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District Court 27 October 2021

R v Millevoi

[2021] NSWDC 578

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES IMPORT/EXPORT BORDER CONTROLLED PROHIBITED PLANT OR DRUG TRAFFIC CONTROLLED DRUG

Citation: R v Millevoi [2021] NSWDC 578
Court: District Court of New South Wales
Date: 27 October 2021
Judge(s): Montgomery DCJ

Background

The offender, a beautician, had operated a legitimate business importing and selling eyelash glue remover products since 2012. The products contained gamma-butyrolactone (GBL), a border-controlled substance. She had no awareness of this illegal ingredient until an undercover police operative visited her home business on 5 February 2019 and mentioned that the product contained the ingredient "G."

Following that conversation, the offender spent approximately three weeks continuing to import and sell the products while trying to find out whether her trading was legal. She contacted customs authorities and Australian Border Force for answers about a stopped shipment but received none. She was repeatedly reassured by family, friends, and police officers that her business was legitimate.

She was arrested on 27 February 2019. The charges covered the importation of 7.29 kg of GBL (Count 1) and the trafficking of 21.29 kg of GBL together with possession of a further 19.54 kg with intent to sell (Count 2). Both are Commonwealth offences carrying a maximum penalty of life imprisonment.

Legal Issues

  • Whether the offender's guilty state of mind was one of actual knowledge or mere recklessness as to the illegality of her importation and trafficking
  • The appropriate assessment of objective seriousness for both offences given the unusual circumstances
  • Whether an Intensive Correction Order (ICO) rather than full-time imprisonment was appropriate, having regard to general deterrence and the s 17A threshold under the Crimes Act 1914 (Cth)
  • The quantum of any discount for the utilitarian value of guilty pleas
  • The weight to be given to subjective matters including remorse, mental health, and family circumstances

Decision

Issue 1: State of Mind (Knowledge vs Recklessness)

Montgomery DCJ found that the offender never knowingly and purposefully imported or sold for the illicit trade (at [44]). While the evidence established beyond reasonable doubt that she appreciated a significant risk that her importation and distribution of the products was illegal, she did not reach a state of actual knowledge that this was so (at [32]-[44]). The court accepted her evidence as truthful and frank, noting that her frantic inquiries of customs, police, family, and friends were inconsistent with a person who already knew she was committing a crime (at [26], [46]). Her criminal culpability was further diminished by alcohol intoxication and mental health vulnerabilities at the time of the offending, which the Crown conceded had impaired her judgment (at [80]).

Issue 2: Objective Seriousness

Both offences were assessed at the very low end of the spectrum of offending of their respective types (at [59]-[60]). The court characterised the offender's role as that of a legitimate business person who "stumbled into criminal conduct," unwittingly acting as a gateway for an illicit clientele (at [47]). Critical factors included the absence of concealment, profit margins consistent only with normal commercial trading rather than criminal reward (at [52]-[53]), the fact that all transactions were properly documented as regular commercial business (at [37]), and that the offending occurred over only three weeks within a seven-year legitimate enterprise (at [105]).

Issue 3: Sentence Form and General Deterrence

The court acknowledged the statutory s 17A threshold was crossed, meaning imprisonment was required, and accepted the importance of general deterrence in drug importation cases (at [84], [91]-[93]). However, Montgomery DCJ declined to impose full-time imprisonment. The court found that an ICO of 2 years and 6 months, combined with fines, was sufficient to meet the purposes of denunciation, punishment, and general deterrence in these unique circumstances (at [121]). Factors supporting an ICO included the offender's complete rehabilitation, low recidivism risk, the Crown's concession that specific deterrence had already been achieved through prosecution, the impact on the offender's young daughter, and the pandemic health risks within the prison system (at [118]-[121]).

Issue 4: Plea Discount and Other Subjective Matters

A discount of 10 per cent was applied to each count for the utilitarian value of the guilty pleas, reflecting the complexity of the proceedings that were avoided (at [61]). The court accepted the offender's remorse as genuine and deeply felt (at [62]) and noted significant extra-curial punishment suffered through adverse media publicity (at [83]).

Orders Made

  • The offender was convicted of Counts 1 and 2
  • The offender was sentenced to a term of imprisonment of 2 years and 6 months, to be served by way of an Intensive Corrections Order (ICO)
  • Mandatory ICO conditions were imposed
  • Additional conditions imposed: notification of address or circumstance changes to Community Corrections; compliance with all reasonable directions toward rehabilitation or mental health treatment, including as to alcohol use; attendance at the Campbelltown Community Corrections Office on or before 3 November 2021
  • A fine of $3,000 was imposed for Count 1
  • A fine of $7,000 was imposed for Count 2

Key Takeaways

  • Where a defendant in a Commonwealth drug importation and trafficking case was found to have acted recklessly rather than with actual knowledge, and did so within the ordinary course of a long-standing legitimate business without concealment or criminal-level profit, the District Court assessed the objective seriousness of both offences as falling at the very low end of the spectrum (at [59]-[60]).

  • A court may impose an ICO in lieu of full-time imprisonment for serious Commonwealth drug offences where the s 17A threshold is crossed but the totality of circumstances, including very low objective seriousness, complete rehabilitation, and the unique character of the offending, justifies a non-custodial means of serving the sentence (at [91]-[122]).

  • Consistent and genuine inquiry by a defendant of law enforcement and regulatory authorities about the legality of her trading, even where those authorities failed to respond, was treated as a significant mitigating factor distinguishing the offending from a "blind eye" approach (at [107]).

  • Normal commercial profit margins, full documentation of transactions as regular business, and the absence of concealment collectively placed this offending at the opposite end of the spectrum from sophisticated, intentional criminal drug trade, even where the quantities involved were many times the commercial threshold (at [55]-[57]).

  • Mental health vulnerabilities combined with alcohol intoxication at the time of the offending can diminish criminal culpability in respect of the degree of deliberation involved, and the Crown's concession to that effect was accepted by the court as properly made (at [80]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth) ss 16A(1), 16A(2), 16A(2)(g), 16C , 17A, 20AB(1AA)(ix), 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 53A, 66
- Criminal Code Act 1995 (Cth) ss 5.2; 5.3; 5.4, 302.2(1), 307.1(1)
- Judiciary Act 1903 (Cth) s 68

Cases
- Director of Public Prosecutions (Cth) v Gregory – (2011) 34 VR 1
- Director of Public Prosecutions (Cth) v Maxwell [2013] VSCA 50
- Hili v The Queen (2010) 242 CLR 520
- Parente v R (2017) 96 NSWLR 633
- R v Coleman (1990) 47 A Crim R 306
- R v Fangaloka [2019] NSWCCA 173
- R v Le; R v Chanthavong [2020] NSWDC 625
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Nozhat (No 2) [2019] ACTSC 81
- R v Nozhat (No 3) [2019] ATSCC 160,
- R v Ponfield; R v Scott; R v Ryan; and R v Johnson (1991) 48 NSWLR 327
- R v Zamagias [2002] NSWCCA 17
- Robertson v R [2017] NSWCCA 205
- Smith v The Queen (2017) CLR 291
- The Queen v Pham (2015) 256 CLR 550
- Wong v The Queen (2001) CLR 584
- Xiao v R (2018) 96 NSWLR 1