R v Milich

[2007] NSWDC 96

CITATION:	R v Milich [2007] NSWDC 96
HEARING DATE(S):	18-20, 23-24 October 2006; 25 January 2007
JUDGMENT DATE:	5 April 2007
JURISDICTION:	Criminal
JUDGMENT OF:	Nield DCJ
DECISION:	See paragraph 42
CATCHWORDS:	Criminal law - sentence after trial - attempt to possess prohibited goods (cocaine) imported into Australia contrary to s.233B(1) Customs Act
LEGISLATION CITED:	s233B(1) Customs Act
CASES CITED:	R v Wong and Leung [1999] NSWCCA 420 R v Mas Rividavia [2004] NSWCCA 284 R v Paliwala [2005] NSWCCA 221 R v Haidar [2004] NSWCCA 350
PARTIES:	Regina Jennifer Mary Milich
FILE NUMBER(S):	06/71/0019
COUNSEL:	Mr L. Brasch (Crown) Mr C. Smith (Offender)
SOLICITORS:	Commonwealth DPP Mr C. Halburd (Offender)

JUDGMENT

HIS HONOUR: As to the sentencing of Jennifer Mary Milich.

1 The offender is Jennifer Mary Milich. She was born on 4 February 1962. Accordingly, she was aged forty-three years five months when she committed the subject offence, to which I will refer in due course, and she is aged forty-five years two months now.

2 The offender is the eldest of her parent's five children. Her father died about fifteen years ago when he was aged fifty-eight years, as a result of lung cancer. Her mother, who is aged sixty-four years, is alive. Notwithstanding some difficulty in her relationship with her mother, she and her mother are attempting to mend their relationship and her mother is supportive of her. I do not see any relationship between her background and her commission of the subject offence.

3 The offender’s upbringing was less than perfect. Her upbringing is described in the report (exhibit 9) of Mr Borenstein, psychologist, and need not be recited. I do not see any relationship between her upbringing and her commission of the subject offence.

4 The offender attended Wodonga West Primary School from kindergarten to Year 6, and Wodonga High School from Year 7 to Year 10, leaving high school at the end of 1978. She commenced Year 11 at Wodonga Technical College but she did not complete the year.

5 After ceasing to attend Wodonga Technical College, the offender commenced employment with the Australian Taxation Office and she had that employment until 1997. During 1995 she was seconded to the Commonwealth Employment Service. As a result of this secondment, she suffered a nervous breakdown and was unable to continue her employment. She accepted voluntary redundancy in 1997. She has held some casual employments, some paid, most unpaid, since 1997. She was placed on a disability pension in 2001.

6 The offender met her future husband shortly after she commenced employment with the Australian Taxation Office. She kept company with him for four or five years before they married when she was aged twenty-one years. They are the parents of two children, a daughter aged twenty-one years and a son aged sixteen years. She suffered post- natal depression following the births of her daughter and her son, and took anti depressant medication for twelve months after the birth of her daughter and for one month after the birth of her son. Unfortunately, her marriage started to unravel when she suffered the nervous breakdown and she and her husband separated during 1997. After her separation from her husband, her children continued to live with her husband. Now her daughter lives in Melbourne and is self supporting, and her son lives with her former husband in Wodonga and he is in Year 11 at Wodonga High School. She has a good relationship with both her children.

7 The offender enjoys good physical health, albeit that she is overweight and that she smokes cigarettes. However, she does not enjoy good mental health. She is anxious and depressed, for which she takes anti depressant medication. I suspect that her pre offence state of depression has been exacerbated by her present situation. I do not see any relationship between her depression and her commission of the subject offence.

8 The offender has not abused intoxicating liquor or any prohibited drug, although occasionally she has smoked cannabis.

9 The offender had an unblemished character before her commission of the subject offence. Moreover, she was well liked and well respected by those who knew her. I find it difficult to understand why she committed the subject offence and, without that understanding, I accept that she was besotted by her co-offender who used the name of Thomas.

10 The circumstances in which the offender committed the subject offence are as follows.

11 During 2002 the offender “met”, if that is the correct word, a man who, as I have said, called himself Thomas, on an internet “chat line”. About two weeks after this “meeting”, Thomas travelled from Sydney to Albury for a face to face meeting with the offender. Thomas was a Nigerian national by birth and, he claimed, an Australian citizen by naturalisation. The offender and Thomas commenced a relationship, in which they “talked” on the “chat line” and met in Albury where the offender lived, or in Strathfield where Thomas lived “a couple of times a year”.

12 Some time during 2004, Thomas asked the offender to “help him out” by receiving “packages”, which, she claimed, he said “contained documents”, which, she claimed, she believed were to be used to “help Africans to have a better life in Australia”.

13 Consequently, during 2004 and early 2005, three packages arrived at the offender’s home and one package arrived at the offender’s neighbour’s home, of which the offender was caring, which package was collected by the offender, and, of these four packages, two were collected by Thomas from the offender at her home at Albury and two were forwarded by the offender to addresses nominated by Thomas.

14 On 3 July 2005 a package addressed to “Kylie Fox”, a name used by the offender, arrived in Australia from Brazil. This package was opened and its contents were found to be 408.1 grams gross, 296.9 grams net of cocaine. The cocaine was removed from the package and replaced with another powder and the package was re-assembled to appear as if it had not been opened, to be delivered by an Australian Federal Police officer posing as an Australia Post officer, to the addressee, that is Kylie Fox.

15 Between 3 July 2005 and 13 July 2005 a number of email transmissions passed between the offender posing as Kylie Fox, and UPS and Ms K Edelman of UPS related to the movement of the package in the UPS system.

16 On 8 July 2005 a man who used the name “M Badah”, and who probably was Thomas, arranged with Ms J Barlow of Albury Wodonga Apartments to rent premises at 534 Young Street in Albury for the period from 8 July 2005 to 14 July 2005.

17 On the morning of 13 July 2005 the offender placed a note on the front door of premises at 534 Young Street in Albury, for the Australia Post officer, related to the delivery of the package.

18 At about 1.30 pm on 13 July 2005 Federal Agent Ian Perisa, posing as an Australia Post officer, attended the premises at 534 Young Street in Albury to deliver the reassembled package containing the substituted powder. He found the premises to be unoccupied and he placed an Australia Post “postal item to be collected” card on the front door of the premises alongside the note placed on the door earlier that day by the offender.

19 At about 2.25 pm on 13 July 2005 Federal Agent Perisa returned to the premises at 534 Young Street in Albury and he spoke there with the offender and he handed over the reassembled package to her, for which she signed.

20 The offender took the package into the premises at 534 Young Street in Albury and, after removing the shipping labels with a pair of scissors, she left the premises, taking the note that she had placed on the front door, the card that Federal Agent Perisa had placed on the front door and the shipping labels that she had removed from the package with her, but leaving the package and the pair of scissors inside the premises.

21 At about 2.30 pm on 13 July 2005 the offender left the premises at 534 Young Street in Albury and she entered her car and drove it into the shopping centre of Albury at where, after she had parked her car, she was arrested by Federal Agent S King. Her note, the Australia Post card, the shipping labels and other personal documents were found inside her car and they were seized by Federal Agent King.

22 At about 2.56 pm on 13 July 2005 Federal Agent Perisa returned to the premises at 534 Young Street in Albury and, after entering the premises, he found the reassembled package and the pair of scissors lying on top of it. The package and the pair of scissors were seized by Federal Agent Perisa.

23 After being arrested, the offender was taken to Albury Police Station, at where between 2.50 pm and 4.26 pm, she was interviewed by Federal Agent A Nolan. During this interview, the offender told Federal Agent Nolan the “story” that she and Thomas had concocted to tell if asked questions about the package.

24 After being interviewed, the offender was charged with the subject offence, that of attempting to possess goods that had been imported into Australia which were prohibited goods, namely cocaine, contrary to section 233B subsection 1 of the Customs Act, and, after being charged, she was refused bail and remanded in custody.

25 On 18 July 2005 the offender appeared before a Magistrate in the Local Court at Albury on an application for bail, and she was granted conditional bail.

26 On 21 July 2005 the offender was released from prison on conditional bail. She had spent nine days in prison between her arrest on 13 July 2005 and her release on bail on 21 July 2005.

27 On 10 February 2006 the offender appeared before a Magistrate in the Local Court at Albury for a committal hearing. The solicitor representing the Commonwealth Director of Public Prosecutions and the solicitor representing the offender, had agreed that a witness, a Mr C Towers, of the Australian Federal Police, was to be examined and cross examined on his examination of data recovered from the offender’s computer. After this was done, the offender was committed to appear in this Court in Albury on a date to be fixed for her trial.

28 On 18 October 2006 the offender appeared before me in the Court in Albury to stand her trial. The Crown Prosecutor presented an indictment which charged the offender with attempting on about 13 July 2005, to possess goods that had been imported into Australia, which were prohibited goods, namely a quantity of cocaine, being not less than the trafficable quantity applicable to cocaine, contrary to section 233B subsection 1 of the Customs Act. The offender pleaded not guilty to the charge. A jury was empanelled. The jury heard evidence from seven witnesses, including the offender, and it received 25 exhibits, 21 presented by the Crown Prosecutor and four presented by the offender’s counsel, over the first three days, counsel’s addresses and my summing up over the fourth day and it returned its verdict of guilty on the fifth day of the trial. After taking the jury’s verdict, I remanded the offender in prison bail refused pending sentencing.

29 On 25 January 2007 the offender appeared before me in the Court in the Downing Centre in Sydney on the sentencing proceedings. After receiving documentary material from the Crown Prosecutor and the offender’s counsel, and after hearing evidence from the offender and submissions as to sentence from counsel, I stood over the sentencing of the offender to 4 April 2007.

30 Today, 5 April 2007, the offender has appeared before me in the Court at Gosford for sentence.

31 The offence committed by the offender is, as I have said already, an offence contrary to section 233B of the Customs Act, for which the prescribed penalty is imprisonment for a maximum of twenty-five years or a fine of a maximum of $550,000 or both.

32 It is beyond argument that the offence is a very serious one. The prescribed penalty is an indication of the seriousness with which Parliament, representing the will of the community, regards the offence. It is an offence for which the only appropriate sentence, except perhaps in very exceptional circumstances, is one of imprisonment to be served on a full time basis.

33 The Crown Prosecutor submitted that the offender’s role in the importation of the cocaine was greater than that of a courier, whereas the offender’s counsel submitted that, however the offender’s role is described, it was at the bottom of the ladder of the hierarchy of drug importation. I agree with the Crown Prosecutor. I consider, having regard to the content of her email transmissions and to what she did, that the offender was more involved in the importation of the cocaine than a courier, with her involvement being determined by what she did.

34 Although the evidence does not allow me to say what the offender was to receive for her participation in the importation of the cocaine, I suspect that her reward would have been greater than the amounts of money that she received from Thomas.

35 The offender’s counsel submitted that, although she did not plead guilty, the offender assisted in the speedy trial by admitting many facts thereby saving some time in costs, for which she is entitled to a discount in penalty. I agree with this submission. The course taken by the offender was a sensible one, which considerably reduced the length of the trial thereby saving time and costs.

36 The offender’s counsel submitted that the onerous conditions of the offender’s bail greatly restricted her movements and life style between 21 July 2005 when she was released from prison on bail and 18 October 2006 when she appeared before me to stand her trial, for which she is entitled to a discount in penalty. I agree with this submission. Although the offender’s movements and lifestyle were not as restricted on bail as they would have been had she been in prison, she is entitled to have the onerous conditions of her bail taken into account in her favour in the determination of an appropriate sentence.

37 The offender’s counsel submitted that the offender has learned a salutary lesson from doing what she did and that, having regard to her past and what she has done in prison, she has excellent prospects for rehabilitation and she is unlikely to re-offend. I agree with this submission. The offender had a previously unblemished character. She has made good use of her time in prison. She has her family support. I accept that she has excellent prospects for rehabilitation and that she is unlikely to re-offend.

38 One matter which must not be overlooked or undervalued is deterrence. Although personal deterrence is not as important in this case as it might be in another case, because, as I have said, I think that the offender is unlikely to re-offend, general deterrence is important. People who import prohibited drugs, whatever be the drug, whatever be the amount of the drug, and whatever be the method of importation, must be made aware by sentences imposed upon people caught importing prohibited drugs that a prison sentence is the consequence of being caught, and must thereby be deterred from importing drugs.

39 What, then, having regard to what I have said about the offence and the offender, is an appropriate sentence to impose upon the offender for the offence of which the jury found her to be guilty?

40 The Crown Prosecutor drew my attention to R v Wong and Leung (1999) NSWCCA 420, R v Mas Rividavia (2004) NSWCCA 284, and R v Paliwala (2005) NSWCCA 221, amongst others, and the offender’s counsel drew my attention to R v Haidar (2004) NSWCCA 350. There are many decisions of the Court of Criminal Appeal in relation to appeals from sentences imposed on offenders who import prohibited drugs into Australia. Often each decision turns on its particular facts. However, having said that, I have considered the underlying principles stated in the decisions to which I have been referred.

41 Balancing as best I can what I have said about the offence and the offender, I have determined that the appropriate sentence is imprisonment for ten years, with a non-parole period of six years and a parole period of four years. The sentence will commence nine days before 23 October 2006, that is on 14 October 2006.

42 Accordingly, Jennifer Mary Milich for the offence of attempting to possess a quantity of cocaine imported into Australia, contrary to the Customs Act, of which the jury found you to be guilty, you are convicted. I sentence you to imprisonment for ten years. I fix a non-parole period of six years, from 14 October 2006 to 13 October 2012, and a parole period of four years, from 14 October 2012 to 13 October 2016. I order that you be subject to supervision whilst on parole during the parole period by the Probation and Parole Service. I order that if not already destroyed, the drug be destroyed. You may return Miss Milich to custody.

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