Regina v Millerat [2005] NSWCCA 142

New South Wales Court of Criminal Appeal

CITATION: Regina v Millerat [2005] NSWCCA 142

HEARING DATE(S): 30 March 2005

JUDGMENT DATE: 18 April 2005

JUDGMENT OF: Grove J at 1; Howie J at 46; Hall J at 47

DECISION: CROWN APPEAL ALLOWED; RESPONDENT RESENTENCED

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - SENTENCE - IMPORTATION OF PROHIBITED DRUG (MDMA) - IN EXCESS OF FOUR TIMES MINIMUM COMMERCIAL QUANTITY - YOUNG FEMALE COURIER - NO PRIOR CONVICTIONS - FOREIGN NATIONAL - OFFENDER ADDICTED TO DRUGS - MANIFEST INADEQUACY OF FIRST INSTANCE SENTENCE

s 16G Crimes Act 1914 LEGISLATION CITED: s 233B(1)(b) Customs Act 1901

R. Benais [1999] NSWCCA 236 R v Bowers 1997 97 A Crim R 461 R v Klein 2001 121 A Crim R 90 CASES CITED: R v Schofield [2003] NSWCCA 3 R v Simon [2003] NSWCCA 147 R v Spillane [1999] NSWCCA 280

PARTIES: Regina v Sarah Millerat

FILE NUMBER(S): CCA 2005/31

D. Staehli (Crown/Applicant) COUNSEL: P. Hamill SC (Respondent)

Commonwealth DPP (Crown/Applicant) SOLICITORS: Hillman Laxon Tobias (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 04/11/1063

LOWER COURT JUDICIAL OFFICER: Dodd DCJ

IN THE COURT OF CRIMINAL APPEAL 2005/31

GROVE J HOWIE J HALL J

18 April 2005 REGINA v SARAH MILLERAT Judgment 1 GROVE J: This is an appeal by the Crown in the right of the Commonwealth asserting that sentence imposed by Dodd DCJ on the respondent at Sydney District Court was inadequate, and seeking increase thereof. 2 The respondent is a French citizen, born 21 January 1979. She entered Australia at Sydney Kingsford Smith Airport on Sunday 13 June 2004, arriving aboard an Austrian Airlines flight which had originated in Vienna. She was travelling on her own French passport. In accordance with routine, she completed an incoming passenger card which included her denial that she was bringing illicit drugs into Australia. At a customs barrier point her baggage was selected for examination. 3 Part of the examination included an ion scan swab being run over her suitcase and this produced a positive result for the prohibited drug cocaine. The respondent initially told customs officers that there was nothing in her suitcase but when the question was repeated she said "cocaine". 4 The respondent's suitcase was deconstructed by Federal police. Cocaine was not found but three packages were discovered secreted in the lining of the suitcase. The content of these packages consisted of approximately 28,750 tablets weighing 4,786.8 grams. Testing established that these tablets were methylenedioxymethamphetamine (MDMA) and laboratory analysis established the nett weight of pure MDMA as 2,025.9 grams. 5 The respondent was charged with a single count of importing a commercial quantity of prohibited drug (MDMA) contrary to s 233B(1)(b) of the Customs Act 1901. Such an offence carries a prescribed maximum penalty of life imprisonment, together with a fine. Upon being supplied with the appropriate prosecution brief the respondent pleaded guilty and adhered to that plea. She was before the District Court for the purpose of sentence and her arraignment upon indictment was a procedural step and did not operate to devalue her early plea of guilty before the magistrate. 6 The respondent had no prior convictions. His Honour imposed a sentence of five years six months imprisonment with a non parole period of two years nine months. 7 The respondent participated in an interview with police on the day of her arrest. At the time she told police how she came to journey to Australia in possession of illicit drugs and of instructions given to her to proceed to a particular hotel at Parramatta and telephone a number with which she had been supplied. Her description of events was substantially included in a statement of facts prepared for the purpose of sentencing proceedings. The respondent gave evidence, as did her father and mother, who travelled from France in order so to do. His Honour also received into evidence a letter addressed to him from the respondent, which she had written whilst in custody. 8 The respondent's father is French by nationality and her mother was described as Yugoslav. When the respondent was aged about three years her parents divorced and she remained with her mother who subsequently entered into a long term relationship with a man whom the respondent regarded as her stepfather. He had died in early 2004. The respondent was raised in France but frequently spent extended periods of school vacation and the like in the former Republic of Yugoslavia, where she had relatives on her mother's side of the family. Whilst in Yugoslavia on one of these occasions she was subjected to sexual abuse by a male member of that family. In the course of time the respondent developed a closer relationship with her father and was employed in his business in Paris for several years. She obtained some qualifications in business administration but at the time of her journey to Australia she was unemployed. 9 For an extended period of years she was an abuser of drugs and alcohol. Arrangements have been made for her entry into a rehabilitation program commencing in June 2004. As at that time she had been in a relationship with a boyfriend who was not a drug user and who was, and remains, supportive of her. Her father gave evidence of his good opinion of this young man. 10 However, to paraphrase what the respondent has said from time to time, she determined to go to Amsterdam for "one last fling", as it were, before commencing rehabilitation. Having spent her money on drugs and alcohol she found herself without the means to return to accommodation which she had in that city. She was approached by a man by the name of Jeff. Jeff enquired as to whether she wished to earn 2000 euros by going to London for one day. She indicated her assent. However on the following day Jeff introduced her to another male called Moxol. The latter told her that he had a bigger job and if she went to Australia she would be paid 4,050 euros. She was told that she would be carrying cocaine. Upon her agreement, Moxol put her up in a hotel in Amsterdam for two days and brought to her an empty suitcase into which she packed her clothes. Jeff and Moxol took her passport and later returned it with air tickets and visa. They gave her instructions as to what to do when she arrived in Sydney. She was told that the person who collected the suitcase would pay her the agreed fee. These men gave her some pocket money and she set off on her journey. She was driven by the recruiters from Amsterdam to Brussels. She flew from Brussels to catch the flight from Vienna. That aircraft stopped in Kuala Lumpur on the way to Sydney. There was no evidence that she was supervised by anyone connected with the importation during her journeys nor did she indicate that she believed she was subject to any. Obviously, she did not take the opportunity to terminate the arrangement by leaving at one of the stopping points. 11 There was evidence, which his Honour accepted that the respondent was being pursued by lawyers acting for debt collectors in France. Her total indebtedness was in the order of 7,000 euros, and she had accrued the debt in significant part by expenditure on drugs and alcohol. 12 Whilst it is true that on the representation of those who recruited her she believed that she was carrying cocaine, and his Honour accepted that she did not know what quantity of illicit drug she was carrying, these were not matters of particular relevance in the circumstances, having regard to her recklessness, her knowledge that she was carrying drugs of some sort, and her own statement during interview that she had told her recruiters that she would "take the risk". She was neither naïve nor uneducated, however, her role was specifically that of a courier. 13 The ground of appeal relied upon is that the sentence was manifestly inadequate. In support thereof challenge was made to three findings by his Honour: