Kazeem OKANDEJI v R [2012] NSWCCA 30

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kazeem OKANDEJI v R [2012] NSWCCA 30 Hearing dates: 7 February 2012 Decision date: 08 March 2012 Before: McClellan CJ at CL at [1] Johnson J at [2] Rothman J at [3] Decision: Leave to extend time for the filing of an application for leave to appeal refused Catchwords: CRIMINAL LAW - Appeal - Leave to file out of time - discretionary issues - no arguable case - leave to extend time refused Legislation Cited: Bail Act 1978 Criminal Code 1995 (Cth) Customs Act 1901 (Cth) Cases Cited: R v Nguyen; R v Pham [2010] NSWCCA 238 Category: Principal judgment Parties: Mr Kazeem Okandeji (applicant) Regina (respondent) Representation: Self represented applicant L. Crowley (for the respondent) Self represented applicant Commonwealth Director of Public Prosecutions (for the respondent) File Number(s): 2004/16310 Decision under appeal Date of Decision: 2006-09-20 00:00:00 Before: Williams J

Judgment 1McClellan CJ at CL : I agree with Rothman J 2Johnson J : I agree with Rothman J 3Rothman J : Kazeem Okandeji, hereinafter the applicant, seeks leave to appeal the sentence imposed upon him in the District Court. The sentencing judge imposed a sentence on the applicant, being a term of imprisonment of 12 years with a non-parole period of eight years. The applicant had been convicted, by a jury, of one count of attempting to obtain possession of a prohibited import, namely cocaine, being not less than a trafficable quantity, contrary to s 233B(1)(c) of the Customs Act 1901 (Cth) and s 11.1(1) of the Criminal Code 1995 (Cth). 4The sentence was imposed on 20 September 2006 and commenced to run from 10 August 2004, from which time the applicant has been imprisoned. The non-parole period therefore expires on 9 August 2012. 5The sentencing judge also imposed a sentence on the applicant for failing to appear in accordance with his bail undertaking, contrary to s 51(1) of the Bail Act 1978. This sentence has been completed. The applicant did not file a notice of application for leave to appeal (nor a notice of application for an extension of time for leave to appeal) until 29 April 2011.

Facts 6On 23 September 2003, the Australian Customs Service intercepted a package, containing a wall painting, which had arrived from Sao Paolo, Brazil and was addressed to a person called Greg Adam. The Australian Federal Police (AFP) seized the consignment. 7On 30 September 2003, the package was deconstructed and revealed a wall painting, which concealed 774.3 grams of cocaine, that had been secreted in two wooden poles located on opposite ends of the painting. The package was reconstructed and the cocaine was substituted with an inert substance. 8On 1 October 2003, at 9.45am, an AFP member posing as a DHL Customer Service Representative received a call from a person who identified himself as 'Greg Adam'. In cross-examination, the applicant stated that he had called DHL and when asked if he was 'Greg Adams' [sic], he responded 'Yes' (i.e. it was the applicant who made the telephone call). The applicant quoted the airway bill number and inquired about the delivery of the consignment. He was informed that delivery would take place between 10.00am and 1.00pm on 1 October 2003 at an address in Minto. 9At 10.52am, on that day, the applicant was standing on the corner of Ohlfsen Road and Guernsey Avenue, approximately 200 metres from the initial delivery address. 10At 11.46am, the applicant telephoned DHL from a public telephone located at Pembroke Road, Minto to inquire about the whereabouts of the package. The applicant provided a mobile phone number as a point of contact. 11At 12.04pm, DHL telephoned the mobile phone number provided to confirm delivery of the package. The applicant answered and identified himself as Greg Adam. The applicant asked DHL to deliver the package to another address in Minto - premises recently vacated by his friend, Jude Agboma. 12Immediately prior to delivery, the applicant had been loitering near the anticipated delivery address. 13At 12.42pm, the DHL delivery van arrived at the second address in Minto. A Federal Agent, disguised as a DHL delivery driver, delivered the consignment. Jude Agboma approached the delivery van and stated that he was Greg Adam's friend. He initially signed the paperwork as 'Greg Adam', but when questioned, changed this to J. Shaw Agboma. 14As soon as the delivery van had left, the applicant approached Agboma. Agboma entered the premises at the second address in Minto and the applicant followed shortly afterward. 15Soon after that, Agboma and the applicant left the premises. The applicant was carrying the wall painting and Agboma was carrying the remnants of the opened package. 16The applicant and Agboma walked to a nearby park where they were intercepted by police and arrested. The applicant was carrying three mobile phones on him - each of which were subscribed with false name and address details. 17The consignment's airway bill number was listed under DHL in the phone book section of one of the mobile phones. The previously mentioned mobile phone number related to a mobile telephone that the applicant had in his possession at the time of the arrest. 18The potential street value of the cocaine seized was estimated at $884,914.29 based on 774.3 grams of cocaine being sold at an average street level purity of 35 percent

Grounds of Appeal As Notified 19The applicant, who is self represented, relied upon two grounds of appeal, being: a failure of the sentencing judge to consider that it was the applicant's first offence; and, that the sentencing judge erred in classifying the applicant as the principal in the offence. 20The first ground of appeal has no basis. The sentencing judge noted and considered all of the relevant subjective factors applicable to the applicant, including that this was a first offence. His Honour said, at page 4 of the Remarks on Sentence: "Mr Okandeji has no criminal convictions. He is aged 28." 21His Honour expressly took into account the applicant's personal circumstances. Further, the applicant's prior good character and lack of criminal activity, in this case, would have little impact, given both the nature of this offence and the sentence imposed: see R v Nguyen; R v Pham [2010] NSWCCA 238 at [72(j)], per Johnson J. 22As to the second ground of appeal, there is abundant evidence, plainly accepted by the jury, and expressly accepted by the sentencing judge, that Mr Greg Adam was a pseudonym used by the applicant. That evidence includes, as summarised above, the use of that pseudonym by the applicant on a number of occasions and the possession of a mobile telephone in the name of Greg Adam. 23Obviously, there would have been other parties to this offence at the location from where the parcel was sent. However, with regard to those persons who were connected with the attempted importation in Australia, the applicant was the principal. His Honour, the sentencing judge, found as a matter of fact: "This is not a case of Mr Okandeji being able to be regarded as some sort of courier. In regard to the circumstances outlined he could only really be categorised as a principal of obtaining the drug for the purposes of on-selling and making a profit. In that regard I do not accept, nor I am sure did the jury, that a person by the name of Greg Adams was involved in the importation." 24The foregoing finding of fact and the assessment of the role of the applicant were plainly open to the sentencing judge and no valid criticism of the findings is available. Even if this Court were deciding the questions of fact afresh, without regard to the findings of fact that were open to the sentencing judge and made by him, I would be inclined to take the same views as his Honour below. 25The second ground of appeal has no factual basis on the material before this Court.

Leave 26Even taking into account that the applicant is representing himself and does not, therefore, have the benefit of legal assistance, the delay in filing the application for leave to appeal and the application for an extension of the time in which to apply for leave is manifest. Leave to appeal was filed four and a half years after the sentence was imposed. 27Initially, the applicant relied upon the refusal of his Legal Aid application. In a written submission provided to the Court and counsel for the Crown, for the first time, on the morning of the hearing, other grounds were raised. Those grounds included family problems in Africa where both the applicant's mother and brother had passed away as a result of which the applicant did not consider it would be in his "best interest to go ahead with the appeal at that particular time period, as I [the applicant] was not on [sic] the right frame of mind emotionally and physically." 28The further written submission, apart from fleetingly dealing with the extension of time, also sought to raise a number of other grounds of appeal. These other grounds of appeal included: the wrongful admission of evidence as to money transfer from the applicant to persons in Brazil, to which no objection was taken at trial; a restatement that the sentencing judge was in error in treating the applicant as the principal; a failure by the sentencing judge to take into account that the applicant "was capable of learning and profiting from [his] mistakes, if given the chance" and the applicant's "fragile psychological state and financial situation"; the failure to take account of the applicant's youth; and the failure to take account, in sentencing, that an attempt is objectively less serious than the actual commission of the offence. 29Each of these additional grounds, when investigated, either has no basis in fact or was appropriately taken into account by the sentencing judge and, therefore, cannot form the basis of an arguable ground of appeal. 30The applicant has served seven and a half years of the sentence imposed upon him and has six months of his non-parole period remaining. I do not underestimate the remaining time in prison. From none of the submissions advanced could one conclude that the sentence is inappropriate or that the sentencing judge was in error and there has been no adequate explanation of the delay in filing an appeal. The grounds are not arguable. 31I propose that leave to extend time for the filing of the application for leave to appeal be refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2012