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District Court 5 April 2007

R v Milich

[2007] NSWDC 96

Drugs
CRIMINAL LAW SENTENCE AFTER TRIAL

Citation: R v Milich [2007] NSWDC 96
Court: District Court of New South Wales
Date: 5 April 2007
Judge(s): Nield DCJ

Background

The offender, a 45-year-old woman from Albury with no prior criminal history, was convicted by jury of attempting to possess cocaine imported into Australia, contrary to s 233B(1) of the Customs Act. The charge arose from her role in receiving a package sent from Brazil, addressed to a false name she used, which contained approximately 297 grams net of cocaine. Australian Federal Police intercepted the package, substituted the cocaine with an inert powder, and conducted a controlled delivery.

The offender had met a Nigerian man online in 2002 and formed a romantic relationship with him. From 2004, at his request, she began receiving and forwarding packages she claimed to believe contained documents intended to assist African immigrants. On 13 July 2005, she attended rented premises in Albury, received the substituted package from an undercover federal agent posing as a postal officer, removed the shipping labels, and was arrested shortly after leaving.

During her post-arrest interview, the offender relayed a cover story she and her co-offender had prepared in advance. The co-offender, who went by the name "Thomas," was never apprehended. The offender was tried and convicted following a contested hearing.

  • What was the appropriate sentence for the offence of attempting to possess cocaine imported into Australia, taking into account both the gravity of the offence and the personal circumstances of the offender?
  • What weight should be given to the offender's claimed ignorance of the package's contents, her personal history, and the manipulative conduct of her co-offender?
  • How should the principles of general deterrence be balanced against the offender's prospects for rehabilitation and her limited role in the broader scheme?

Decision

Nield DCJ accepted that the offender was genuinely besotted with her co-offender and had been used by him, but found that this did not excuse her conduct. The court declined to accept that she was entirely ignorant of the nature of the packages, noting the elaborate steps taken to conceal the delivery, the use of a false name, renting of separate premises, and the pre-arranged cover story. These facts pointed to a degree of awareness and participation beyond that of a wholly unwitting courier.

The court considered the offender's personal circumstances at some length. She had an unblemished prior record, suffered from depression and anxiety, had a difficult personal history including marriage breakdown and periods of mental illness, and had no history of drug abuse. The court noted she had made productive use of her time in custody and assessed her prospects for rehabilitation as excellent, with reoffending considered unlikely.

Despite those mitigating factors, the court placed significant weight on general deterrence. Nield DCJ emphasised that custodial sentences for drug importation serve a broader purpose of discouraging others from participating in such schemes, regardless of the quantity involved or the method used. The court balanced all relevant factors and imposed a sentence of ten years' imprisonment with a non-parole period of six years.

Orders Made

  • The offender was convicted of attempting to possess cocaine imported into Australia contrary to the Customs Act.
  • Sentenced to imprisonment for ten years, commencing 14 October 2006.
  • Non-parole period of six years fixed: 14 October 2006 to 13 October 2012.
  • Parole period of four years: 14 October 2012 to 13 October 2016.
  • The offender was ordered to be subject to supervision by the Probation and Parole Service during the parole period.
  • The cocaine was ordered destroyed if not already done so.

Key Takeaways

  • General deterrence carries substantial weight in drug importation sentencing: the District Court held that custodial sentences must convey to the broader community that importation of prohibited drugs will result in imprisonment, irrespective of the quantity or the offender's peripheral role.
  • Romantic manipulation by a co-offender may constitute a mitigating circumstance, but the court found it did not excuse the offender's conduct where her actions demonstrated awareness of the need for concealment.
  • A finding of excellent rehabilitation prospects and low likelihood of reoffending reduced the weight placed on personal deterrence, but did not displace the primacy of general deterrence in this category of offence.
  • An unblemished prior record, cooperation indicators, and positive pre-sentence reports will be considered in mitigation, though their effect is measured against the inherent seriousness of drug importation offences.
  • Each sentencing decision in this area turns heavily on its particular facts: Nield DCJ noted that Court of Criminal Appeal decisions in comparable cases often resist direct comparison given the factual specificity of each matter.

Legislation and Cases Referenced

Legislation:
- s 233B(1) of the Customs Act (Cth)

Cases:
- R v Wong and Leung [1999] NSWCCA 420
- R v Mas Rividavia [2004] NSWCCA 284
- R v Paliwala [2005] NSWCCA 221
- R v Haidar [2004] NSWCCA 350