Milich v Regina [2008] NSWCCA 148

New South Wales Court of Criminal Appeal

CITATION: Milich v Regina [2008] NSWCCA 148

HEARING DATE(S): 26 June 2008 JUDGMENT OF: Beazley JA at 32; Grove J at 2; Hidden J at 33

EX TEMPORE JUDGMENT DATE: 26 June 2008

Appeal allowed DECISION: Sentence in District Court quashed Resentenced

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Attempt to possess imported narcotic - Conviction after trial - Sentence - Whether manifestly excessive - Particular circumstances - No special point of principle

LEGISLATION CITED: Crimes Act 1914

CATEGORY: Principal judgment

R v Karacic [2001] NSWCCA 12 CASES CITED : R v Rivadavia (2004) 61 NSWLR 63 R v Tsiaousis [2005] NSWCCA 240 R v Wong & anor (1999) 48 NSWLR 340

PARTIES: Jennifer MILICH - Applicant REGINA - Respondent/Crown

FILE NUMBER(S): CCA 200700002911

COUNSEL: M Ierace SC - Applicant L Brasch - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant Commonwealth Director of Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/71/0019

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 05/04/07

IN THE COURT OF CRIMINAL APPEAL CCA 2007/00002911

BEAZLEY JA GROVE J HIDDEN J

26 June 2008 Jennifer MILICH v REGINA Judgment 1 BEAZLEY JA: The Court is in a position to give judgment and I will ask Grove J to give the first judgment. 2 GROVE J: This is an application for leave to appeal against severity of sentence following conviction of the applicant at trial in Albury District Court on an indictment charging an attempt to possess imported narcotic goods namely a quantity of cocaine. The goods weighed 408.1 grams and had a nett purity of 296.9 grams. She was sentenced to imprisonment for 10 years with a non parole period of 6 years. The ground of appeal is that the sentence is manifestly excessive. 3 The facts were summarized by Nield DCJ in his remarks on sentence. I draw from them for this abbreviated narration. During 2002 the applicant resided in Albury and became acquainted with a man of Nigerian origin who called himself Thomas on an internet chat line. Subsequently Thomas travelled to Albury and from time to time over the next few years they had personal as well as internet contact. 4 Thomas asked the applicant to assist him in receiving packages which she claimed she believed contained materials which would help Africans have a better life in Australia. She claimed to have been assured by Thomas that the packages contained nothing associated with terrorism or drugs. In evidence in the sentencing proceedings the applicant continued to maintain that she had no knowledge that there were drugs in the particular package which was the subject of the indictment, but of course, that assertion was inconsistent with the jury verdict upon which his Honour was required to proceed to sentence. 5 During 2004 and 2005 the applicant was involved in arrangements for the reception of four packages, three of which were delivered to her and one to the home of a neighbour. Thomas arrived to collect two of these packages and the other two were forwarded by the applicant to addresses nominated by him. 6 The applicant established an email address in the name of Kylie Fox. On 3 July 2005 a package addressed to Kylie Fox arrived in Australia from Brazil. It contained the cocaine which I have described. It was intercepted by police. Thereafter the package was the subject of a controlled delivery, an expression which is well understood. 7 For the receipt of this package the applicant had been involved in negotiating a short term rental of a flat in Albury. The parcel delivery service had been directed to this address and on the morning of 13 July 2005 the applicant placed a note on the front door indicating that she had been called away urgently and asking that the package be left. The package was brought to the flat by a police officer disguised as a postman and he did not leave the package. However, contact was made with a mobile phone number which had been endorsed on the note on the door and later in the day the applicant was met at the flat by the police officer and she took possession of the package. 8 She removed the labels from the package using a pair of scissors and left the flat and drove to a shopping centre. There she was arrested by police and found in possession of items including the shipping labels which had been taken from the package. 9 After arrest she was interviewed by police and gave a false explanation of events in accordance with a concoction that she had prepared in consultation with Thomas. 10 Thomas has, so far as the evidence reveals, not been identified nor been arrested. The prosecution included material collected in the course of investigation and in particular the electronic messages which had passed between the applicant and Thomas. It suffices to observe that these revealed a knowing and willing participation by the applicant in the arrangements for the receipt of the package and in the activities designed to inhibit detection by the temporary use of the flat and false identities. 11 His Honour made findings concerning the applicant's background and subjective circumstances. She had worked for a lengthy period in employment with the Australian Taxation Office but suffered a nervous breakdown when seconded to the Commonwealth Employment Service. She accepted voluntary redundancy in 1997 and was placed on a disability pension in 2001. She had been married but was divorced. Her 21 year old daughter resided independently in Melbourne and her 17 year old son resided with his father in Wodonga across the border from where she resided in Albury. 12 The written submissions on behalf of the applicant read, if I may say so with respect, more like submissions on sentence than submissions in support of a contention that the sentencing judge was in error. The submissions are presented under two headings, the first entitled "The Degree of Culpability" and second, "Comparative Cases". In the circumstances it is convenient to approach the matter by dealing with the various aspects which have been raised under those headings. 13 It is noted that at first instance there were competing submissions concerning the level of the applicant's participation in what was obviously an importation which involved more participants than simply Thomas and herself. At the very least there had to be someone involved in the consignment from Brazil from whence the package originated. His Honour dealt with the contest and his remarks on sentence included: "The Crown Prosecutor submitted that the offender's role in the importation of the cocaine was greater than that of a courier, whereas the offender's counsel submitted that, however the offender's role is described, it was at the bottom of the ladder of the hierarchy of drug importation. I agree with the Crown Prosecutor. I consider, having regard to the content of her email transmissions and to what she did, that the offender was more involved in the importation of the cocaine than a courier, with her involvement being determined by what she did." 14 It was in complete harmony with authority that his Honour focussed on what the applicant did. Insofar as there is an implied challenge to this finding it should be rejected. No error has been demonstrated. 15 Allied to this reference to his Honour's remarks is a submission founded upon the circumstance that at first instance both counsel referred his Honour to the range identified in R v Wong & anor (1999) 48 NSWLR 340. The range discussed in that case was between 6 and 9 years imprisonment as head sentence. There was a dispute about a written submission by the Crown that the expression of this range applied to pleas of guilty whereas it had been described as applicable either when there had been pleas of guilty or convictions at trial: R v Karacic [2001] NSWCCA 12. 16 In this Court the Crown does not dispute that the prosecutor had said "The Crown is not suggesting that the range should be above or beyond that which is set out in Wong . We're not suggesting that it should be above that but that it is – the range is set in Wong and Leung , it's a bottom up range in the sense that it's a reflection of the sentencing patterns to that time and it wasn't and it should be regarded in that way by your Honour". 17 Whilst I find some obscurities in that transcription, as I have said the essence is not denied. Nevertheless, it was of course for his Honour to determine the sentence and he was not bound by submissions or concessions by either counsel. 18 It is of importance to note that both Wong and Karacic were decided prior to the repeal of s 16G of the Crimes Act 1914 which repeal took effect on 16 January 2003. The Crown referred his Honour to what I had said about s 16G in R v Tsiaousis [2005] NSWCCA 240 namely: "The effect of preponderance of authority (to which might also be added R v Dejeu [2004] NSWCCA 237) is that it would be inappropriate to approach the sentencing exercise upon a broad arithmetical approach applying that to some perceived pre repeal pattern of sentencing. Whilst it is acknowledged that the repeal is likely to result in an increase over what might be discerned by reference to any earlier pattern the proper approach remains for a sentencing judge to meet the requirements set out in s 16A (1) of the Crimes Act 1914." 19 As to the likely effective increase following repeal of s 16G I can refer also to R v Rivadavia (2004) 61 NSWLR 63 and the cases cited therein. 20 There is no error derived from any failure of his Honour to limit his sentence within the range discussed in R v Wong. 21 The applicant submits that, notwithstanding his Honour's finding the applicant had a relatively low status in the importation exercise. As earlier stated, his Honour's approach of considering what the evidence showed that the applicant had done rather than seeking to establish a position in the drug importation hierarchy was a correct approach. 22 Complaint is made that his Honour did not state that he had taken the applicant's prior good character into account. His Honour twice stated in his remarks that the applicant had an unblemished character before the commission of the subject offence and in making those statements he was obviously indicating that he was taking it into account. He was not obliged to engage in some ritual incantation that he had taken it into account. 23 Further complaint is made that his Honour's observation that he suspected that the applicant's reward would have been greater than the amounts of money that she received from Thomas is demonstrative of error. The amounts of money received from Thomas were comparatively small and part of it appears to have been used to pay the rent on the flat to which delivery was made. His Honour was doing no more than candidly expressing the suspicion which he held but he had qualified that by expressly finding that the evidence did not allow him to say what the applicant was to receive for her participation. The expression of the suspicion was not a finding and there is no basis for concluding that he weighed that suspicion as an adverse fact in assessing the sentence for the applicant. 24 There were, however, a number of matters which his Honour expressly said that he was taking into account in the applicant's favour. Although the applicant denied her knowledge concerning the narcotic content of the package, she made considerable admissions as to fact which were incorporated in a lengthy statement of agreed facts which undoubtedly shortened the trial considerably with obvious benefit to the administration of justice. His Honour expressly accepted a submission that for this the applicant was entitled to a discount in penalty. He stated that she was entitled to a further discount by reason of having been subjected to particularly onerous conditions of bail. She was required to report twice daily and his Honour referred to restrictions on her movement and lifestyle, such restrictions included a curfew and, as she testified in the sentencing proceedings, prevention from crossing the border into the town of Wodonga where her 17 year old son was residing with her ex husband. Although her children had resided with her former husband after their divorce, she maintained a good relationship with them. 25 Further, his Honour found that the applicant had learned a salutary lesson from doing what she did and was satisfied that she had excellent prospects for rehabilitation and was unlikely to reoffend. He repeated at this point his reference to her previously unblemished character. 26 Whilst I accept that his Honour did take these matters into account as he stated he would, it is difficult to perceive that these factors received reflection in sentence as ultimately assessed to the level which they merited. 27 Both counsel have taken the Court to a series of cases for the purpose of comparison. For reasons which I have adumbrated earlier I find little assistance to be derived from assessments made prior to the repeal of s 16G of the Crimes Act. What can be observed is that the sentence imposed upon the applicant impresses as markedly higher than the preponderance of the cases assembled for the purpose of comparison. The detail of subjective circumstances in particular of course varies from offender to offender but when it is considered that the applicant was entitled to significant weight for the matters which his Honour found in her favour I am persuaded that what appears by comparison to be, to say the least, upper end range sentence received by the applicant is manifestly excessive. 28 On the potential issue of resentence the Court has the benefit of an affidavit from the applicant showing that she has, whilst in custody, fulfilled the promise that his Honour predicted in relation to progress towards rehabilitation and that circumstance is thereby enhanced in the weight that should be accorded to it. 29 I propose that the application for leave to appeal against sentence be granted and the appeal allowed, and the sentence in the District Court quashed. 30 In lieu thereof the applicant be sentenced to imprisonment for 8 years commencing on 14 October 2006 with a non parole period of 4 years 9 months commencing on that date. 31 The Court is required to ensure that the effect of setting a non parole period is explained to the applicant and I would direct the legal representatives of the applicant to discharge that duty. 32 BEAZLEY JA: I agree with Grove J. 33 HIDDEN J: I agree with Grove J. 34 BEAZLEY JA: The orders of the Court will be those proposed by Grove J. **********