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Court of Criminal Appeal 26 June 2008

Milich v Regina

[2008] NSWCCA 148

Drugs
CRIMINAL LAW AND PROCEDURE ATTEMPT TO POSSESS IMPORTED NARCOTIC CONVICTION AFTER TRIAL SENTENCE WHETHER MANIFESTLY EXCESSIVE PARTICULAR CIRCUMSTANCES

Citation: Milich v Regina [2008] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 26 June 2008
Judge(s): Beazley JA, Grove J, Hidden J

Background

The appellant was convicted after a jury trial in the Albury District Court of attempting to possess imported narcotic goods, specifically 408.1 grams of cocaine (with a net purity of 296.9 grams). She had been recruited over several years by a man known only as "Thomas," whom she met online, to receive packages at addresses in Albury. She claimed to have been unaware the packages contained drugs, but the jury rejected that account.

The cocaine arrived from Brazil in July 2005, addressed to a false identity the appellant had established. After a controlled delivery by undercover police, the appellant took possession of the package, removed its shipping labels, and was arrested shortly afterwards. She had given a false account to police following her arrest, consistent with a story she had prepared with Thomas.

At first instance, Nield DCJ sentenced the appellant to 10 years imprisonment with a non-parole period of 6 years. The appeal to the Court of Criminal Appeal was brought on the single ground that the sentence was manifestly excessive.

  • Whether the 10-year head sentence (with a 6-year non-parole period) was manifestly excessive in all the circumstances
  • Whether the sentencing judge adequately reflected the appellant's subjective circumstances, including her lack of prior criminal history, mental health background, rehabilitation prospects, and family situation
  • Whether the repeal of section 16G of the Crimes Act 1914 affected the relevance of sentencing ranges established in cases decided before that repeal (notably R v Wong)
  • Whether the sentencing judge correctly assessed the appellant's role in the offending as greater than that of a mere courier

Decision

Grove J (with whom Beazley JA and Hidden J agreed) upheld the sentencing judge's finding that the appellant's role exceeded that of a mere courier. The electronic communications between her and Thomas demonstrated knowing and willing participation in the arrangements to receive the package and to avoid detection, and no error was identified in that characterisation.

On the relevance of the sentencing range discussed in R v Wong (6 to 9 years as a head sentence), Grove J noted that both Wong and R v Karacic pre-dated the repeal of section 16G of the Crimes Act 1914, which had required a discount for federal offenders not held in federal custody. That repeal, effective 16 January 2003, meant pre-repeal sentencing benchmarks carried limited utility, and the Court drew little assistance from cases decided in that earlier period.

The Court accepted that the sentencing judge had acknowledged the appellant's significant mitigating factors: her previously unblemished character, her history of mental illness and disability pension status, her good relationship with her children, her excellent prospects for rehabilitation, and the assessment that she was unlikely to reoffend. However, the Court was not satisfied these factors received adequate reflection in the sentence ultimately imposed.

Comparing the sentence with those in analogous cases decided after the repeal of section 16G, the Court found the 10-year head sentence was at least at the upper end of the range and, given the weight of the mitigating factors, was manifestly excessive. An affidavit placed before the Court also confirmed the appellant had made genuine rehabilitative progress while in custody, further supporting a reduction.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed
  • Appellant resentenced to 8 years imprisonment commencing 14 October 2006, with a non-parole period of 4 years and 9 months commencing on the same date

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing ranges established in cases decided before the repeal of section 16G of the Crimes Act 1914 (effective 16 January 2003) carry limited weight in sentencing for federal drug offences committed after that date.
  • A sentencing judge is not bound by concessions or submissions from either counsel about the applicable sentencing range; the determination of sentence remains entirely the court's function.
  • Where a sentencing judge makes positive findings about an offender's subjective circumstances, including prior good character, rehabilitation prospects, mental health history, and family ties, those factors must be given meaningful reflection in the sentence ultimately imposed, not merely acknowledged in remarks on sentence.
  • Comparison with a body of cases decided after a significant legislative change can support a finding of manifest excess, even where the individual case differs in some subjective details.
  • Genuine rehabilitative progress demonstrated after the original sentencing, evidenced by affidavit, is a relevant consideration on resentence by an appellate court.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), section 16G (repealed 16 January 2003)

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