New South Wales District Court CITATION: R v Nikolovska, Anne [2009] NSWDC 291 HEARING DATE(S): 12/06/2009 JUDGMENT DATE: 25 September 2009 JURISDICTION: Criminal JUDGMENT OF: Nicholson SC DCJ Convicted. DECISION: Sentence to a non-parole period of 3 years and 9 months. Balance of term of 2 years and 3 months. HH order the release of the offender on the 9th September 2011. Pursuant to Section 52 of the Crime (Sentencing Procedure) Act, HH order the offender be supervised by Probation and Parole. CATCHWORDS: Criminal Law - Sentence - Commonwealth offence - importantion of border controlled drug - cocian - 1431gms - role facilitator assisting importer - security access to internationally imported freight - 49 year old female - guilty plea. LEGISLATION CITED: Criminal Code Act 1995 (Cwth) Crimes Act 1914 (Cwlth) Gladue v The Queen [1999] 1SCR 688 [80] CASES CITED: R v Cuthbert [1967] 2 NSWR 329 R v Rushby [1977] NSWLR 597 R v Hayes [1984] 1 NSWLR 740 PARTIES: Regina (Commonwealth) Anne Nikolovska FILE NUMBER(S): 2008/00026393 COUNSEL: Crown: M England Defence: D Timmins Sentence subject to Crown Appeal JUDGMENT 1. Anne Nikolovska arrived in Australia with her parents in 1965 from Macedonia. As an adult she has been working at Qantas for 27 years in the Sydney Distribution Centre at Mascot. She was given security access to Qantas premises. It would appear that her work was centred at the Qantas Supply Facility in the Sydney Distribution Centre. 2. For some time before December 10, 2007 Federal Police were monitoring phone call activities of one, W.(name withheld) and Anne Nikolovska. As early as 18 October 2007, Federal Police were listening to coded conversations that could only have been about an unauthorised importation of a border control drug. 3. On 6 December 2007, Customs interrupted a DHL freight consignment containing oil filters. Those filters contained 1.96 kilograms of cocaine admixture. On 10 December 2007, Federal Police separately arrested Anne Nikolovska and W (name withheld). 4. Today Anne Nikolovska is to be held accountable for her involvement in the importation of a net 1431 grams of pure cocaine. As sentencing Judge it falls to me to resolve a number of competing tensions as I strive to determine the appropriate sentence for this offence before this court, committed by this offender, with the potential of harming a number of victims in this community, Gladue v The Queen [1999] 1SCR 688 [80]. My initial task requires an assessment of the objective criminality of the offence before the court. I will also need to have regard to matters personal to her. These are called subjective matters. The starting point for the assessments requires me to make findings of fact from the evidence before the court relating to both the offence and the offender. 5. An unusual feature of this case is what seems to me a delay between the offending, arrest and sentencing disposition. What, if any, impact that delay has will need to be assessed. The offender's rehabilitation prospects will have to be assessed, even if looking through a dark darkly. 6. This is an offence against the laws of the Commonwealth. S16A of the Crimes Act 1914 (Cwlth) requires a sentencing court to take into account a number of specific matters. The 16A matters have the advantage of providing a useful checklist of matters relevant to sentencing. Where a term of imprisonment greater than three years is imposed, as indeed, one must be in this case, the length of the non-parole period must be determined. 7. What weight needs to be given to all of the matters against the imperative that all sentencing should have, as its primary focus, the protection of the community will also need to be determined. See R v Cuthbert [1967] 2 NSWR 329, R v Rushby [1977] 1 NSWLR 597 and R v Hayes [1984] 1 NSWLR 740. Facts 8. During October to December 10, Ms Nikolovska had several phone calls, in coded language, about the potential and actual importation of goods into Australia. W (name withheld) had previously worked at Qantas and knew Ms Nikolovska through this connection. 9. The defence position appears to be the offender did not know the proposed contraband importation was an alleged drug, but rather she thought it may be diamonds. Secondly, the defence raise an issue, short of duress but claiming pressure coming from her co-offender for her to participate. Her case is that her role was limited to being a delivery person once the packet had arrived at the Qantas Supply Facility. 10. The Crown case is that she is more of a facilitator within the Transport System Bureaucracy/Customs Holding facility, which also included, in its final stages, collection of the contraband and delivery to W (name withheld) or his associates outside the Mascot facility. 11. The phone intercepts, tendered before me, make clear the offender was being asked by W (name withheld) to do more than to collect contrabands and deliver it (see the phone conversations at 12.16pm on 22 October 2007, phone conversations of 31 October 2007, for examples). She was passing information to him, (conversations 4.30pm, 18 October 2007, 5.30pm, 22 October 2007, and indeed, the calls taking place on 10 December 2007). There are calls consistent with her monitoring the likely arrival of the contraband – (see, for example, phone conversation 22 October 2007 at 5.31pm). 12. The co-offender left Australia to arrange for importation of cocaine. He travelled to the Cote D'Ivorie in Africa, where he stayed for two weeks; returning via Bangkok on 7 December 2007. The cocaine arrived the day before he did. It was couriered by DHL International. It was addressed to one Anne Downing, Qantas Airways, SDC, 363 Coward Street, Mascot 2020. Ms Downey had been an employee of Qantas who had retired three months prior to the importation. 13. I am satisfied SDC stands for the Sydney Distribution Centre. There was a phone number given, as part of the address, but there is no evidence as to whose phone, if anyone's, it was. 14. By 10 December, W (name withheld) must have been concerned as to the progress the cocaine had made in its international journey. He was urging the offender to check and let him know. She agreed to send the numbers that she believed he needed to retrieve the package. She texted him the DHL Airway bill numbers that in the normal course of events would have been required to retrieve or follow the packet. It turned out that that they were not the numbers W (name withheld) was after. 15. She then forwarded to him some Westpac Bank account details. The significance of those accounts does not seem to me to be disclosed other than it was, or it had some connection with the offender to the extent that there was a document with numbers on it relating to that account found at her home. 16. W (name withheld) was clearly concerned as to the location of the drugs. At 11.45am, 10 December, he asked the offender, "Can't you find out ... I don't want to go on the Internet ... can you check for me?" 17. Perhaps as a consequence of that call at 12.40pm, the AFP delivered the packet to the SDC in Mascot pursuant to a registered controlled operation. The packet ended up on someone else's desk. Within five minutes of its arrival the offender rang to warn W (name withheld), "We're in strife because Louise has got it". W (name withheld) sought to persuade the offender to retrieve it from Louise's desk. The offender was in a dilemma. She could not retrieve the packet because Louise was at her desk but [Louise] had not yet dealt with it. It is to be remembered the packet was addressed to a former Qantas employee and not to the offender. 18. The offender told W (name withheld), "That she [Louise] is checking it and when she checks it she is going to go off her brain." The offender's first reaction was to go home and return early in the morning, presumably when Louise would not be around, to see if the packet was still there. W (name withheld) wanted to come to the SDC and collect the packet from the offender but apparently thought better of it. 19. After an initial refusal, because there was a lot of people present, the offender told W )name withheld) she would try to retrieve the packet. W (name withheld) sent an SMS message to the offender saying, "My kid's life on your hands". That message was designed to pressure the offender into retrieving the packet. Forty minutes later Nikolovska rang W (name withheld) to warn him that Louise had left and gone somewhere else with the boss. The offender said, "I'm not sure what's going on ...". That call constituted a warning to W (name withheld). 20. A further forty minutes later the offender rang and told W (name withheld) not to come, that she would wait to see if Louise returned. She was asked by W (name withheld), "But the box is still there, is it?" She said, "Yes". She was asked to take the box and go. She was arrested at 4.10pm. 21. In an interview with police, she told police she was to receive $10,000 for her participation in the importation, and that she believed the contraband was diamonds. As to the last proposition, I am satisfied she well knew the importation was focused upon drugs and not diamonds and well knew that before W (name withheld) left for Africa. 22. On 24 October, during a conversation [with W (name withheld)] initiated by her, she was asked to check on flights to Johannesburg and its connection to South African Airlines. W's (name withheld) request indicates, as I understand it, the desire to travel beyond Johannesburg to some destination via a connection with South African Airlines going from Johannesburg. That is, going away from the diamond capital. Secondly, if diamonds were to be the subject of the importation, her one line joke to W (name withheld), "Get me a diamond if you're going to Johannesburg", was inappropriate to say the least. 23. In her interview she claims she said to W (name withheld), "I hope they are not drugs", and he replied, "I think they are diamonds but you don't have to know". She told the AFP in her interview, "I would have suspected something like that [drugs]. For him to be that aggro and that demanding it would have to be something big" (Q and A 184 to 185). 24. In a leading question that appears to me to be completely misstating her admissions thus far, she was asked, "You told me you knew it was drugs? Why did you know it was drugs he was sending". (On my reading of the interview thus far the only thing she had conceded was that she suspected it may be drugs). Nonetheless, the offender referred to an earlier drug importation (a kilo) by an associate of W's (name withheld) and said, "That's when I realised its drugs not diamonds". (Q and A 424 to 429). 25. When police searched the offender's premises four days after her arrest, they found two documents: one a certificate of conformity for Ozone Converter and another a certificate of compliance identical to certificates that accompanied the freight consignment of oil filters addressed to Anne Downing. There was also a handwritten record in the offender's home of the DHL Airway bill number that the offender had SMS texted to W (name withheld). 26. I am satisfied by what is disclosed in the telephone calls between the offender and W (name withheld), and the items found at her home, and the admissions made in the record of interview, that the offender was a facilitator assisting W (name withheld) in choosing flight plans to Africa; in advising W (name withheld) from time to time; in assisting monitoring the progress of the contraband once it arrived in Australia; and was the intended destination for the cocaine at the Qantas SDC. It was then to be her task to deliver the package to W (name withheld) or his associates outside the facility at Mascot. She was also expected to, and did warn W (name withheld) of, any difficulties or dangers of detection as they may occur. Objective Criminality 27. From the facts as he finds them to be, the sentencing Judge is required to assess the objective criminality of the offences as an essential step in assessing the seriousness of the criminal behaviour of the offender. That is done by comparing objectively the criminality exhibited in the instant offence with criminality of offences of a similar kind. It is, in that way, that the criminality of these offences can be evaluated. Objective criminality has an important impact, in fact, the most important impact, on the overall sentencing outcome. 28. The importation of illicit drugs should be understood as an offence against the public health. My understanding is all cocaine in Australia arrives here as a consequence of importation. Courts have long recognised that in assessing the objective seriousness of a drug offence, it is necessary to have regard to the drugs potential for harm. I am satisfied this cocaine was imported with a view to it being distributed on the illegal drug market. 29. Drug dealing is harmful to the community by those who purchase drugs and its indirect impact upon the community at large. Drug distribution is anti-social because it is a crime against public health. The importation of illegal drugs, not otherwise available, is a first step in the illegal distribution within Australia. 30. For some, if not for most, drugs such as those I am concerned with here, cocaine, can be addictive. Drugs can be destructive of health, contributing to mental health problems and/or aggression. Drugs can lead to people being drug addicts, that is, human beings whose capacity to function and feel human is smothered to a greater or lesser extent by addiction and other effects of drugs. That is the real essence of the criminal harm done by drug suppliers. That is in a greater or lesser way they are disenabling other human beings through drug dealing. It is in that sense then supplying drugs undermines public health. 31. The weight of pure cocaine amounted to 1.43 kilograms. That has not been translated for me into the number of potential street deals but I am entitled to come to a view that that number of street deals would have been significant, probably rating in the hundreds. 32. The marketable quantity of cocaine is set at two grams. The commercial quantity is set at two kilos. This quantity seized amounts to more than seventy per cent of the commercial quantity where a higher maximum penalty applies. Clearly, the actual quantity of pure cocaine increases its potential for harm to health and, therefore, the criminality associated with importation. 33. I am satisfied this offender is not the actual importer. However, the importer has taken advantage of the offender's strategic placement at the Qantas SDC to secure the importation. I am satisfied, on the evidence before me, this offender knowing of her strategic placement, was willing to participate in the offence. 34. She claims pressure to act. The only evidence I have observed of pressure was a remark by W (name withheld) that his child's life depended on her. By that time the importation was completed and both W (name withheld) and the offender were trying to salvage what they regarded as a critical situation. In fairness, Nikolovska's participation in the salvage exercise was more reluctant than W's (name withheld). She needed to be urged on but was looking for ways, nonetheless, to secure the box. 35. I have already defined the offender's role as a strategically placed facilitator intended to be the receiver and meant to be the deliverer of the importation to W (name withheld) or his associates outside the SDC. 36. There can be, no doubt, the offender well realised her importance to W (name withheld) centred upon her strategic position of employment. She had security access to Qantas premises. There is, no doubt, the offender well understood the responsibility of her position on the other side of the Custom's barrier, and the trust reposed in her by her employer. Her agreement to be involved in this importation constitutes a breach of trust that undermined the very function of border security against illegal importation her employer was required to maintain. That conduct constitutes an aggravation of her criminality. 37. The importation appears to have been fermenting for, at least, two months before its completion. This is not, as the Crown submitted, a momentary aberration but a planned and well thought through offence requiring ongoing conduct and care over two or more months. The fact is the cocaine never made it past the Customs Hall. There was no actual injury, loss or damage or harm to health resulting from this offence, although I have spoken already of its potential for damage. 38. There is, no doubt, the offender was acting for quick profit. On her account she was to be given $10,000. The Crown does not dispute this figure. No doubt, the offender thought for two or so months work $10,000 represented a quick and easy result. It clearly establishes she was acting for financial gain. 39. I am not satisfied, beyond reasonable doubt, although I accept it is probable that the offender knew the imported drug was to be cocaine. I identify the nature of her intent as one of recklessness. 40. The Crown submitted the fact that the offender acted in concert with W (name withheld) made her criminality higher than if she had acted alone. That is a submission with which I do not agree. If she had acted alone she would be the importer rather than the facilitator. In my view, the importer bears a greater criminal liability than the facilitator. 41. The objective circumstances of the offence are such as to call for a substantial full-time custodial sentence. Subjective Matters 42. Anne Nikolovska is nearly forty-nine years old. Formerly married, she is now single. She has two children but is distanced from her son aged 30. Her parents migrated from Macedonia when she was five. She formed a relationship with she was thirteen and married aged fourteen and two months. The coupled were divorced in 1987 when NIkolovska must have been about 27. Both children are now adults. The marriage was marred by domestic violence. 43. Her daughter, aged 24, suffers from sciolists, and Ms Nikolovska has borrowed money to support her daughter's treatment. Her daughter has only visited her mother on one occasion, at least, when the matter was last before me. Education, Employment and Skills 44. Ms Nikolovska was educated to Year 8. She has been employed for 27 years as a component control analyst with Qantas. After her arrest that position was terminated. It is to her credit that given her education base she had graduated to the level of competence and skill as to maintain employment for 27 years. General Health 45. Ms Nikolovska complains of headaches resulting from a motor vehicle accident when she was aged five. She is an overweight woman but otherwise appears to be in reasonable health. Mental Health Issues 46. Ms Nikolovska is being treated by Justice Health for long standing low grade depression. Dr Old Tree- Clarke, Psychiatrist, prepared a report at the request of the defence. He notes she has previously seen a psychologist and a psychiatrist. He took a history from her being upset all the time, but says she shows no signs of psychosis. He diagnosed a dependent personality disorder as well as chronic depression. He argued her relationship with W (Name withheld) fitted the pattern of dependency. He also suggested it was related to her gambling. I should note the report does not demonstrate the extent to which the dependent personality disorder contributed to her willing participation in the importation. The onus is upon the defence to establish this. I regard it as a factor to be taken into account but certainly not a determinative factor causing her participation. Gambling 47. Ms Nikolovska reported to Probation and Parole she had a habit of consuming alcohol at a local club and gambling on poker machines. Whether that gambling is problematic is not really established in the evidence nor is there any link made between her gambling and the offer of $10,000. While I am aware that most addicted gamblers have depression, the presence of depression does not necessarily predicate problem gambling. The evidence does not establish whether this is a rehabilitation issue. I have treated it as a neutral. Plea of Guilty 48. Ms Nikolovska pleaded guilty before the Local Court in October of 2008, ten months after she was arrested. The brief of evidence has been served in full but the plea was entered before any committal hearing. That plea by Ms Nikolovska must be regarded as advancing the cause of the administration of trust. 49. A guilty plea must be recognised as a significant contribution by her to advancing the administration of justice firstly and fore mostly because the interests of administration of criminal justice are served through the public acknowledgement by an offender of guilt. Pleas of guilt by offenders sustain the community's confidence in the administration of criminal justice by maintaining the confidence of the community and the investigation of crime, and the community's expectation that those guilty of crime will be held accountable for it. 50. The administration of criminal justice is also served because court time, witnesses time, legal expenses and the like are freed so that they can be devoted to other cases. A plea reduces considerably the likelihood of contest in an appeal on the issue of guilt in respect of the importation charge. All of these are important factors insofar as the administration of criminal justice in her case is concerned. Co-operation with Police 51. Ms Nikolovska participated in a two hour interview with police. In the course of the interview police established many matters that confirmed aspects of their case. On the issues relating to her participation, and level of participation, she was less than frank although by the time the interview was completed she had conceded knowledge that the importation "would be big" and involved drugs. Personal Deterrence 52. I am satisfied the offender's time in custody has been a terrible experience for her, that she is suffering reactive depression, in part, because of her incarceration. In those circumstances, I am satisfied the sentence under consideration, which will require further detention, will be all the personal deterrence required. Need for Punishment 53. In reviewing the objective facts I sought to establish the high level of criminal conduct pursued by Ms Nikolovska. I indicated, when dealing with the topic, that a substantial custodial period was called for, notwithstanding that imprisonment is the ultimate form of sanction. Character and Criminal History 54. Ms Nikolovska is nearly forty-nine. She is a single lady who has, in the past, shown a strong worth ethic. She has been generous to her daughter in that she went into debt to assist in her daughter's medical expenses. 55. Her criminal history is confined to one court appearance in 1988 in respect of one count and twenty-three on a schedule of obtaining financial advantage by false statements. The total compensation ordered was $2739. She was given a 558 recognisance for five years, which she apparently kept. That does not suggest the offence could, in any way, be described as a major one. Insofar as this offence is concerned, her counsel submitted that I accept she is unlikely to re-offend. 56. There is only one matter on her criminal history and it is not large. This offence is of a different kind. The other offence is now twenty-one years old. 57. She has lost her position, which placed her strategically for this offence. She is unlikely to find work in the same industry again. Nonetheless, her long past work history and her skills acquired in past employment. Her prospects of finding employment and notwithstanding her age, her rehabilitation prospects must be considered as fair. Impact of Sentence on Important Third Parties 58. As the evidence stands, the only family supports, who are likely to be impacted upon by her incarceration are her mother and daughter. At the time of arrest, she was living with her parents at Brighton-le-Sands since her divorce. I have no evidence as to their income status or what, if any, of her income was made available to her parents. It would appear they have been unable to visit her, although I cannot rule out that the offender may have asked them not to do so because of the emotional stress occasioned by such visits. 59. It is likely the parents will miss the physical and emotional support given to them by their daughter. Equally, Ms Nikolovska's daughter will miss the physical and emotional support of her mother. During the absence of her mother the daughter may also struggle with medical expenses relating to her condition, assuming that there will be some. 60. S 16A (3) of the Crimes Act 1914 requires the court to have regard to the nature and severity of conditions that may be imposed on or applied to Ms Nikolovska under the sentence I am about to impose. I note no evidence has been led by either side on that topic. Dr Old Tree-Clarke was of opinion she was anxious, disordered, tearful, can become panic stricken, over alert and chronically suffering reactive depression. It is likely her mental health issues may make her custodial situation harder than others having no mental health issues. 61. Her age at forty-nine is fifteen years above the mean of thirty-four. Female custody is usually, but not always, in single sex gaols. Her capacity to move freely about prison at such times as she likes will be severely compromised. While her food will be adequately nutritional it will lack variety and the home cooking touch. Most of her movements and outside contacts will be regulated. As I understand it, she will be eligible to graduate to less restrictive custodial regimes as she progresses through her sentence, but on any view, a custodial sentence is difficult and demoralising. Extra Curial Punishment 62. The offender has lost her employment of 27 years and the career path that went with it. The terms of her dismissal are set out in a letter of 4 February 2008. She was paid up to and including the date of the letter and a further month's pay in lieu. Clearly, her position is not being held for her. Nonetheless, I do not regard this as extra curial punishment in the sense that all prisoners, employed at the time of their incarceration, almost inevitably lose their employment. That type of matter normally is instinctively taken into account in respect of those offenders employed at the time of their offending. 63. I have sentenced upon the basis that her superannuation payments are secured and are presently or will be available on her release. Loss of these benefits would amount to extra curial punishment but the evidence is silent on her superannuation. Setting the Sentence 64. I have set out in detail the facts and circumstances of the offence. My assessment of the objective criminality caused me to reach a conclusion in the light of it that the offence was so serious as to call for a substantial full-time term of imprisonment. 65. Generally the subjective features and, in particular, the early plea are favourable. Absent those favourable subjective features, the sentence would be more severe than the sentence I am imposing. 66. The maximum penalty available is 25 years imprisonment, and a very substantial fine, which is really not appropriate in the circumstances of this case. Custody 67. The offender has been in continuous custody since 10 December 2007. Her sentence will be backdated so as to commence from that date. 68. I have had regard to the sentences imposed in five cases and dealt with by the Court of Criminal Appeal, [referred to me by the Crown]. I have also had regard to the statistics provided for this offence on JIR. Both, that is the two together, give me a broad view of the sentencing range, although I note, en passant, the cases referred to by the Crown appear to be in the top 38% of sentencing outcomes. HIS HONOUR: Ms Nikolovska, will you please stand? 69. I convict you of the offence that you between 4.10pm on 7 November 2007 and 4.15pm on 10 December 2007, at Mascot, did import a substance, the substance being a border control drug, namely, cocaine, and the quantity imported being a marketable quantity contrary to subsection 307.2(1) of the Criminal Code (Cth). For that offence you are sentenced to a term or imprisonment of six years to commence on 10 December 2007 and to expire on 9 December 2013. I set a non-parole period of three years and nine months to expire on 9 November 2011. 70. Your parole will be subject to conditions, but frankly I was unable to locate the conditions. Certainly one of them will be to be of good behaviour. Another will probably be to live at a specified address. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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