Citation: R v Nikolovska, Anne [2009] NSWDC 291
Court: District Court of New South Wales
Date: 25 September 2009
Judge(s): Nicholson SC DCJ
Background
The offender, a 49-year-old woman who had worked at Qantas for 27 years at the Sydney Distribution Centre at Mascot, was charged with importing a marketable quantity of a border controlled drug under Commonwealth law. Federal Police had monitored coded telephone conversations between the offender and a co-offender from October 2007, and intercepted a DHL freight consignment containing approximately 1.96 kilograms of cocaine admixture concealed in oil filters on 6 December 2007.
The offender was arrested on 10 December 2007 after the Australian Federal Police delivered the package to the Mascot facility as part of a controlled operation. Phone intercepts captured her alerting the co-offender when the package landed on a colleague's desk, and her subsequent attempts to retrieve it before her arrest.
The offender pleaded guilty. The central sentencing questions concerned her precise role in the importation, what she knew about the nature of the contraband, whether any pressure from the co-offender was relevant, and how her personal circumstances and early plea should affect the sentence.
Legal Issues
- What was the objective seriousness of the offending, including the offender's role and knowledge of the contraband?
- What weight should be given to the defence claim that she believed the contraband was diamonds rather than drugs?
- What relevance, if any, did pressure from the co-offender (short of legal duress) have on the sentence?
- How should the offender's subjective circumstances (age, employment history, family background, plea of guilty) be weighed?
- What effect, if any, did the delay between offending, arrest, and sentencing have?
- How should community protection be balanced against other sentencing considerations under s 16A of the Crimes Act 1914 (Cth)?
Decision
The court found that the offender's role extended well beyond that of a simple delivery person. Phone intercepts demonstrated she was actively monitoring the likely arrival of the consignment, passing information to the co-offender, and ultimately attempting to retrieve the package after it came to a colleague's attention. The court characterised her as a facilitator operating within the transport and customs holding system, with security access to Qantas premises that was central to the scheme.
On the question of her knowledge, the court did not accept that she was unaware the importation involved contraband of some kind. The coded language used in telephone conversations from as early as October 2007 was inconsistent with innocence about the general nature of the enterprise. The court acknowledged the pressure applied by the co-offender, including an SMS message stating "My kid's life on your hands," but treated this as falling well short of duress.
The offender's subjective circumstances were treated as favourable. Her 27-year employment record, her community ties, her lack of prior criminal history, and her early guilty plea all told in her favour. The court accepted that she had lost her employment as a direct consequence of her imprisonment and treated this as a form of extra-curial punishment (that is, punishment suffered outside the formal sentence itself). Some delay between offending and sentence was noted, though the court did not treat it as having a major mitigating impact given her time in custody was to be counted.
The maximum penalty for the offence was 25 years imprisonment. Taking into account the objective seriousness of a commercial-scale cocaine importation, the offender's facilitating role, her favourable subjective circumstances, and her early plea, the court imposed a total sentence of six years with a non-parole period of three years and nine months, backdated to the date of arrest.
Orders Made
- The offender was convicted of importing a border controlled drug (cocaine) in a marketable quantity, contrary to s 307.2(1) of the Criminal Code (Cth).
- A term of imprisonment of six years was imposed, commencing 10 December 2007 and expiring 9 December 2013.
- A non-parole period of three years and nine months was set, expiring 9 November 2011.
- The offender was ordered to be supervised by Probation and Parole pursuant to s 52 of the Crime (Sentencing Procedure) Act upon release.
- The sentence was noted as subject to a Crown appeal.
Key Takeaways
- A security-cleared employee who monitored incoming freight, passed information to an importer, and attempted to retrieve contraband was characterised as a facilitator within the customs and transport system, not merely a courier or delivery person.
- Where coded telephone conversations over several weeks demonstrate active involvement in an importation scheme, a claim of ignorance about the nature of the contraband carries limited weight in sentencing.
- Pressure from a co-offender that falls short of legal duress does not negate criminal liability but may be acknowledged in the overall sentencing assessment alongside other subjective factors.
- Under s 16A of the Crimes Act 1914 (Cth), the sentencing court must consider a statutory checklist of matters while keeping community protection as the primary focus, particularly where a substantial term of imprisonment is inevitable.
- Loss of long-term employment as a direct consequence of imprisonment can constitute extra-curial punishment, relevant to the overall weight of the sentence imposed.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), s 307.2(1)
- Crimes Act 1914 (Cth), s 16A
- Crime (Sentencing Procedure) Act (NSW), s 52
Cases
- Gladue v The Queen [1999] 1 SCR 688
- R v Cuthbert [1967] 2 NSWR 329
- R v Rushby [1977] 1 NSWLR 597
- R v Hayes [1984] 1 NSWLR 740