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

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.
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.
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.
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.
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.
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.
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,…

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 R v Miller

Details

AGLC: R v Miller [2015] NSWDC 380
Case: [2015] NSWDC 380
Decision Date: 09 October 2015

CaseChat Overview and Summary

The case of R v Miller involved a defendant who was convicted of importing a commercial quantity of a border-controlled drug, specifically 3,4 methylenedioxymethamphetamine, into Australia. The case was heard and determined in the Supreme Court of Queensland. The defendant argued that he was under duress at the time of the offence and that this defence should be considered as a mitigating factor in sentencing.

The primary legal issue before the court was whether the defendant's plea of duress, which was not exculpatory, could be taken into account in determining the appropriate sentence. Exculpatory duress involves a situation where the defendant commits a crime due to immediate threats of death or serious injury to themselves or others. Non-exculpatory duress, on the other hand, involves threats that do not meet the threshold of exculpatory duress but still exert significant pressure on the defendant. The court had to determine whether it could consider non-exculpatory duress when determining the appropriate penalty.

The court found that while non-exculpatory duress could not absolve the defendant of criminal responsibility, it could be taken into account as a mitigating factor in sentencing. The court acknowledged the significant pressure the defendant was under but also emphasised the gravity of the offence and the need for deterrence. The court ultimately sentenced the defendant to six years and six months imprisonment, with a non-parole period of three years and seven months. This sentence reflected the court's consideration of the mitigating factors of duress while also imposing a substantial penalty to address the seriousness of the crime.

Orders

Orders of the court

Sentenced to 6 years and 6 months imprisonment with a non - parole period of 3 years and 7 months

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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