Citation: Regina v Nikolovska [2010] NSWCCA 169
Court: New South Wales Court of Criminal Appeal
Date: 22 December 2010
Judge(s): Beazley JA, Kirby J, Johnson J
Background
The respondent was a long-serving Qantas Controls Analyst at the Sydney Distribution Centre in Mascot. She held a security clearance granting access to imported goods held within a secure area. Over a period of approximately two months in late 2007, she agreed to assist an acquaintance in intercepting a package being imported from Africa, knowing it contained drugs rather than the "diamonds" she initially claimed to expect.
Australian Customs intercepted the relevant parcel, which was addressed to a retired former colleague, and found it contained 1.96 kilograms of cocaine (1.431 kilograms pure). The respondent was arrested on 10 December 2007. She pleaded guilty to importing a marketable quantity of cocaine contrary to the Criminal Code Act 1995 (Cth). A marketable quantity under the Act falls between 2 grams and 2 kilograms, with amounts exceeding 2 kilograms constituting a "commercial quantity."
In September 2009, the District Court sentenced the respondent to six years' imprisonment with a non-parole period of three years and nine months. The Director of Public Prosecutions appealed, submitting the sentence was manifestly inadequate.
Legal Issues
- Whether the original sentence of six years with a non-parole period of three years and nine months was manifestly inadequate for importing a marketable quantity of cocaine
- Whether the respondent's role in the importation scheme was sufficiently low to justify significant mitigation
- Whether parity considerations arose, given the co-offender (Wagih Nakhla) had been sentenced and no Crown appeal had been brought against him
- Whether the court should exercise its discretion to intervene on a Crown appeal, taking into account hardship suffered by the respondent as a result of the appeal itself
- The application of section 68A of the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Decision
The Court of Criminal Appeal found the original sentence manifestly inadequate. The sentencing judge had understated the seriousness of the respondent's conduct. Her role was not at the bottom of the importation hierarchy: she was an experienced employee who deliberately exploited her security clearance and insider knowledge to facilitate the importation, communicated in code with her co-offender, and knew in advance that the scheme involved drugs.
On the parity question, the court acknowledged that the co-offender Nakhla had received a longer sentence and that no Crown appeal had been brought against him. The court examined whether the respondent's sentence had been improperly calibrated by reference to Nakhla's sentence. The court accepted that Nakhla's significantly greater role justified a meaningful difference between the two sentences, and that parity concerns did not operate to justify the leniency of the original sentence.
The court recognised that the Crown appeal itself had caused the respondent real hardship. Having achieved a favourable prison classification and associated benefits (including her own cell, better-paid work, and greater phone contact with family), the respondent lost those conditions when the appeal was lodged and her remand status was restored. Her health was also affected. The court accepted these matters as relevant to the exercise of its discretion on resentencing, and imposed a sentence that, while increased, remained somewhat lower than what would ordinarily have been appropriate at first instance.
The revised sentence of seven years and six months with a non-parole period of four years and nine months preserved the approximate ratio between the head sentence and non-parole period from the original sentence, while reflecting both the gravity of the offending and the mitigating effect of the appeal-related hardship.
Orders Made
- Leave to appeal granted
- The sentence imposed by Nicholson DCJ on 25 September 2009 was quashed
- In lieu thereof, the respondent was sentenced to imprisonment with a non-parole period of four years and nine months commencing 10 December 2007 and expiring 9 September 2012, with an additional term of two years and nine months expiring 9 June 2015, with eligibility for parole on 9 September 2012
Key Takeaways
- A Qantas employee who exploited her security clearance to facilitate a drug importation was found not to occupy a low role in the importation hierarchy, notwithstanding that a more senior co-offender directed the scheme.
- The Court of Criminal Appeal confirmed that using a position of trust and privileged access to assist in drug importation constitutes a significant aggravating feature in sentencing.
- Parity with a co-offender does not automatically constrain a Crown appeal where the co-offender played a materially greater role and no Crown appeal was brought against that person.
- Where a respondent suffers actual disadvantage, including loss of prison classification, employment benefits, and deteriorating health, as a direct consequence of a Crown appeal, those hardships are a relevant factor in resentencing and may moderate the extent of the increase.
- Under a Crown appeal, the appellate court retains a discretion to impose a sentence somewhat below what would have been appropriate at first instance, to account for the double-jeopardy-like burden placed on the respondent by the appeal process.
Legislation and Cases Referenced
Legislation
- Criminal Code Act 1995 (Cth), including ss 307.2(1) and 314.4
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009, s 68A
- Crimes Act 1914 (Cth)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Judiciary Act 1903 (Cth)
Cases (selected)
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Olbrich [1999] HCA 54
- House v The King (1936) 55 CLR 499
- Dinsdale v The Queen [2000] HCA 54
- R v Wong and Leung [1999] NSWCCA 420
- R v Borkowski [2009] NSWCCA 102
- Chan and Ors v Regina [2010] NSWCCA 153
- Hili v The Queen [2010] HCA 45
- R v Ferrer-Esis (1991) 55 A Crim R 231