Citation: R v Miller [2015] NSWDC 380
Court: District Court of New South Wales
Date: 9 October 2015
Judge: Judge S Norrish QC
Background
The offender, a 29-year-old British citizen, arrived at Sydney Airport on 7 December 2014 on a tourist visa, having travelled from London via Dubai. He completed an Incoming Passenger Card containing multiple false statements, including denying the presence of illicit drugs and claiming the bags were his own. A search revealed a neck pillow concealing four wrapped packages of MDMA with a total gross weight of approximately 1.98 kilograms and a purity of 69 percent, giving a pure weight of around 1.37 kilograms.
The offender was acting as a courier at the direction of others. He told customs officers he had been asked to bring a "parcel" into the country by a man named Andre, whom he believed had placed ketamine in the neck pillow. The estimated wholesale value of the MDMA was between $81,150 and $135,240, with a street value estimated at between $405,750 and $676,000.
The offender pleaded guilty to importing a commercial quantity of a border-controlled drug, an offence carrying a maximum penalty of life imprisonment and/or a fine of 7,500 penalty units. He had remained in custody from the date of his arrest. The central contested issue at sentence was whether the offender had acted under non-exculpatory duress.
Legal Issues
- Whether the offender acted under non-exculpatory duress, and if so, what weight that carried as a mitigating factor in sentencing
- The appropriate weight to give the guilty plea and cooperation with law enforcement agencies
- How the statutory sentencing framework under Part 1B of the Crimes Act (Cth) 1914, particularly section 16A, applied to the circumstances
- The fixing of a non-parole period for an offender who would be deported on release, and whether deportation altered the approach to that calculation
Decision
Judge Norrish QC identified non-exculpatory duress as the critical issue in the sentencing exercise. The court accepted that the offender had acted under threats or pressure from others, but that the duress was not of a kind that excused or justified the conduct. Instead, it operated as a mitigating factor reducing the offender's moral culpability, without diminishing the objective seriousness of the offence itself.
The court applied the statutory factors under section 16A(2) of the Crimes Act (Cth) 1914, including the nature and circumstances of the offence, the offender's contrition, his guilty plea, his cooperation with authorities, his character and antecedents, his drug use, his prospects of rehabilitation, and the effect of the sentence on his dependent mother. General deterrence was also expressly treated as a relevant consideration, consistent with the Court of Criminal Appeal's approach in El Karhani, notwithstanding that section 16A contains no express reference to it.
The court rejected any suggestion that the offender's pending deportation to the United Kingdom should reduce the benefit he received from the calculation of a non-parole period. Consistent with established authority, the offender was entitled to the same consideration in fixing a non-parole period as any other offender who would be released into the community under parole supervision, even though actual parole supervision would not occur. The court acknowledged this produced a degree of legal fiction but described it as well entrenched in Australian law.
The court also noted that the offender would serve his sentence at a considerable distance from his family in Great Britain, but treated this as a matter of limited weight in circumstances where a person who travels to Australia to commit a serious offence can expect to serve any resulting custodial term separated from family.
Orders Made
• Convicted of the offence to which pleaded guilty
• Sentenced to a term of imprisonment of six years and six months, dating from 7 December 2014, expiring on 6 June 2021
• Non-parole period fixed at three years and seven months, commencing 7 December 2014 and expiring on 6 July 2018
• Eligible for parole from 6 July 2018
The judgment records that the offender would not be eligible for release to parole until at least 6 July 2018, at which point he was expected to be taken into immigration detention and deported.
Key Takeaways
- Non-exculpatory duress (duress that does not legally excuse the offence but establishes that the offender acted under compulsion) is recognised as a mitigating factor capable of reducing moral culpability at sentence, even for serious Commonwealth drug offences.
- Under the sentencing framework in Part 1B of the Crimes Act (Cth) 1914, general deterrence remains a relevant sentencing consideration for serious drug importation matters, consistent with the principle confirmed in R v El Karhani, despite the absence of an express reference to it in section 16A.
- Where an offender will be deported on release rather than supervised under parole conditions, the District Court confirmed this does not diminish the offender's entitlement to the ordinary benefit of a properly calculated non-parole period.
- Acting as a courier at the direction of others does not reduce the objective seriousness of a commercial drug importation, even where the offender's role was relatively low in the supply chain.
- The estimated street and wholesale value of imported drugs, together with drug purity and weight, formed part of the court's assessment of the objective gravity of the offending.
Legislation and Cases Referenced
Legislation
- Crimes Act (Cth) 1914, Part 1B, particularly section 16A
Cases
- DPP v De La Rosa [2010] NSWCCA 194
- R v El Karhani (1990) 51 A Crim R 123
- R v Le [2006] NSWCCA 136
- R v Henry and Ors (1999) 46 NSWLR 346
- Tiknius v The Queen [2011] NSWCCA 215