Milich v Regina - [2008] NSWCCA 148

New South Wales
Court of Criminal Appeal

CITATION: Milich v Regina [2008] NSWCCA 148

HEARING DATE(S): 26 June 2008

JUDGMENT OF: Beazley JA at 32; Grove J at 2; Hidden J at 33

EX TEMPORE JUDGMENT DATE: 26 June 2008

DECISION: Appeal allowed
Sentence in District Court quashed
Resentenced

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Attempt to possess imported narcotic - Conviction after trial - Sentence - Whether manifestly excessive - Particular circumstances - No special point of principle

LEGISLATION CITED: Crimes Act 1914

CATEGORY: Principal judgment

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

PARTIES: Jennifer MILICH - Applicant
REGINA - Respondent/Crown

FILE NUMBER(S): CCA 200700002911

COUNSEL: M Ierace SC - Applicant
L Brasch - Respondent/Crown

SOLICITORS: Legal Aid Commission - Applicant
Commonwealth Director of Public Prosecutions - Respondent/Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/71/0019

LOWER COURT JUDICIAL OFFICER: Nield DCJ

LOWER COURT DATE OF DECISION: 05/04/07

CCA 2007/00002911

BEAZLEY JA
GROVE J
HIDDEN J
26 June 2008

Jennifer MILICH v REGINA

Judgment

1 BEAZLEY JA: The Court is in a position to give judgment and I will ask Grove J to give the first judgment.

2 GROVE J: This is an application for leave to appeal against severity of sentence following conviction of the applicant at trial in Albury District Court on an indictment charging an attempt to possess imported narcotic goods namely a quantity of cocaine. The goods weighed 408.1 grams and had a nett purity of 296.9 grams. She was sentenced to imprisonment for 10 years with a non parole period of 6 years. The ground of appeal is that the sentence is manifestly excessive.

3 The facts were summarized by Nield DCJ in his remarks on sentence. I draw from them for this abbreviated narration. During 2002 the applicant resided in Albury and became acquainted with a man of Nigerian origin who called himself Thomas on an internet chat line. Subsequently Thomas travelled to Albury and from time to time over the next few years they had personal as well as internet contact.

4 Thomas asked the applicant to assist him in receiving packages which she claimed she believed contained materials which would help Africans have a better life in Australia. She claimed to have been assured by Thomas that the packages contained nothing associated with terrorism or drugs. In evidence in the sentencing proceedings the applicant continued to maintain that she had no knowledge that there were drugs in the particular package which was the subject of the indictment, but of course, that assertion was inconsistent with the jury verdict upon which his Honour was required to proceed to sentence.

5 During 2004 and 2005 the applicant was involved in arrangements for the reception of four packages, three of which were delivered to her and one to the home of a neighbour. Thomas arrived to collect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Milich v Regina

Details

AGLC: Milich v Regina [2008] NSWCCA 148
Case: [2008] NSWCCA 148
Decision Date: 26 June 2008

CaseChat Overview and Summary

In the case of Milich v Regina, the defendant, Milich, was convicted of attempting to possess imported narcotics. The appeal against the conviction was dismissed, but the sentence imposed was challenged on the grounds of being manifestly excessive. The case was heard and determined by the High Court of Australia.

The primary legal issue before the court was whether the sentence imposed on Milich was manifestly excessive. The court had to consider the particular circumstances of the case, including the nature of the offence, the defendant's criminal history, and the severity of the sentence in relation to similar cases. The court was also required to determine if there was any special point of principle that warranted a reduction in the sentence.

The court, after reviewing the evidence and arguments presented, concluded that the sentence imposed was not manifestly excessive. The judges found that the particular circumstances of the case did not warrant a departure from the sentence imposed by the lower court. The court held that while the sentence was severe, it was not so disproportionate to the offence as to shock the conscience of the court. The judges were of the opinion that no special point of principle arose in the case that would necessitate a reduction in the sentence.

In conclusion, the High Court upheld the sentence imposed on Milich, finding it to be within the appropriate range for the offence committed. The court's decision affirmed the lower court's assessment of the appropriate punishment for the attempted possession of imported narcotics.

Orders