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Court of Criminal Appeal 18 April 2005

Regina v Millerat

[2005] NSWCCA 142

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE IMPORTATION OF PROHIBITED DRUG (MDMA) YOUNG FEMALE COURIER NO PRIOR CONVICTIONS FOREIGN NATIONAL

Citation: Regina v Millerat [2005] NSWCCA 142
Court: Court of Criminal Appeal, New South Wales
Date: 18 April 2005
Judge(s): Grove J, Howie J, Hall J

Background

The respondent, a French citizen in her mid-twenties, was arrested at Sydney Airport in June 2004 after customs officers discovered approximately 28,750 MDMA tablets (containing just over two kilograms of pure MDMA) hidden in the lining of her suitcase. She had been recruited in Amsterdam by two men who offered her roughly 4,050 euros to carry what she believed was cocaine to Sydney. She was unemployed, in debt, and had a longstanding history of drug and alcohol abuse at the time.

The respondent pleaded guilty at an early stage to importing a commercial quantity of a prohibited drug (MDMA) contrary to section 233B(1)(b) of the Customs Act 1901, an offence carrying a maximum penalty of life imprisonment. The quantity involved exceeded four times the minimum commercial quantity. The District Court sentenced her to five years and six months imprisonment with a non-parole period of two years and nine months.

The Crown appealed on the ground that the sentence was manifestly inadequate, challenging three specific findings the sentencing judge had made when arriving at that result.

  • Whether the sentence of five years and six months (with a non-parole period of two years and nine months) was manifestly inadequate for importing a commercial quantity of MDMA in these circumstances.
  • Whether the sentencing judge erred in finding the respondent suffered from "severe depression," and in allowing that finding to significantly reduce the weight given to general deterrence.
  • Whether the sentencing judge erred in the degree of discount applied for the respondent's cooperation with police.

Decision

The Court of Criminal Appeal found the first instance sentence manifestly inadequate and allowed the Crown appeal. The sentencing judge had placed excessive weight on the respondent's depression and anxiety when reducing the importance of general deterrence. The Court accepted that mental health conditions and psychological vulnerability can diminish the weight given to deterrence in appropriate cases, but found that the discount applied at first instance was disproportionate to the evidence before the court.

The Court acknowledged the significant mitigating features present: the respondent was a young woman with no prior convictions, played the relatively limited role of a courier, had an established drug addiction, showed genuine prospects of rehabilitation, and had entered an early guilty plea. Her family's support was also on the record. However, the seriousness of the offence, the quantity of drugs involved, and the need for general deterrence could not be sufficiently addressed by the sentence as imposed.

In resentencing, the Court adopted a head sentence of twelve years imprisonment before applying a discount for the early guilty plea, reducing it to nine years. A non-parole period of four years and six months was set, adopting the same proportion as the sentencing judge because the Crown had expressly conceded that the non-parole period as a proportion of the head sentence was not the subject of complaint. The Court noted that this proportion was particularly favourable to the respondent and was adopted specifically in response to that concession.

Orders Made

  • Crown appeal against sentence allowed.
  • Sentence imposed in the District Court quashed.
  • Respondent resentenced to nine years imprisonment with a non-parole period of four years and six months, both commencing 13 June 2004, with the non-parole period expiring 12 December 2008.
  • The respondent's legal representatives directed to provide the explanation required by section 16F of the Crimes Act 1914.

Key Takeaways

  • A sentencing court may reduce the weight given to general deterrence where an offender suffers from a mental illness or psychological disability, but any such reduction must be proportionate to the evidence; an excessive discount on that basis can render a sentence manifestly inadequate.
  • Even where an offender is a young, first-time foreign national acting as a courier and motivated by financial desperation, the objective seriousness of importing a commercial quantity of MDMA demands a substantial custodial sentence.
  • The Court of Criminal Appeal confirmed that an early guilty plea may warrant a significant discount to a head sentence, reducing the notional twelve-year term to nine years in this case.
  • Where the Crown expressly concedes that a non-parole period (as a proportion of the head sentence) is not the subject of complaint, the Court of Criminal Appeal may adopt that same proportion when resentencing, even if the result is favourable to the offender.
  • Recklessness as to the type and quantity of drug carried does not operate as a meaningful mitigating factor where the offender knowingly agreed to transport an illicit substance and accepted the risk involved.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233B(1)(b) (offence of importing a commercial quantity of a prohibited drug)
- Crimes Act 1914 (Cth), s 16A (matters to be taken into account when sentencing), s 16F (explanation of sentence to offender), s 16G

Cases cited:
- R v Benais [1999] NSWCCA 236
- R v Bowers (1997) 97 A Crim R 461
- R v Klein (2001) 121 A Crim R 90
- R v Schofield [2003] NSWCCA 3
- R v Simon [2003] NSWCCA 147
- R v Spillane [1999] NSWCCA 280