late disclosure of important evidence shortly before the trial in connection with the applicant’s use of the mobile phones led to a guilty plea being entered.  Counsel for the Crown and defence counsel both submitted that the decision of the New South Wales Court of Criminal Appeal in Omorogbe v R[1] was the most comparable case.

[14] Defence counsel pointed to the fact that there was no suggestion that the applicant organised the importation.  Reliance was placed upon the fact that he co-operated by speaking to investigators at the watch-house and, after late disclosure of certain matters, instructed his lawyers to enter a plea.  Reference was made to the significant role which the applicant played in the upbringing of his children, some of whom attended school and were performing well.

[15] Defence counsel accepted that the matter of Omorogbe was comparable as involving a defendant who collected a parcel, but that the applicant, unlike Mr Omorogbe, had a relevant previous conviction.  Defence counsel submitted that the bottom of the range would be four years and that a five year head sentence was the more appropriate sentence in the circumstances, given the applicant’s previous conviction.  A non-parole period of two and a half years, less the time he had spent in custody, was submitted to be appropriate.

[16] The learned sentencing judge referred to the circumstances of the offending, relevant authorities and principles, the applicant’s personal circumstances and those of his family.  The sentence proceeded on the basis that the applicant was not drug-addicted and had involved himself for personal gain.  He was sentenced on the basis that he was “very low in the hierarchy of the transaction”.  His role was to collect the parcel and to deliver it.

The applicant’s submissions

[17] The applicant articulated his concern for his family, and that his wife and children require his support.  His wife experienced anxiety and depression in 2014 and difficulties with her pregnancy.  She is said to be experiencing a very hard time.  The applicant wishes to be reunited with his children so that he can support them financially, and with their education and sport.

[18] The applicant seeks a reduction in his sentence because of what he describes as the “never ending stress and constant worry” that he has about his wife’s depression and his children’s changed circumstances due to his imprisonment.

Was the sentence manifestly excessive in the circumstances?

[19] The applicant does not contest the respondent’s submission that Omorogbe is a comparable case.  However, the applicant, unlike the defendant in that case, has a prior conviction for a serious drug offence.  Mr Omorogbe was sentenced originally to five years’ imprisonment, including a non-parole period of three years in respect of the attempted possession of a marketable quantity (106.4 grams pure) of cocaine.  He attended a newsagency to collect a package which had been intercepted by police.  He was characterised as a “collector”.  Like the applicant, he had a tragic upbringing in Nigeria.  He came to Australia in order to improve the life of his wife and children who remained in Nigeria.  In an interview with police, Mr Omorogbe stated that he had attended the newsagency on a previous occasion, but did not admit that he knew or believed the package on that occasion contained illegal drugs.

[20] The New South Wales Court of Criminal Appeal, by majority, ruled that the sentencing judge was not entitled to conclude that the evidence of the prior collection reflected adversely on Mr Omorogbe.  Mr Omorogbe was re-sentenced on the basis that his was an isolated offence, and significant weight was given to the fact that he was in his fifties without a previous criminal conviction of any kind.  He had pleaded guilty at the earliest opportunity, expressed his contrition and was found to be unlikely to re-offend.  He was re-sentenced to imprisonment for four years with a non-parole period of two years and six months.  Latham J considered comparable cases of attempts to possess a marketable quantity of a prohibited import.  Only one case (R v Taru [2002] NSWCCA 391) involved a head sentence of less than five years.

[21] Few comparable cases involving this offence concern the drug methamphetamine.  However, guidance can be obtained from comparable cases of attempts to possess other drugs, such as cocaine, provided account is taken of the quantity that is defined to constitute a marketable quantity.  The applicant cited decisions involving different offences and cases which were not truly comparable to this one.

[22] The learned sentencing judge had appropriate regard to the applicant’s limited role in the matter.  However, the authorities recognise that persons who play a limited role by collecting and delivering packages nevertheless play a necessary part in the importation of border controlled drugs.[2]

[23] The applicant’s family will suffer hardship because of his imprisonment.  However, hardship to family members “cannot overwhelm considerations such as the need for deterrence, denunciation and punishment.”[3]

[24] The learned sentencing judge gave consideration to relevant circumstances and comparable cases.  The applicant’s age, the fact that he did not commit the offence in order to feed a drug addiction, the need for personal deterrence in the light of his previous conviction for importing drugs and the need for general deterrence all justified the sentence which was imposed.  Appropriate regard was had to the applicant’s circumstances, including the circumstances of his wife and children.  The hardship which the applicant’s family probably will experience as a result of the sentence that the judge imposed cannot be described as “exceptional” or “extreme” as those terms are explained in the cases.[4]  A comparison with Omorogbe supported the imposition of a sentence of five years in this case.

[25] The sentence that was imposed was not excessive in all the circumstances.  I would order that the application for leave to appeal against sentence be refused.

Footnotes

[1] (2013) 234 A Crim R 556.

[2] R v Oprea [2009] QCA 184 at [29].

[3] R v Calis [2013] QCA 165 at [47]. As to the terms of s 16A(2)(p) of the Crimes Act 1914 (Cth) and its interpretation see R v Huston ex parte Cth DPP (2011) 219 A Crim R 209 at 222 – 224 [46] – [51]; R v Zerafa [2013] NSWCCA 222 at [72] – [78], [93].

[4] Ibid.

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Editorial Notes

  • Published Case Name:

    R v Ajelara

  • Shortened Case Name:

    R v Ajelara

  • MNC:

    [2015] QCA 56

  • Court:

    QCA

  • Judge(s):

    Holmes JA, Atkinson J, Applegarth J

  • Date:

    17 Apr 2015

Litigation History

Event Citation or File Date Notes
Primary Judgment - - Criminal
Appeal Determined (QCA) [2015] QCA 56 17 Apr 2015 -

Appeal Status

{solid} Appeal Determined (QCA)