R v Miller

[2015] NSWDC 380

District Court

New South Wales

Medium Neutral Citation:	R v MILLER [2015] NSWDC 380
Hearing dates:	02/10/2015
Decision date:	09 October 2015
Jurisdiction:	Criminal
Before:	Judge S Norrish QC
Decision:	Sentenced to 6 years and 6 months imprisonment with a non - parole period of 3 years and 7 months
Catchwords:	CRIMINAL - Sentence, importing a commercial quantity of a border-controlled drug - 3,4 methylenedioxymethamphetamine, non-exculpatory duress.
Legislation Cited:	Crimes Act (Cth) 1914
Cases Cited:	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] NSWCCA215
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) – Crown William Thomas Miller - Offender
Representation:	Counsel: Director of Public Prosecutions (Cth) - Crown Mr Sutherland SC - Offender   Solicitors: Director of Public Prosecutions (Cth) - Crown Eidan Havas & Associates - Offender
File Number(s):	2014/369738

SENTENCE

1. HIS HONOUR: William Thomas Joseph Miller today appears for sentence in relation to an offence that he committed on 7 December 2014 in contravention of Commonwealth law.

2. The offence that he committed, shortly stated, was an offence of importing a commercial quantity of a border-controlled drug on 7 December 2014 at Sydney, an offence for which he was arrested and he has remained in custody since the date of his arrest. The border controlled drug was 3,4-methylenedioxymethamphetamine, as it is referred to in the facts and the charge particulars, otherwise known as MDMA.

3. It goes without saying importing a commercial quantity of a border-controlled drug attracts significant penalties. The maximum penalty for this offence is imprisonment for life and/or a fine of 7,500 penalty units.

4. The prisoner is now aged 30 and was thus 29 years of age at the time of the commission of the offence, having been born on 31 May 1985.

5. It should be said from the outset that by and large the facts, save for one matter and the subjective circumstances of the prisoner and the general legal principles to be applied are essentially not in dispute.

6. Dealing with the facts of the matter and the character of the offending I am required, I say from the outset, of course, to sentence the prisoner in accordance with Part 1B Crimes Act (Cth) 1914.

7. Particularly I am to have regard to s 16A, amongst the other provisions within the Part. I am required to have regard to imposing a sentence or making an order that is of a severity appropriate in all the circumstances of the offence. The learned counsel representing the Commonwealth Director’s interests, professionally in this matter, has drawn my attention to long standing authorities such as El Karhani, which reflects upon the fact that the sentencing the offenders for breaches of Commonwealth law requires consideration, notwithstanding no express reference to it in s 16A, of general deterrence as a relevant matter. Clearly that must be so in a case of this seriousness, particularly relating to border-controlled drugs.

8. I will come back to the detail of the Crown’s submissions and the defence submissions as they touch upon these various matters, but I am required, as I understand the matter, by reference to s 16A(2) on the facts of this case to have regard to the nature and circumstances of the offence, the degree to which the prisoner has shown contrition for the offence, the fact that the prisoner has pleaded guilty, that fact, the degree to which he has cooperated with law enforcement agencies in the investigation of the offence, the deterrent effect that any sentence or order may have on the prisoner, the need to ensure that the prisoner his adequately punished for the offence, his character, antecedents, age, means, physical and mental condition, his prospects of rehabilitation, the probable effect that any sentence or order under consideration may have on his family. He has a mother who is somewhat dependent upon him, but she could not reasonably categorised on the evidence available to me as a “dependant” in the strict sense.

9. Those matters will be taken into account and will be referred to in my reference to the evidence. But I also note by reference to s 16A(2) that other matters I take into account, although they require no further explanation, are there are no other offences required to be taken into account, that the offence does not form part of a course of conduct consisting of a series of criminal acts of a similar character, there is no relevant victim of the offences committed by the prisoner and although potential harm would be done to the community by the importation of the relevant border-controlled drug there was no injury, loss or damage resulting from the offence. I am also required to note that the prisoner has not failed to comply with any particular obligation cast upon him, although it is not a critical matter in this sentencing exercise.

10. The prisoner, as I understand it, is a native of London. He is a British citizen and he came to Australia on 7 December via Dubai, carrying a British passport and possessing an electronic tourist visa. The facts set out the circumstances of his entry to the country and the fact that he, filled in an Incoming Passenger Card (IPC) which had material untruths in them.

11. He told the Customs officials that he was an ‘event planner’, that he was intending to visit friends or relatives, that he was staying at the Meriton at Bondi, that he had no prior criminal convictions and that he was not bringing into the country any relevant prohibited item, particularly “illicit drugs”. He also indicated that the bags that were with him were his own bags and he had packed his own bags. A cursory search of one bag, a black soft carry-on bag as it is described, was undertaken which located a book within which was a clip seal bag containing a small amount of white powder. The prisoner initially said that he did not know what it was. As I would understand it, it was the remnants of a drug that he had ingested at some time during the trip. I point out that that particular powder was tested to destruction, but no positive results were obtained. He said he did not know where the powder came from. It could have belonged to someone that he lived with and he did not know what the powder was. The finding of the powder, of course, aroused suspicions. The prisoner asked to be moved to a private room and, as was pointed out in the course of his evidence this was the point at which he realised that he was to be searched and he was prepared to volunteer the information in privacy that he was, in fact, carrying something on him that he should not have, other than the clip seal bag to which I referred.

12. A few minutes after he asked to be taken to a private room he said that something was in his bag “I’m pretty sure I know what it is”. The prisoner was cautioned. A drug detection dog was brought into action, indicating a positive reaction to the contents of the prisoner’s baggage and a short time later the prisoner went to a room where he was interviewed by the use of an electronic recording device, and I have seen a transcript of that device’s recording. The prisoner indicated that he wished to speak to a legal practitioner, he would like to obtain legal advice, which is fair enough. But in the course of the conversations he had with the Customs officers he made a number of admissions after being cautioned. He admitted that he was carrying a “parcel” that he was asked to bring to Australia. He said that he believed that it was ketamine inside a neck pillow, and that he had been asked by a man called Andre to bring it into the country. He indicated that he was to be picked up by someone outside the airport and that was the reason that he had no money or phone. It was the fact that he revealed the person he understood that was to meet him at the airport was a person called “Dave” and that he, the prisoner, had about $100 in his possession.

13. Further enquiries ultimately revealed that the neck pillow to which I referred within his baggage contained dark shadows, which subsequently were identified to be four wrapped packages containing the border controlled drug the subject of the charge. The prisoner was subsequently further spoken to by Australian Federal Police and cautioned. He sought to obtain legal advice and consular assistance. He admitted consuming drugs on the flight to Dubai from London.

14. The neck pillow was examined and ultimately an off-white crystalline substance was removed from within the packages weighing a gross weight of 1.9837 kilograms or 1,983.7 grams. It was found to have a purity based upon the usual procedures of 69% and the total pure weight is calculated to be 1.3687 kilograms, or 1,368.7 grams. The facts state that the wholesale value of the MDMA imported is estimated to be between $81,150 and $135,240 and the “estimated street value” of the MDMA is estimated to be between $405,750 and approximately $676,000. Obviously what the prisoner brought into the country was a valuable commodity.

15. With regard to the objective facts I bear in mind the information provided by the Crown as to what constitutes for the relevant purposes a commercial quantity of the border-controlled drug MDMA at law.

16. Having regard to all of the evidence of the matter, including the evidence of the prisoner given during the course of the prisoner’s sentence proceedings and, of course, the facts provided by the Crown, it is clear that the prisoner was the importer of the border-controlled drugs. I am ultimately satisfied that he was acting as a courier on behalf of others at the request or direction of others, about whom I will speak shortly. The critical issue in sentencing the prisoner, having regard to all the evidence available to me, was whether the prisoner acted under what has been described in submission and in recent decisions of the Court of Criminal Appeal as “non-exculpatory duress” a topic that was considered and discussed by his Honour Johnson J in the case of Tiknius v The Queen [2011] NSWCCA215. Particularly I have regard to the judgment at [30]-[54].

17. In relation to this issue the prisoner, as I said, gave evidence that has to be considered on the basis of the facts as established from the Crown’s statement of facts and in that regard I bear in mind, as was raised with the prisoner in the course of the cross-examination of him, the fact that he did not raise any issue of “duress” when he did exercise his right to speak, as recorded in the taped conversation with Customs officers when he was spoken to in the private room. Tiknius is authority for the proposition that non-exculpatory duress is a relevant matter in a sentencing exercise under the Commonwealth Crimes Act. Tiknius was a case concerned with the importation of border-controlled drugs. Mr Tiknius was a person who gave evidence of various threats made against him and members of his family in his native country of Lithuania. Johnson J, on considering the relevant Commonwealth provisions, concluded that even where duress had not been made out as a defence to the charge, in sentencing it was a relevant matter to take into account, expressed as “non-exculpatory duress”.

18. Amongst a number of observations, Johnson J said that it would be necessary for the sentencing judge to make factual findings as part of the assessment of whether this factor assists a prisoner on sentence, and if so to what extent. He analysed the character of non-exculpatory duress and he pointed out quite properly that there are a large number of cases where an offender claims on sentence that his or her involvement in a drug importation or supply offence was a product of threats to him or herself and/or his or her family, with threats sometimes coupled with the demands by those making the threats that the involvement in the importation can lead to the discharge of an existing debt. He said quite obviously that whether that is accepted depends on all the facts of a particular case. He pointed out quite properly that courts approach such claims with a significant degree of circumspection. He noted that such claims can be easily made concerning the alleged conduct of persons who are not amenable to justice in this country who had applied the pressure allegedly to an offender. The verification, of course, of these matters can be difficult one way or the other. He pointed to the need for careful and close assessment of the evidence and he also said that even when non exculpatory duress had been made out general deterrence will have a role to play. In fact, greater weight may need to be given to general deterrence, notwithstanding the existence of this factor, to discourage others from succumbing to these pressures. I have noted everything that his Honour said and particularly am aware of the circumspection that one must exercise in this situation.

19. I have had, without having counted them, at least three such claims in this Court in the last 6 months or so. Two Chinese importers of drugs, or persons involved with the importations of drugs, and a Mexican American man who brought cocaine into the country, or methylamphetamine I cannot remember now, under what he claimed were threats made to him.

20. Coming back to the facts of this case. The prisoner gave evidence of having worked as a roofer or a roofing contractor for a number of years, and I have taken into account his general evidence of his background and his involvement and industry in that trade since the age of about 15. He had, I would just point out by way of background, worked with his purported father, a person he discovered at the age of about 12 was, in fact, not his father, but his stepfather, if I might call him that. This person had died in a scuba diving accident with the prisoner was 18 or 19, and he, having worked at that stage two or three years with that man, had to try and continue that business with limited success. In any event he had just finished a contract, he said, in mid-2014 and was able to obtain a payment in some form of lump sum in the order £5,500. He said he lent £2,300 to a friend, who ultimately reneged on the debt and by about November 2014, perhaps October, discovered that he was in debt to a man that he had nominated as ‘Andre’ who had been associated with him over a period of about nine years and had from time to time supplied him recreational drugs for his personal use. The debt was made up of £400 in gambling debts from three gambling sessions with Andre and some other people and £1,200 for drugs that he purchased for himself. He had been able to, if I might use the expression, ‘tick-up’, without having to pay anything previously when dealing with Andre to obtain drugs. He had not incurred any debts greater than two or three hundred pounds. He found himself in the position, having not worked for a number of months, although part of that time being in Australia on a previous trip, not able to pay the money that had been said to be owed to this man Andre. He understood that Andre knew that he had been to Australia, as emerged in cross-examination, two times between 2013 and 2014 and Andre suggested that he would take ‘drugs’ to Australia on his behalf.

21. He was threatened initially by Andre in a conversation relating to both the debt and the proposition that he would take drugs to Australia. Then on another occasion he was assaulted by Andre, being grabbed by the neck and pushed to the ground and he claimed kicked in the body. For him, based upon Andre’s attitude, the fact that he was indebted to Andre and he had no means of clearing the debt, although it is not fully explained how he could not return to roofing work, the message was clear. After the ‘kicking’, which occurred apparently somewhere near his home, there was no further threat, because by that stage he agreed to undertake what Andre had proposed. There had been an implicit threat that he took to be a threat to his mother and possibly his half-brother, that Andre said that he knew where his family lived. He said fearing for the safety of his mother and his brother he agreed to the proposal, although he thought the drugs were Ketamine, consistent with what he told the Customs officers. As I understand the assault upon him that occurred about two weeks or slightly more before he flew top Australia.

22. A business class ticket was purchased for him to fly to Australia via Dubai and an economy class ticket was booked for the flight back. Initially booked to occur approximately 12 days after he arrived. He was only given though $300 in spending money. Presumably he was paid that money in pounds and he changed that money, as I remember his evidence not having a transcript of it, at London Airport. By the time he arrived in Australia he had about $100 left over, and he had purchased some duty free items in Australia as he passed through the duty free shops, as I would understand his evidence, presumably to make himself look less conspicuous. He understood by doing all this his debt to Andre would be forgiven.

23. The day he left London he was photographed in the clothes that he would be wearing on the flight and given the neck pillow which held the relevant drug. As I said, he had some small amount of drug in his possession which he ingested on the flight to Dubai.

24. I am not favoured with any evidence as to what an equivalent volume of the drug ketamine would be worth. In other words if it was ketamine would it be worthwhile paying a business class fare and an economy class fare and forgiving a £1600 debt to make the trip. Ultimately, I have no reason to disbelieve the prisoner’s belief that what he was carrying was ketamine. It was not a matter of any discussion by either of the parties in the presentation of their respective cases. The prisoner said that in fact he was not going to stay in Australia for 12 days. He hoped to return to Britain a day or two after his arrival, and that is consistent with his lack of means of support when he arrived in Australia. He certainly did not agree that he was in Australia for some paid holiday.

25. In some respects he was an unlikely drug courier. For a start he had a number of findings of guilt or convictions in relation to drug possession in Britain, confirmed in a letter from Manchester Interpol which I have just recently discussed with the learned Crown Prosecutor and the defence counsel. As I would understand it he was charged with possession of a controlled drug on 3 February 2008. It is called a class A drug and described as MDMA. He was charged on 25 July 2008 with possession of a class A drug and a class C drug and he was also charged on 22 June 2011 with possession of a class B drug, being cannabis, all being offences of a minor nature, obviously dealt with without any term of imprisonment being imposed. These convictions reveal him to be a user of particular drugs, but they do not, in my view, suggest that he, the prisoner, is a drug supplier within Great Britain. He did not declare these convictions, if I might call them that, when he entered Australia. He obviously ran the risk of detection if local screening methods were able to pick up from his passport details any recorded convictions in his home country. Perhaps, although I do not know this, his failure to declare the convictions is what attracted Custom’s interest in the first place.

26. Further, he also had in his possession and easily found, a small amount of white powder which would immediately arouse suspicion and inevitably lead to a thorough search of his baggage one would have thought. On might have thought if one was importing into this country a significant quantity of drugs as he did it was most unwise to be carrying a small amount of a drug that could easily detected with a cursory search of his baggage.

27. He had no mobile phone, as I previously mentioned, and he had little or no visible means of support on his arrival in Australia, being entirely dependent on another person who he did not know.

1. I have taken into account what arose in cross-examination about his prior trips to Australia, as I understand it in July 2013 and July 2014. I have taken into account the evidence given by the prisoner on cross-examination of a number of trips to the island of Ibiza, which is well known as a type of party island, particularly for British citizens. One of those trips was revealed to be an overnight trip, although he volunteered in cross-examination, and it was not led from him in-chief, that he had attended upon that island overnight in order to bring a friend back from Ibiza who had died. He denied that those trips were related to drug activity. Based upon the evidence he gave notwithstanding the propositions he accepted from the cross-examination I could not conclude from this history of travel that the prisoner is a professional drug courier or that those trips have anything to do with drug importation. There is a suspicion about these matters, of course, but ultimately I could not conclude adverse to the prisoner some inference damaging to his credibility or damaging in the assessment of the objective facts.

2. There is evidence in the references he has produced from one person that of the prisoner being groomed as a “event planner”, which I take to be some form of “party planner” and the prisoner’s connection with Ibiza in that capacity. It does not require much imagination to understand that if one is attending parties in Ibiza that a drug such as MDMA might be consumed.

3. Also the prisoner produced a reference from a friend who lives in Australia and has lived here for some time, who he had encouraged to come to Australia to further her career. That matter is a relevant matter to the assessment of his previous trip to Australia.

4. He was also pressed by the Crown as to his lack of knowledge of Andre’s surname, his claim of injury from the assault upon Andre which he did not declare to customs officers nor claim any duress on the part of Andre. I have taken all the relevant matters that emerge from the evidence and the submissions on this topic. I have come to the conclusion on balance in his failure that he did commit the offence under a direct infliction of force and the threat of injury to himself and implied or in direct threat of harm to his family if he did not comply with a request to import drugs. I am prepared to accept that he had a significant drug debt although as his lawyers no doubt would have told him, and as the Crown and his lawyers well know, there is time honoured authority in Australia that simply to commit a serious crime to have a significant debt forgiven such as a gambling or a drug debt is not a matter in mitigation. It needs to be seen for what it is, a financial benefit provided albeit to clear past indebtedness.

5. However, even accepting his account in general terms that he did not enter into this agreement in a considered way for commercial gain only, the use of violence and the threat or fear of further violence was not as extreme as other matters that the courts see and certainly of not such a character in its context to render him incapable of seeking redress either through the authorities in Great Britain or, to my mind more reasonably, to the authorities in Australia. The true character of his milieu, if I might call it, in London is not revealed by him. I cannot criticise him for that. He said he had contact with this purportedly “violent drug dealer” for some period of time and was not adverse to having a relationship with him. Whether he regularly comes in contact with drug dealers or violent people is something about which I could only speculate. It appeared to me from his evidence that his contact with Andre was a commonplace experience for him. But it ordinarily may not be a commonplace experience for law-abiding citizens of reasonable firmness who respect the laws of Great Britain, and are capable of reporting threats or assaults and can resist the temptation to import prohibited drugs, if I might call them that, into this country or other countries.

6. The prisoner I am quite satisfied on his own version of events had no doubt that he was performing an illegal act and this was exemplified by his conduct on entering Australia and falsifying the information he provided to the authorities. He also knew that he was in a great deal of trouble as the searches of his baggage became more intense, and recognising this and I take this into account to his credit rather than stonewall he did exhibit a limited degree of co-operation. I accept in terms of revealing relevant information he did not have a great deal of opportunity to reflect upon how much information he could give at that particular time. Of course his co-operation is not of the type that warrants any form of discount, but I note his willingness to assist the authorities. Of course they had him ‘over a barrel’. They could search him ultimately whether he consented or not.

7. If the prisoner at some point felt that he was bound by some form of code of honour in not giving up his supplier, or anybody else for that matter, he did not say that that was so.

8. I have taken into account not only the matters that I have adverted to, but I have also taken into account in assessing this issue matters that seem to me to be unsatisfactorily answered by the prisoner. He told me that he did not know Andre’s family name. I cannot accept that assertion assuming that Andre’s first name is correct. If the prisoner in open court can reveal the threats of violence it is difficult to understand why the full name of his recruiter was not disclosed save for the explanation that the prisoner refused to do so perhaps out of fear of consequences. He may still be fearful of repercussions on his return to Great Britain or he may be deliberately covering up for the recruiter. Either way however I cannot accept his account that he did not know the family name or the surname of a person with whom he had contact over nine years. He did not need Andre to tell him. He could have found it out from other people or made inquiries about, and of course it just seems ridiculous that he should suggest that he would travel all the way to Australia to commit a serious crime on behalf of this person without knowing this person’s surname. That having been said, I otherwise found him to be a reasonably impressive witness and I am prepared to accept his evidence about his personal circumstances, his background and the matter relating to non-exculpatory duress that I have found in his favour.

9. If I might just briefly refer to Tiknius the learned sentencing judge in that matter did not give recognition to the duress that she found as a fact had been established on the evidence. Mr Tiknius was a man who came from Lithuania. One of his recruiters was armed with a firearm. The other person, Mr Tiknius believed as the Crown found it, had a corrupt relationship with Lithuanian police. Tiknius had been directly threatened with death. He had a gun pointed to his head and been told his girlfriend would be raped. He was specifically told not to go to the police. Of course it is quite clear when one looks at the evidence of Mr Miller, the threats made to the prisoner were nowhere near as extreme as this, and the implied threat to his family was nowhere near as specific as the threat made to Mr Tiknius’ girlfriend. As I understand his evidence there was no specific warning about not going to the authorities although clearly that would have been implicit in what had occurred. He said he was beaten up. Accepting that for the moment, he did not, it would seem, require any substantial medical treatment in Great Britain. He has not produced any evidence in that regard. He was well enough to travel to Australia on a lengthy international flight and made no real complaint about injury when arrested. Although I am told that he did complain about injury when in Corrective Services custody.

10. In Tiknius an examination of the matter ultimately led the Court of Criminal Appeal to conclude that there should be a reduction of the principal sentence for the most serious offence from ten years imprisonment taking into account all relevant matters to eight years imprisonment. In relation to the less serious matter there was a reduction of one year, from six years to five years imprisonment. The total sentence imposed by the learned sentencing judge at first instance was 11 years. That was reduced as I understand the judgment in Tiknius to nine years in recognition of all the matters her Honour found and the mitigating characteristic of non-exculpatory duress. There was a specific submission made by the learned senior counsel for this prisoner, the subtlety of which I must confess I missed at the time, that the case of Tiknius served a comparative sentencing purpose. Initially I understood that to be a submission about the total sentence imposed. But I now understand the submission to be that that judgment, and the treatment of the matters before the court in material terms, provided some measure of the extent of mitigation afforded to non-exculpatory duress in that matter.

11. I appreciate of course in any comparative sentencing exercise one should not be fixated on one case. In RCW (No 2), a recent decision of the Court of Criminal Appeal from within the last couple of years a Judge of my Court was criticised for in dealing with comparative cases fixating, if that is the correct expression, on only one case to provide some measure of the appropriate sentence in the case at bar. However decisions of the Court of Criminal Appeal obviously provide guidance and assistance in structuring sentencing discretion. I will come back to the issue of comparative sentencing in a more general sense when I deal with matters raised in the Crown’s submissions. But having regard to the decision in Tiknius and having regard to my decision to recognise on balance the existence of non-exculpatory duress as a mitigating factor, taking into account all else said by Johnson J, I have had regard to Tiknius as providing some general indication of the way in which that mitigation can work. However, of course, I am required in sentencing to apply what are called ‘Markarian’ principles from the decision of the High Court in 2005, such as that of Justice McHugh, and thus ‘instinctively’ or ‘intuitively’ synthesise all relevant matters. This is not a matter that calls for a discrete recognition of that mitigation.

12. The prisoner’s evidence about his circumstances in part I have referred to and details of his background and his upbringing are cited in the report of Mr Borenstein, the clinical psychologist who prepared a report in relation to this prisoner dated 6 June 2015. I have taken into account that history the prisoner adopted in his evidence and gave some specific details about it. He was not required to go into greater detail given his adoption of the detail of his background. I accept the prisoner was greatly affected by learning of the true identity of his stepfather as not his real father. This had an effect upon his education, but ultimately he reconciled with his stepfather and went into business with him as I have earlier pointed out. He had some difficulties after his stepfather’s death when he was 18 or 19. I am prepared to accept he has been a good worker and has a strong work ethic. He has been a user of, what we would call in New South Wales, prohibited drugs over a period of time. He has been treated with anti-depressant medication for the treatment of symptoms of depression in March 2013 and January 2014. The clinical presentation to the psychologist was of a person with some ‘affective symptoms’ but there was no psychotic or other mental disturbance.

13. It should be pointed out that his counsel did not submit to this court that there was an existing mental illness or mental disability which was causally related to the offending which would warrant consideration of those various principles that are set out for example in the decision of Justice McClellan CJ at CL in the decision of DPP v De La Rosa, [2010] NSWCCA 194, at [177-178]. But De La Rosa does have significance in this case for another reason. The prisoner’s life in London over 2013 and 2014 had led to some as I said depressive symptoms requiring some medication. The prisoner is not receiving any psychiatric treatment in custody nor does he need it. He is a person who is endeavouring as he said in his evidence to make the best of a bad situation by getting fit and looking after himself, keeping a low profile and staying out of trouble.

14. His use of MDMA and cocaine as referred to in the report as having an effect upon him not in a positive way highlights the damage that drugs can do to people. The psychologist reflects upon his risks of relapsing into depressive episodes which I have taken into account, but I bear in mind his current stable condition there is no suggestion that his conditions in custody are affected at all by any past symptoms he has suffered. He needs to be aware of the risk of recurrent depressive episodes. He requires some counselling and assistance which I have taken into account in respect of his sentence and the fixing of the non-parole period. He has also produced a number of references from family members, family friends and other people that know him either in business or personally. What emerges from this material is consistent with the account he gave of his circumstances of offending. He is a loyal person, particularly loyal to his mother for whom he feels very protective bearing in mind her former partner had died some 12 years ago. He has been responsible for her financially. He has been responsible for his half brother as well and tried to support his family as best he can. He is regarded as a friendly man who is loyal and supportive of his friends.

15. He plays a role at his local community, apparently assisting at a community centre particularly in the ‘sweet science’ of boxing. He is also regarded as honest and trustworthy in his business dealings and is regarded as an industrious and skilled roofer. Some of the referees I hasten to say do not appear to have much knowledge of some aspects of his background. One referee referred to this matter with which I am concerned is his “first offence” and having a “clear record”. But the offending that I have discussed earlier really just provides some context for understanding how the prisoner could come to be involved with people responsible for planning this particular importation.

16. I have referred to the reference from the event planner who also speaks of his good character and his positive dealings with that person. A number of references reflect upon his remorse for his actions both from family members, including his mother and family friends. A number of people refer to their shock and dismay at him being charged in relation to such a serious offence. Certainly this is by far the most serious offence that he has committed and many express the hope of leniency being extended to him. I have taken all that evidentiary material into account as I have earlier indicated.

17. With regard to the submissions that were made by the parties the Crown provided, as is always the case in Commonwealth matters, very extensive written submissions and the learned Mr Sutherland SC appearing for the prisoner in his oral submissions concentrated primarily on the issues that arose from the evidence. Naturally I am required to have regard to the maximum penalty and assess the criminality in the context of the maximum penalty as a yardstick for the appropriate sentence. I am required to give full recognition for the time that the prisoner has spent in custody and I will do that by commencing the sentence from 7 December 2014. As I have earlier pointed out I am required to take into account Part 1B of the Act. I have dealt with the nature and circumstances of the offence and I have taken into account in that regard the value of the prohibited drug as it is estimated in the facts. It is clear that this is a case for financial gain but certainly I could not conclude that the prisoner was to share substantially any profit that could be made from his endeavour, and I have already identified what financial gain he was to receive. I have dealt with the issue of non-exculpatory duress and I accept in recognising that factor and all the other factors the need for an element of general deterrence in the sentencing that I undertake at the moment.

18. There are a number of matters arising in the Crown’s written submissions that I need to particularly address. Firstly, in respect of showing contrition in relation to the matter I am prepared to accept the prisoner is contrite. There was some element of contribution in his co-operation with the investigators to the extent that he did co-operate. There is evidence of contrition in his plea of guilty and he gave evidence of his contrition before me. I accept on balance that he established that he has relevantly shown contrition for the offence. With regard to the plea of guilty I am required to recognise that and am entitled to consider a discount to recognise aspects of that plea of guilty. I may do so if it demonstrates mitigation in the character of genuine remorse, acceptance of responsibility or a willingness to facilitate the course of justice. I am satisfied of those matters. I am mindful of the detail and written submissions made by the Crown about this matter. I am mindful of course that the court is not to recognise by any discount the ‘utilitarian benefit’ of the plea of guilty. It is fairly said, as the Crown points out in that latter regard, that the Crown case against the prisoner was overwhelming. That having been said I have determined that I should grant the prisoner, consistent with many authorities of the Court of Criminal Appeal, including of course De La Rosa which I will come back to in a moment, that I should afford the prisoner a 25% discount to recognise his remorse, acceptance of responsibility and his willingness to facilitate the course of justice. I have noted the history of the matter from the Crown’s written submissions. The prisoner pleaded guilty approximately three months after his arrest at the Local Court and was committed for sentence. With regard to co-operation I have already noted that of course there is no discount that he is entitled to and it has not been sought.

19. With regard his antecedents and background I have already summarised the evidence in relation to that including his criminal antecedents. The Crown refers to his past findings of guilt as I would describe them in 2008 and 2011 as being matters relevant to ensuring that he is adequately punished, which is correct, and also as matters to be considered in assessing the deterrent effect of any order that I make upon him. I do take those findings of guilt into account in that respect but they, to my mind, are minor matters. This is not a case where there is an extra element of personal or specific deterrence required because the prisoner has by his previous conduct exhibited a “disregard” from a law that is meaningful or relevant to this sentencing exercise. He has findings of guilt for drug offences but very minor matters as the records reveal, such as they are. The criminal history really provides more assistance to the court in providing an explanation as to how he became recruited rather than reflecting upon the need for greater weight to be given in this particular case to specific deterrence.

20. But having said that of course I must impose a sentence that is a personal deterrent to the prisoner and I believe that a substantial term of imprisonment in Australia will be a deterrent to him. As I have already pointed out I have taken into account the report of the psychologist. I have accepted that the prisoner has come from a disadvantaged background and has had a number of burdens to overcome in his life. I accept that he is a loyal person to his family which is one of the reasons he succumbed to this threat from his recruiter. His drug addiction naturally is not a mitigating factor and the matters that arise from Henry v R particularly those discussed by Justice Wood at [273], (see R v Henry and Ors (1999) 46 NSWLR 346) are not of significance in this particular case. I am also mindful of the observations of Justice Latham in the decision of Le [2006] NSWCCA 136, particularly at [32].

1. I have concluded the prisoner has positive prospects of rehabilitation. So far as the effect upon his family of any penalty I impose I am mindful of some dependency upon him by his mother but there is not enough evidence for me to conclude any exceptional or special circumstances arise from that relationship. The prisoner has supported his mother and half brother but I point out from the facts available to me that he was in no real position to assist them materially from the time that he ceased work in the middle of 2014 until he came to Australia. But the matters arising from the evidence of the prisoner and the references are properly, as the Crown points out and it is conceded by Mr Sutherland, matters in the general mix of subjective factors as are of course the opinions of Mr Borenstein.

2. I am required to have regard to s 17A of the Act. No other sentence other than imprisonment is appropriate in this matter and I am also required of fixing a term of imprisonment of in excess of three years to impose a non-parole period and properly backdate the sentence which I will do.

3. In relation to the submissions of Mr Sutherland I humbly state at this point that I believe that I have dealt with the substance of them in my treatment of the issues that have arisen from the evidence. The primary matter the subject of discussion in submission from the learned Senior Counsel was directed at the relevance of ‘non-exculpatory duress’.

4. With regard to comparative sentencing I am appreciative of the fact that comparative sentencing can be of assistance to a court, certainly for this court decisions of the Court of Criminal Appeal are of great value in assisting us to reach a sentence that falls within an appropriate range for a particular type of offending. Certainly comparative sentencing is a more useful mechanism for checking where a particular sentence should lie having regard to all the circumstances of the case than statistics.

5. The Crown provided a ‘schedule’ which included about five, six cases from different states of the Commonwealth outside of New South Wales, Western Australia, Victoria and Queensland and two decisions of the District Court, and I appreciate the industry of the learned Crown. In fairness to myself I would have sentenced 10, 12 drug importers this year in various ways and in the last 15 years no doubt I would imagine well over a hundred. But I do not rely on my own judgment to check the correctness of any decision I have reached. In relation to the issue of comparative sentencing I raised with the learned Crown the issue of why there was no reference to the judgment of the learned Chief Judge at Common Law in De La Rosa. I am constantly finding in Commonwealth sentencing matters that the learned Chief Judge at Common Law’s analysis of a far greater range of comparative sentences than provided to me by the Commonwealth Crown is not referred to in the material provided by the Crown.

6. Be that as it may I have regard to the material provided by the Crown and the various cases therein cited. I have also had regard to the analysis undertaken by the learned Chief Judge at Common Law in the context of his observations about “the importance of consistency in sentencing”. And specifically I note what his Honour said at [193]-[224]. His Honour undertook an exhaustive analysis of a range of authorities both within New South Wales and interstate in an endeavour to ascertain, in the context of the case at bar which was concerned with the importation of cocaine, ranges of penalty for particular categories of offending. He identified what he described as four groups of offenders that might be categorised by reference to matters which need to be taken into account as they are here. Such as the pure weight of the relevant prohibited drug, the role of the offender, the antecedents of the offender, and other matters that particularly pertain to the assessment of the objective seriousness of the offending. In relation to his categorisation of offenders in the context of dealing with importation cases he identified four groups. He identified the fourth group, if I might call it this, as being those who have pleaded guilty, who were involved with quantities of drugs that ranged from one kilogram to 30 kilograms where offenders occupy roles variously described as instigators, overseers, collectors and couriers. Many offenders in this group had good antecedents and no prior convictions. The other groups that he identified usually were concerned with people more substantially involved in the organisation of the importations. He identified a range of sentencing between 6.25 years through to eight years. Acknowledging that there were varying discounts given for pleas of guilty. I have had regard to His Honour’s detailed analysis in conjunction with the analysis of the summaries of the cases provided by the learned Crown.

7. As I say in the context of sentencing in this Court I could refer to a hundred or two hundred cases not of my own but of other judges that have been brought to my attention over recent years. Of course every case has to be decided on its own facts. There is no ‘Code of Hammurabi’ which identifies a precise sentence having regard to all relevant characteristics from a particular offender and a particular offence.

8. Thus, having regard to the matters that were advanced by the parties and the matters I have identified in my reasons I have concluded ultimately that the sentence I should impose upon the prisoner with a discount that I have identified should be six years and six months to date from 7 December 2014. I cannot of course direct the prisoner be released to parole that will be a matter for the Commonwealth authorities in conjunction with the New South Wales authority in the usual way.

9. Are there any other matters Madam Crown from your perspective?

10. ALLES: No your Honour.

11. HIS HONOUR: Any other matters from your perspective Mr Dib?

12. DIB: No your Honour.

13. HIS HONOUR: Could you stand up please Mr Miller. In relation to the offence to which you have pleaded guilty you are convicted. You are sentenced to a term of imprisonment. It can be expressed in various ways but I will express it this way for you, you are sentenced to a term of imprisonment of six years and six months. That will date from 7 December 2014. That sentence will expire on 6 June 2021 on my calculation. The non-parole period I fix is three years and seven months. That will commence on 7 December 2014 and will expire on 6 July 2018. Thus on 6 July 2018 you will be eligible for parole. In fixing the non-parole period I have taken into account your prospects of rehabilitation but in light of your drug use I have taken into account the matters that are relevant for the assessment of a non-parole period as discussed in decision of the High Court such as Bugmy, Power and the like as well as many decisions of the Court of Criminal Appeal. I particularly had regard to the more recent decision in this regard of Hili and Jones, a case the Commonwealth Director of Public Prosecutions referred to in the written submissions.

14. But of course the reality in your case is that you will be released to parole to be deported to Great Britain. But I should tell you under Australian law that does not deny you the benefit of the matters that need to be taken into account in fixing a non-parole period. The fact that you won’t be the subject of parole supervision creates it must be fairly said, some form of fiction. But it is well entrenched in our law that you should receive the same benefit and consideration of those matters as has to be taken into account for someone who would be released into the Australian community and subject to parole supervision. Just take a seat.

15. One last matter I should point out, I have taken into account, although it was not discussed at all, the prisoner will serve his sentence in Australia and will be serving his sentence of course some distance from his family. Of course it is not a matter to be ignored but on the other hand people from overseas who commit serious crimes in our country, or come to our country to commit crimes, can expect nothing else if detected, than to serve terms of imprisonment separated from their family whilst they are in custody here.

16. Mr Miller one last matter, as the Crown correctly pointed out in its written submissions, the Commonwealth Act requires me to explain the sentence.  I think I have done that to the best of my ability. But you will not be released to parole, subject to any rights of appeal you have or any rights of appeal the Crown have, until at least the 6 July 2018. Then it is a matter of discretion for the authorities. If you are of good behaviour in custody and the like you will be released in due course to parole I expect whatever the sentence ultimately is, but you will eventually be taken into immigration detention and then deported fairly promptly. Yes thank you, you are excused.

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Decision last updated: 07 March 2016