R v Nikolovska - [2010] NSWCCA 169

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Regina v Nikolovska [2010] NSWCCA 169

HEARING DATE(S): 7/7/10

JUDGMENT DATE:
22 December 2010

JUDGMENT OF: Beazley JA at 1; Kirby J at 2; Johnson J at 107

DECISION: 1. Leave to appeal granted.
2. The sentence imposed by Nicholson DCJ on 25.9.09 quashed.
3. In lieu thereof, the respondent is sentenced to imprisonment with a non parole period of 4 years 9 months commencing on 10.12.07 and expiring on 9.9.12; with an additional term of 2 years 9 months expiring on 9.6.15. She will be eligible for parole on 9.9.12.

CATCHWORDS: CRIMINAL LAW - Crown appeal - importation of marketable quantity of cocaine (1.431 kg) - offender's role - not low in heirarchy - breach of trust - Qantas employee used security clearance - sentence manifestly inadequate - issue of parity with co-offender - sentenced by reference to offender's sentence - no Crown appeal against co-offender - discretion to intervene - application s68A Crimes (Appeal and Review) Amendment (Double Jeopardy) Act

LEGISLATION CITED: Criminal Code Act 1995
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009
Crimes Act 1914 (Cth)
Drug Misuse and Trafficking Act 1985
Judiciary Act 1903 (Cth)

CATEGORY: Principal judgment

CASES CITED: DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28
R v Olbrich [1999] HCA 54; 199 CLR 270
House v The King (1936) 55 CLR 499
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171
R v Petroulias (No 36) [2008] NSWSC 626; (2008) 73 ATR 83
R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340
R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1
R v Rivadava [2004] NSWCCA 284; (2004) 61 NSWLR 63
Chan and Ors v Regina [2010] NSWCCA 153
Hili v The Queen [2010] HCA 45
R v To [2005] NSWCCA 362; 157 A Crim R 80
R v Ferrer-Esis (1991) 55 A Crim R 231
R v Barrientos [1999] NSWCCA 1
R v Acosta [1999] NSWCCA 334
R v Gallego [2002] NSWCCA 529
R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451
R v SC [2008] NSWCCA 29
R v Mirzaee [2004] NSWCCA 315
R v Pham [2005] NSWCCA 314
Mohlasedi v R [2006] WASCA 267
Le v R [2006] NSWCCA 136
Teehan v R [2006] NSWCCA 401
R v Tran [2007] QCA 221; (2007) 172 A Crim R 426
Mirza v R [2007] NSWCCA 257
R v Huynh (2008) 180 A Crim R 517
R v Jimson [2009] QCA 183
R v Bernier (1998) 102 A Crim R 44
R v Green & Quinn [2010] NSWCCA 313
R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366
R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
Cvitan v R [2009] NSWCCA 156
Bulfin (1998) 101 A Crim R 40
R v Najem [2008] NSWCCA 32
R v JW [2010] NSWCCA 49

PARTIES: Regina (Crown/App)
Anne Nikolovska (Resp)

FILE NUMBER(S): CCA 2008/16393

COUNSEL: N Adams (Crown/App)
N Carroll (Resp)

SOLICITORS: Cth DPP (Crown/App)
S E O'Connor - LAC (Resp)

LOWER COURT JURISDICTION: District Court

LOWER COURT JUDICIAL OFFICER: Nicholson SC DCJ

LOWER COURT DATE OF DECISION: 25/9/09

2008/16393

BEAZLEY JA
KIRBY J
JOHNSON J
Wednesday 22 December 2010

REGINA v Anne NIKOLOVSKA

Judgment

1 BEAZLEY JA: I agree with Kirby J.

This is an appeal against sentence by the Crown. Anne Nikolovska (the respondent) pleaded guilty in the District Court to an amended indictment expressed in the following terms:

Criminal Code (Cth).

3 Ms Nikolovska had previously pleaded guilty to a similar charge in the Local Court. A “marketable quantity” of cocaine is defined by the Table in s 314.4 of the Criminal Code Act 1995 (“the Act”) as an amount between 2 grams and 2 kg. Where the amount exceeds 2 kg it becomes a “commercial quantity”. The amount of pure cocaine imported was 1.431 kg. On 25 September 2009, Nicholson DCJ sentenced Ms Nikolovska to imprisonment for 6 years, commencing from her arrest (10 December 2007) and expiring on 9 December 2013, with a non parole of 3 years 9 months (expiring 9 September 2011).

4 On 27 October 2009, the Director of Public Prosecutions lodged a Notice of Appeal, asserting that the sentence was manifestly inadequate.

5 Before dealing with the arguments of the Crown, I should describe the offence and say something about the personal circumstances of Ms Nikolovska.

The offence.

6 Anne Nikolovska was employed by Qantas at the Sydney Distribution Centre at Mascot. She was a Controls Analyst. She had worked for Qantas for 27 years. She had a security clearance. It gave her access to imported goods held within a secure area.

7 The matter proceeded by way of an Agreed Statement of Facts (“A/F”). However, the parties could not agree upon a number of issues. His Honour was invited to resolve those issues by reference to both the agreed facts and supplementary material, which included a lengthy Record of Interview (“R of I”) with Ms Nikolovska. Ms Nikolovska did not give evidence.

8 In approximately September 2007, Ms Nikolovska was approached by Mr Wagih Nakhla, whom she knew. She had worked with him at Qantas ten years before. They had remained friends, although there had been little contact (R of I, Q 52-55). He sought her assistance in delivering to him a package, that was to be sent from overseas to the Sydney Distribution Centre of Qantas. Ms Nikolovska agreed to provide that assistance. On 18 October 2007, she spoke to him by telephone in a call which was lawfully intercepted. Their conversation included these words: (A/F [6])

“Offender: Keep in touch.

WN: Eh of course of course.

Offender: So I know what to do.

9 On 22 October 2007, Ms Nikolovska again spoke to Nakhla. He asked her to obtain, by reference to the exchange rate, the Australian dollar equivalent of US$5,000. Later the same day they spoke again. In somewhat guarded terms, Ms Nikolovska indicated that it was a good time to despatch the goods: (A/F [8])

“Offender: ... they’re doing um a lot of work now because they want to bring those um freight things forward so you better hurry.

WN: Yeah.

Offender: With the other agencies not working.

Offender: Everythings a mess.

WN: Ah hub which is good.

10 On 24 October 2007, Nakhla made a further request for assistance: (A/F [9])

“WN: Can you check on the system please eh flight to Johannesburg what time tonight and it’s connection eh South African Airline please and give me call back.

Offender: Sorry sorry what do you want?

WN: Connection tonight it’s about eight o’clock or eight quarter to eight tonight.

Offender: Get me a diamond.

WN: What.

11 When arrested and interviewed on 10 December 2007, Ms Nikolovska said that she did not know what was inside the parcel that she was meant to intercept and deliver (R of I, A 180). She added: “I don’t know if he said diamonds.” (cf R of I, A 181). During the sentencing hearing, his Honour was invited to resolve the question of whether Ms Nikolovska knew in advance that drugs were being imported. The Crown asserted that she did have knowledge and pointed, amongst other things, to answers she gave later in the same record of interview (R of I, Q 422-425). In the context of her description of matters she knew about Nakhla, she said this: (R of I, Q 425)

“A. ... that’s when I realised yeah, it is drugs. It’s not diamonds.”

12 His Honour ultimately made the following finding, that was not challenged: (ROS [21])

“21. ... I am satisfied she well knew the importation was focused upon drugs and not diamonds and well knew that before Nakhla left for Africa.”

13 Ms Nikolovska again spoke to Nakhla on 31 October 2007. Her conversation, as with a number of conversations, was in code. It began with Ms Nikolovska asking: “Bill, can’t you make a baby yet?”, and later adding: “It’s overdue mate, it’s overdue.” (A/F [11]).

14 On 7 November 2007, Nakhla left Australia for Africa to arrange the importation. He returned to Australia via Bangkok on 7 December 2007. The day before his return (6.12.07), having been provided with information by the Australian Federal Police, the Australian Customs Service intercepted a parcel of oil filters sent from Africa. The parcel was addressed to “Anne Downey, Qantas Airways, SDC ... Mascot”. “SDC” was a reference to the Sydney Distribution Centre where Ms Nikolovska worked. Ms Downey was a former Qantas employee who worked with Ms Nikolovska. She had retired in September that year. Having been intercepted, the package was inspected by Customs and found to contain 1.96 kg of cocaine (being 1.431 kg pure cocaine).

15 By 10 December 2007, Nakhla had become concerned about the whereabouts of the package he had sent. There were a series of telephone calls that day, that were lawfully intercepted, where he spoke to Ms Nikolovska. His Honour summarised the substance of these calls, set out in the agreed facts, in these words: (ROS [14]-[15])

“14. ... He was urging the offender to check and let him know. She agreed to send the numbers that she believed he needed to retrieve the package. She texted him the DHL Airway bill numbers, that in the normal course of events would have been required to retrieve or follow the packet. It turned out that they were not the numbers Nakhla was after.

15. She then forwarded to him some Westpac Bank account details. The significance of those accounts does not seem to me to be disclosed other than it was, or it had some connection with the offender to the extent that there was a document with numbers on it relating to that account found at her home.”

16 Nakhla remained concerned. At 11.45 am, he again telephoned Ms Nikolovska and said this: (A/F [21])

“Can you find out ... Can you find out ‘cause I can’t go on to the internet I can’t see it I’m walking around ... Can you check for me?”

17 Soon after, the police delivered the package to the Sydney Distribution Centre in a controlled operation. The package, however, “ended up on someone else’s desk” (ROS [17]). Within five minutes, Ms Nikolovska rang Nakhla. The conversation was as follows: (A/F [23])

“Offender: Hey we’re in strife.

WN: Hello.

WN: Yeah.

Offender: We’re in strife because Louise has got it.

WN: Sorry.

Offender: And she’s Louise has got it and she’s checking it.

WN: Okay everything okay.

Offender: Well no what I’m saying is someone else has got it on her desk.

WN: Good okay.

Offender: But she’s checking it and when she checks it she’s going to go off her brain.

WN: Oh go and get it.

Offender: Well I can’t she’s on at her desk so I’m hoping when she goes home I’m gunna go home at two thirty and ... see if I can come back in the morning early in the morning.

WN: Eh no no listen listen don’t leave it for tomorrow please please.

Offender: But just hold on and let me go in the lift if I stay she’ll be suspicious.

WN: No no listen you have to get it out please please.

Offender: Well I hope she doesn’t look into it fucking hell I’m I’m scared now seriously.

WN: No listen please.

Offender: Okay.

18 At 1.19 pm, Nakhla sent an SMS message to Ms Nikolovska saying: “My kids life on your hand.” At 1.24 pm, he sent a further message saying that he was on his way to her place of work. At 2.01 pm, Ms Nikolovska rang him in a call which his Honour characterised as a warning: (A/F [25])

“Offender: Yes um Louise just left somewhere she’s gone somewhere with the boss I’m not sure what’s going on.

WN: Anne Anne.

19 Later, Ms Nikolovska rang again, identifying her plan to obtain the package: (A/F [27])

“Offender: Yeah don’t come here because I’m gunna stay till late and see what happens okay see if she comes back.

WM: Yeah but you see you see the box there ... but the box is there is it?

Offender: Yes yes yes.

WN: Okay.

Offender: All right bye.

WN: Anne Anne Anne Anne listen to me listen to me.

Offender: Yes yes.

WN: Why don’t you take the box and go?

Offender: I can’t there’s a lot of people.

WN: You what?

20 At 4.10 pm, Ms Nikolovska was arrested. She stated that she was to be paid $10,000 for her role in the importation. At 5.00 pm, Nakhla was arrested whilst driving in the vicinity of the Qantas premises at Mascot. In the centre console of his car there was $10,000 in cash.

21 On 14 December 2007, the Australian Federal Police conducted a search of Ms Nikolovska’s home and seized the following documents:

a “Saywell International Certificate of Conformity for Ozone Converter”, that was identical to a document contained within the package at the time it was intercepted by the Australian Customs Service;

a “Certificate of Compliance. BASF Catalysts”, that was also identical to a document contained within the package at the time it was intercepted by the Australian Customs Service;

a piece of paper with handwriting on it that said “Abidjan Cote d’Ivoire 4652311090”;

a DHL internet tracking system download for consignment number 4652311090, dated 4 December 2007 and listing Cote d’Ivoire pickup details for the consignment; and

an Optus telephone account invoice for the months of November and December in the name of Anne Nikolovska, with her address. The document showed several calls to the Ivory Coast on 24 and 25 November 2007.

The respondent’s subjective case.

22 Ms Nikolovska was born in Macedonia. She came to Australia with her family at the age of five years. She formed a relationship at the age of 13 years and was married when she was 14 years and two months (ROS [42]). She had two children, a son aged 30 from whom she was estranged and a daughter, aged 24 years. Her daughter suffered from scoliosis and had required treatment, which she funded. Her marriage was marred by domestic violence and ended in divorce in 1987. She has not remarried. Before her incarceration, she lived with her aged parents.

23 Ms Nikolovska was educated to Year 8 (ROS [44]). She had demonstrated what his Honour described as “a strong work ethic” (ROS [54]). She had, as mentioned, worked for Qantas for 27 years. She has since been dismissed. His Honour considered the question of whether that dismissal constituted extra curial punishment. He said this: (ROS [62])

“62. The offender has lost her employment of 27 years and the career path that went with it. The terms of her dismissal are set out in a letter of 4 February 2008. She was paid up to and including the date of the letter and a further month’s pay in lieu. Clearly, her position is not being held for her. Nonetheless, I do not regard this as extra curial punishment in the sense that all prisoners, employed at the time of their incarceration, almost inevitably lose their employment. That type of matter normally is instinctively taken into account in respect of those offenders employed at the time of their offending.”

24 His Honour noted that Ms Nikolovska had been treated by Justice Health for long standing low grade depression (ROS [46]). A psychiatric report from Dr Thomas Oldtree-Clarke (20.12.08) was tendered on her behalf. Dr Oldtree-Clarke had a history from Ms Nikolovska that she was “upset all the time”. However, she showed no signs of psychosis. He diagnosed a dependent personality disorder as well as chronic depression. He noted that she gambled on poker machines, which he said was often seen as an accompaniment of such disorders. Commenting upon that report, his Honour said that it did not demonstrate the extent to which these disorders contributed “to her willing participation in the importation” (ROS [46]). His Honour added: (ROS [46])

“46. ... The onus is upon the defence to establish this. I regard it as a factor to be taken into account but certainly not a determinative factor causing her participation.”

25 His Honour made the further finding in respect of the respondent’s gambling: (ROS [47])

“47. ... Whether that gambling is problematic is not really established in the evidence nor is there any link made between her gambling and the offer of $10,000. ...”

26 Ms Nikolovska had one criminal conviction, although it was for an offence of dishonesty twenty years before. In 1988, Ms Nikolovska had been convicted of one count (with 23 matters on a schedule) of obtaining financial advantage by false statement. She was ordered to pay $2,739 compensation. She was also placed on a s 558 recognisance for five years, which she apparently completed without incident. Against that background, his Honour said this: (ROS [55])

“55. ... That does not suggest the offence could, in any way, be described as a major one. Insofar as this offence is concerned, her counsel submitted that I accept she is unlikely to re-offend.”

27 Ms Nikolovska co-operated with the police by participating in a two hour interview, although his Honour said that she was less than frank in respect of her level of participation and knowledge (ROS [51]). She had been in custody since her arrest on 10 December 2007. She had pleaded guilty in the Local Court eight months later. The Crown, in submissions before sentence, said this: (Crown subs, p 7)

“26. Furthermore, in addition to the absence of any immediate or subsequent admissions (other than that implicit in the plea), the Crown submits that the plea of guilty was entered at a late stage of the committal proceedings. The plea was entered on the 12th appearance before the Local Court, on 15 October 2008. This was the 7th mention after the brief of evidence had been served in full, and no plea was indicated before that time. The Crown does note, however, that the plea of guilty was entered before any committal hearing.”

28 His Honour noted these matters (ROS [48]) and gave a discount on sentence for advancing the administration of justice (ROS [49]). However, he did not quantify that discount.

29 Against this background, let me turn to the arguments advanced by the Crown in support of its submission that the sentence was manifestly inadequate.

Issues on appeal.

30 Three issues emerged in the course of argument. They may be summarised as follows:

First, the Crown did not assert patent error, although it was critical of two aspects of his Honour’s remarks. It was, according to the Crown, a case of latent error. Fundamental to the question of error was the role of Ms Nikolovska in the importation. Her role and her actions will determine the appropriate range of sentence.

Secondly, there were issues of parity, or at least relativity. Nicholson DCJ sentenced Ms Nikolovska on 25 September 2009. Sorby DCJ later heard submissions on sentence in respect of her co-offender, Nakhla. Sorby DCJ was provided with a copy of Nicholson DCJ’s remarks on sentence and was mindful of issues of parity. He sentenced Nakhla to imprisonment for 9 ½ years (10.12.07 to 9.6.17), with a non parole period of 5 years 9 months (expiring on 9.12.13). There has been no Crown appeal. It was acknowledged by the Crown that Nakhla’s culpability was greater than that of Ms Nikolovska. Nonetheless, the Crown contended that, accepting Nakhla played a more substantial role and accepting that his sentence reflected that role, the sentence upon Ms Nikolovska remained manifestly inadequate in view of her role. The Crown submitted it should be adjusted upwards (from 6 years imprisonment with a non parole period of 3 years 9 months), although it would remain less than that given to Nakhla.

Crimes (Appeal and Review) Act

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act

DPP (Cth) v De La Rosa

31 I will deal with each issue in turn, beginning with the role of Ms Nikolovska.

The role of Ms Nikolovska.

32 His Honour, in his remarks, set out the competing submissions of the Crown and counsel for Ms Nikolovska concerning the respondent’s role. He said this: (ROS [9]-[10])

“9. ... Her case is that her role was limited to being a delivery person once the packet had arrived at the Qantas Supply Facility.

10. The Crown case is that she is more of a facilitator within the Transport System Bureaucracy/Customs Holding facility, which also included, in its final stages, collection of the contraband and delivery to Nakhla or his associates outside the Mascot facility.”

33 His Honour then dealt with the evidence. He said it was clear that Ms Nikolovska’s role went well beyond simply delivering the package. He said this: (ROS [11])

“11. The phone intercepts, tendered before me, make clear the offender was being asked by Nakhla to do more than to collect contrabands and deliver it (see the phone conversations at 12.16 pm on 22 October 2007, phone conversations of 31 October 2007, for example). She was passing information to him (conversations 4.30 pm, 18 October 2007, 5.30 pm, 22 October 2007, and indeed, the calls taking place on 10 December 2007). There are calls consistent with her monitoring the likely arrival of the contraband – (see, for example, phone conversation 22 October 2007 at 5.31 pm).”

34 On 10 December 2007, Ms Nikolovska did a number of things to alleviate the concern of Nakhla:

She agreed to send the numbers she believed he needed to retrieve the package and thereafter provided the DHL airway bill number by text (ROS [14]).

She forwarded Westpac account details, using documents later found at her home (ROS [15]).

She kept him informed as to the fate of the package, once it had been placed on the desk of Louise, discussing the means by which she might obtain it (ROS [18]).

She warned the co-offender once Louise left the room with her boss (ROS [19]).

She well knew, at the time that she did these things, that the package contained drugs (ROS [21]).

She fulfilled this role for financial gain, namely $10,000 which she expected to be paid (ROS [21] and [38]).

35 His Honour then made the following findings concerning Ms Nikolovska’s role in the importation: (ROS [26])

“26. I am satisfied by what is disclosed in the telephone calls between the offender and Nakhla, and the items found at her home, and the admissions made in the record of interview, that the offender was a facilitator assisting Nakhla in choosing flight plans to Africa; in advising Nakhla from time to time; in assisting monitoring the progress of the contraband once it arrived in Australia; and was the intended destination for the cocaine at the Qantas SDC. It was then to be her task to deliver the package to Nakhla or his associates outside the facility at Mascot. She was also expected to, and did warn Nakhla, of any difficulties or dangers of detection as they may occur.”

36 Later his Honour said: (ROS [33])

“33. I am satisfied this offender is not the actual importer. However, the importer has taken advantage of the offender’s strategic placement at the Qantas SDC to secure the importation. I am satisfied, on the evidence before me, this offender knowing of her strategic placement, was willing to participate in the offence.”

37 His Honour added: (ROS [36])

“36. There can be, no doubt, the offender well realised her importance to Nakhla centred upon her strategic position of employment. She had security access to Qantas premises. There is, no doubt, the offender well understood the responsibility of her position on the other side of the Custom’s barrier, and the trust reposed in her by her employer. Her agreement to be involved in this importation constitutes a breach of trust that undermined the very function of border security against illegal importation her employer was required to maintain. That conduct constitutes an aggravation of her criminality.”

38 When dealing with the need for a substantial custodial sentence, his Honour said this: (ROS [53])

“53. In reviewing the objective facts I sought to establish the high level of criminal conduct pursued by Ms Nikolovska.”

Submissions as to the respondent’s role.

39 The Crown adopted the finding by his Honour that Ms Nikolovska was a strategically placed facilitator in a large, well organised drug importation. She had provided assistance over several months. She could not therefore be regarded as a “mere courier” (Crown subs, [21]). The Crown’s only quarrel with his Honour’s findings concerned the following: (ROS [39])

“39. I am not satisfied, beyond reasonable doubt, although I accept it is probable that the offender knew the imported drug was to be cocaine. I identify the nature of her intent as one of recklessness.”

40 The Crown submitted that it was not a case of recklessness. The fault element was intention. Ms Nikolovska knew that drugs were being imported, as his Honour had earlier found (ROS [21]). The Crown submitted it was irrelevant that the Court could not be satisfied beyond reasonable doubt that she knew the particular drug being imported was cocaine. If his Honour used that finding as a matter in mitigation, then he was, according to the Crown, in error.

41 Counsel for Ms Nikolovska submitted that his Honour did not make a finding that the respondent knew that what was being imported was a border controlled drug (RS [43]). Further, his Honour did not necessarily regard recklessness as a matter of mitigation (RS [44]). In any event, even if he did, it would have a negligible effect upon the sentence (RS [46]).

42 Dealing with these submissions, his Honour found that Ms Nikolovska knew before Nakhla left for Africa that drugs were being imported (ROS [21]). Plainly she knew she was assisting in the importation (in the words of the Act) of “border controlled drugs”. Knowing that, she intentionally gave assistance. The fault element was intention, not recklessness. Knowledge of the particular drug to be imported was not irrelevant, but did not determine fault in circumstances where she knew that illegal drugs were being imported. It was not, therefore, a case of recklessness.

43 It is not altogether clear that his Honour mitigated the offence upon the basis that it was reckless, rather than intentional. He well understood, having already made a finding, that Ms Nikolovska knew that she was assisting in the importation of illegal drugs. I will come back to this issue in the context of the adequacy of the sentence imposed.

44 Counsel for the respondent, in written submissions, acknowledged that, in the months before 10 December 2007, Ms Nikolovska “did provide some limited information” to Nakhla (RS [11]), as revealed by the intercepted telephone calls. However her role, it was submitted, was predominantly “to attempt to process the package when it arrived at the Sydney Distribution Centre and deliver it to the co-offender” (RS [11]). Responding to the Crown’s submissions, counsel for the respondent said this: (RS [14])

“14. The Crown at paragraph [30] states that it was not the finding made by the sentencing Judge that the Respondent was a person low in the hierarchy of the enterprise. This is disputed. The sentencing Judge’s only comments were to point out that the facilitator was something less than an importer. It is inaccurate to conclude that His Honour’s finding excluded her position as being low in the hierarchy of persons involved in the illegal drug trade.”

45 On this appeal, it was submitted that Ms Nikolovska was “a person low in the hierarchy”. There was “little to differentiate the role of a courier and that of a facilitator in an importation, as in this case” (RS [16]). Whilst her role at Qantas raised the level of her objective criminality, her security clearance, according to counsel for Ms Nikolovska, did not change her position “at the lower end of the hierarchy”. It simply made her more attractive as a target to importers (RS [17]).

46 In support of the submission that there was little to distinguish a courier from a facilitator, counsel for the respondent said this: (RS [19])

“19. Similarly, a courier and a facilitator, someone trying to attempt to possess the drugs, are both:

involved by someone else, the importer or middle management;

they do not have any knowledge about the source of the drugs or the destination of the drugs;

they are at high risk of detection, being exposed directly to the drugs at the critical times during the importation;

they quite often are not told exactly what is in the package;

they are paid a fairly small amount of money in comparison to what will be ultimately obtained in profit from the importation and sale of drugs at the street level (usually between $10,000 and $20,000).”

47 His Honour had, according to the respondent, appropriately identified the objective criminality of the offending behaviour, by the following finding: (RS [21])

“21(a) the importation of illicit drugs was generally an offence against public health and impact upon community at large (ROS at [28]-[29]);

(b) 1.431 kilograms of pure cocaine was imported which is 70% of the commercial quantity;

(c) the Respondent is not the actual importer nor principal;

(d) the Respondent was a willing participant;

(e) it was not accepted that she was pressured, but rather that she was reluctant to act, and required urging by Nakhla (ROS at [34]);

(f) she was a strategically placed facilitator intended to receive and deliver the package (ROS at [35]);

(g) it was a planned, well thought out offence, over two months (ROS at [37]);

(h) she was acting for financial gain, $10,000 (ROS at [38]); and

(i) the nature of her intent was recklessness (ROS at [39]).”

48 Counsel for the respondent added that Ms Nikolovska’s criminality was aggravated by her breach of trust (RS [36]).

49 The submissions made on behalf of Ms Nikolovska on this appeal repeat the submissions made to the sentencing Judge (supra [32]). The alternatives posed before Nicholson DCJ were, on the one hand, that Ms Nikolovska’s “role was limited to being a delivery person once the packet had arrived at the Qantas Supply Facility” (ROS [9]), and, on the other, that she was, as the Crown submitted, more of a “facilitator” (ROS [10]). His Honour, by his findings, adopted the Crown’s description. He implicitly rejected the suggestion that Ms Nikolovska’s role was limited to that of a delivery person. He was right to do so. Her role was much broader than “a mere courier”. A courier is sometimes likened to a mule, taking contraband from one place to another. Plainly, Ms Nikolovska did much more than that. She knew the plan before Nakhla’s departure. Her complicity, as the person strategically placed on the inside, was no doubt crucial to the plan going ahead. She assisted in the execution of the plan in minor ways over several months. Her main contribution was to come at the end when, in breach of trust, she would use her security clearance to get her hands on the package and deliver it to Nakhla.

50 His Honour did not say, in terms, where Ms Nikolovska should be placed in the hierarchy of those involved in the importation, beyond his comment that she was clearly below the importer (ROS [40]). However, as the High Court has said in R v Olbrich [1999] HCA 54; 199 CLR 270 at 279, para [19], labels such as “courier” or “principal” (and one might add, “high or low in the hierarchy”) must not obscure an assessment of what the offender did.

51 Here, as described, Ms Nikolovska’s contribution was significant and strategic. It was not confined to one day. It extended over several months. Her breach of trust was fundamental to her criminality. In my view it lifted the matter well above the criminality of someone involved in a joint criminal enterprise at a low level. She had a security clearance. She was trusted. She knew the system. That knowledge and that trust was valuable to an importer. Ms Nikolovska traded that advantage for money.

The appropriate sentencing range.

52 The Crown, in asserting latent error, acknowledged that it must show that the sentence was so plainly unreasonable or unjust that this Court may infer that, in some way, there has been a failure of the sentencing Judge to exercise properly his sentencing discretion (House v The King (1936) 55 CLR 499 at 504/5; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 329 and 340).

53 The Crown submitted (Crown subs [16]) that the discretion had miscarried since the sentence imposed:

(a) failed adequately to reflect the objective criminality of the offence;

(b) failed adequately to reflect the principle of general deterrence for offences of this nature; and

(c) reflected an irrelevant consideration, namely that Ms Nikolovska had been reckless in her participation in the enterprise.

54 The Crown also drew attention to the failure of the sentencing Judge to make any reference to the importance of general deterrence. He referred to personal deterrence (ROS [52]), to the potential for harm occasioned by drugs (ROS [28]) and the need to protect the community (ROS [7], [29]). Yet, in the context of an offence where general deterrence was of the utmost importance, he failed to make any reference to it.

55 Counsel for the respondent acknowledged that his Honour had made no express reference to general deterrence (RS [28]). She drew attention to his Honour’s reference to a number of cases in the context of the protection of the community (ROS [7]) where, in each case, there was a discussion of general deterrence. Further, general deterrence was such a fundamental sentencing principle that his Honour, as an experienced Judge, can be assumed to have had it in mind. Counsel drew attention to R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171, where Howie J said this: (at 177)

“34. The Court should be slow to attribute error to a sentencing judge simply on the basis that the judge has failed to refer to a matter during the course of giving remarks on sentence. This is particularly so where the judge is as senior and experienced as the sentencing judge in the present matter. But there are occasions when the matter is of such importance to the exercise of the sentencing discretion that a failure to mention it at all is indicative of error, particularly where it is a matter that has been addressed by at least one of the parties. ... ”

56 Here, I believe his Honour’s failure, in his sentencing remarks, to refer to general deterrence was an oversight. It is a fundamental sentencing principle. I accept that his Honour, as an experienced Judge, was certainly conscious of it.

57 However, general deterrence had a particular relevance in the context of Ms Nikolovska’s offence, by reason of her breach of trust. Although speaking of a person occupying a public office (within the tax system), the following words of Johnson J in R v Petroulias (No 36) ([2008] NSWSC 626; (2008) 73 ATR 83) are apposite in the present context. His Honour said this, when sentencing an offender convicted of receiving a benefit in the exercise of his duty: (at 119)

Director of Public Prosecutions (Cth) v El Karhani

58 Let me turn to the appropriate sentencing range in the light of these findings concerning Ms Nikolovska’s actions in furtherance of this importation.

59 The Crown, in submissions, identified two sources that were said to demonstrate that the sentence of 6 years (with a non parole period of 3 years 9 months) was simply outside the available range. The first was the guideline judgment of this Court in R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340. The second was the collection of cases that had been placed before the sentencing Judge as part of the Crown’s submissions.

60 Dealing with the first source, the Chief Justice in R v Wong and Leung, having referred to a large number of cases involving the importation of drugs, said this: (at 366)

R v Jurisic

R v Henry.

(2 grams-200grams)

(200 grams-1 kilogram)

(1 kilogram-1.5 kilograms (heroin))

61 The importation in this case came within the third category, a high range traffickable quantity (1.431 kg). Moreover, the sentencing range required adjustment upwards for a number of reasons. Ms Nikolovska’s role was not that of a “courier or person low in the hierarchy”, as presupposed in the guideline. The sentencing Judge determined that she had a far more substantial role. Further, R v Wong and Leung predated the repeal of s 16G of the Crimes Act 1914 (effective from 16.1.03). That section required an adjustment, when sentencing Federal offenders, to take account of the absence of remissions. It was a “rule of thumb” that s 16G reduced the head sentence by about one third, although the adjustment was not mathematical (R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1, per Howie J at [43]).

62 The Commonwealth recognised that the guideline in R v Wong and Leung had been declared invalid by the High Court. The Court had been critical of the emphasis given to the quantity of drugs, whereas s 16A of the Crimes Act required the sentencing Judge to take account of a wide range of issues. Nonetheless, it was submitted that R v Wong and Leung remained a very useful guide (R v Rivadava [2004] NSWCCA 284; (2004) 61 NSWLR 63 at 65).

63 Dealing with that submission, a number of recent decisions in this Court have made it clear that the guideline judgment is of limited assistance in determining the sentencing range, in view of the comments of the High Court (DPP (Cth) v De La Rosa (supra); Chan and Ors v Regina [2010] NSWCCA 153 at [114]). That said, the weight of the drug imported remains a most significant matter. In R v To [2005] NSWCCA 362; 157 A Crim R 80, Howie J said this: (at [110])

Wong and Leung v The Queen

64 In DPP v De La Rosa (supra)¸ in the context of similar offences, Simpson J made the following comments upon the sentencing range: (at [307]-[308])

Wong

308 If that were not so, then there would be no greater deterrent (general or specific) to the importation of 1.99 kilograms than there is to the importation of 2 grams. The greater the quantity, the nearer it is to the cut off point for a marketable quantity, and to the starting point of a commercial quantity, the closer to the maximum the penalty must be. Of course, quantity is not the only consideration, and must be tempered by other factors. To my mind, however, this is a case in which the quantity of the drug involved is a very significant factor. ...”

65 The second source, said to provide guidance, was a collection of cases involving the importation of a marketable quantity of cocaine. They had been placed before Nicholson DCJ and again relied upon by the Crown in this Court (R v Ferrer-Esis (1991) 55 A Crim R 231; R v Barrientos [1999] NSWCCA 1; R v Acosta [1999] NSWCCA 334; R v Gallego [2002] NSWCCA 529; R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451). In argument the Crown also relied upon R v SC [2008] NSWCCA 29.

66 Counsel for Ms Nikolovska submitted that only one of the cases (R v Paliwala) related to the period after the repeal of s 16G. They did not represent current sentencing trends. Attention was drawn to his Honour’s remarks on sentence, commenting upon these cases. He said this: (ROS [68])

“68. I have had regard to the sentences imposed in five cases and dealt with by the Court of Criminal Appeal [referred to me by the Crown]. I have also had regard to the statistics provided for this offence on JIR. Both, that is the two together, give me a broad view of the sentencing range, although I note, en passant, the cases referred to by the Crown appear to be in the top 38% of sentencing outcomes.”

67 The cases identified may be summarised in these terms, the first four being sentences passed before the repeal of s 16G:

R v Ferrer-Esis

R v Barrientos

R v Acosta

R v Gallego

R v Paliwala

68 The other judgment relied upon by the Crown was R v SC (supra [65]) which was a Crown appeal. The offender attempted to possess two packages sent to the Qantas mail handling depot. The packages contained 183.9 grams of cocaine. The Judge characterised the offender’s role as “a relatively low level courier” (at [16]). He determined that the appropriate starting point was 7 years imprisonment. He allowed a discount of 50% for the plea of guilty and assistance. The sentence imposed was imprisonment for 3.5 years, with a non parole period of 2 years. Price J (McClellan CJ at CL and Hall J agreeing), was not persuaded that the starting point was manifestly inadequate, having regard to the objective seriousness of the offence and the subjective circumstances of the respondent (at [37]). Price J made the following comment, concerning statistics published by the Judicial Commission of New South Wales: (at [35])

These figures suggest that an appropriate range of sentences involving low level trafficable quantities of cocaine and heroin after the repeal of s 16G is a head sentence of between six and nine years imprisonment

69 Responding to R v SC, counsel for Ms Nikolovska said this: (RS [57])

“57. If one examined the current judicial statistics ... in determining the current applicable range of sentences for importation of a marketable quantity of cocaine, the following can be observed:

Cocaine 2g-2kg marketable 26 sentences 85% b/w 6-9 yrs

Heroin 2g-1.5kg marketable 64 sentences 93% b/w 5-9 yrs

These figures of course represent all roles within the recognised hierarchy of offenders.”

70 Statistics, as a tool providing insight into a sentencing range, have been described as “opaque” (cf R v Chan & Ors [2010] NSWCCA 153 at [117]; Hili v The Queen [2010] HCA 45 at [48]). They do not reveal matters crucial to the length of the sentence, in this case the weight of the drugs and the role played by the offender. Here the offence, the subject of this appeal, is defined in unusually broad terms. A marketable quantity of cocaine is a quantity between 2 g and 2 kg. There is obviously a vast difference, in terms of criminality, between the importation of 2 g of cocaine in contrast to the importation of almost 2 kg.

71 Each relevant variable, in terms of objective criminality, counted against Ms Nikolovska, such that you would have expected a sentence towards the upper end of the range, rather than the reverse. Taking her role as the first important variable, she was not a courier or a person low in the hierarchy. Whilst she was not a principal, the statistics, regrettably, include very few principals. They are usually able to insulate themselves from risk and therefore avoid arrest. Others undertake the risk on their behalf. Here, Ms Nikolovska was somewhere in the middle, a person with a security clearance, strategically placed on the inside, prepared to act when required, in breach of trust. Her role did not ameliorate her offence. Indeed, her breach of trust aggravated the offence.

72 The second significant variable concerns the weight of the drugs imported. The cocaine imported in R v SC was 183.9 g. The cocaine imported in Ms Nikolovska’s offence was more than eight times greater, 1.431 kg. Again, you would expect a sentence towards the upper end of the range.

73 His Honour, in sentencing Ms Nikolovska, did not identify his starting point. He provided a description of the timing of the plea (which was just before committal), such that you would expect a 20% discount, in which case the starting point was about 7.5 years for the head sentence. On the basis of the statistics, the cases placed before his Honour by the Crown and the comments of Price J in R v SC, the sentence imposed (6 years with a non parole period of 3 years 9 months) would appear to be outside the range, having given full weight to the applicant’s subjective case.

74 In R v De La Rosa (supra [63]), McClellan CJ at CL, in the context of a Crown appeal, examined a wide range of cases involving a drug importation. His judgment helpfully included a table in which he identified relevant variables and the sentence imposed. The following cases from that table provide some insight into the relevant sentencing range: (cf Hili v The Queen at [64])

R v Mirzaee

R v Pham

Mohlasedi v R

Le v R

Teehan v R

R v Tran

Mirza v R

R v Huynh

R v Jimson

75 Reference should also be made to De La Rosa itself. It was a Crown appeal against inadequacy. The offender was charged with the same offence as Mr Nakhla, that is the importation of the border controlled drug, cocaine, contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth) (1.87 kg). The offender was a Spanish national with a significant criminal record. He travelled to Australia with the drugs, which were discovered after a search by customs. He said he carried the drugs to repay a significant debt incurred when “friends” looked after his family whilst he was in gaol. He entered an early plea (25%). He was sentenced to imprisonment for 8 years with a non parole period of 5 years (a notional starting point of 10 2/3 years, with a non parole period of 6 2/3 years) (De La Rosa [66]). His role, as determined by the sentencing Judge, was that of “courier” (De La Rosa [158]). The Court of Criminal Appeal dismissed the Crown appeal on the basis that the Crown had not established manifest inadequacy.

76 Upon the basis of this material, I am satisfied that the sentence of 6 years imprisonment, with a non parole period of 3 years 9 months, imposed upon Ms Nikolovska, was manifestly inadequate and that there was error. Subject to the issue of parity, there is a need to resentence.

The parity issue.

77 Ms Nikolovska and Nakhla were co-offenders in the same joint criminal enterprise. They were each charged with the same offence, that is the importation of a border controlled drug, cocaine, in a marketable quantity (1.431 kg), contrary to s 307.2(1) of the Criminal Code Act 1995 (Cth). Both offenders pleaded guilty. Each was entitled to a discount of about 20% (not quantified in the case of Ms Nikolovska, but quantified at 20% in the case of Nakhla). The issue of parity therefore needs to be considered.

78 The subjective cases presented on behalf of each offender were unremarkable. Ms Nikolovska had a strong work ethic. However, she had been convicted of an offence of dishonesty in 1988 (one count of obtain financial advantages by a false statement, with 23 matters on a schedule). She was sentenced to a 5 year recognisance which she completed. Her prospects of rehabilitation were assessed as good. She was said to suffer from “low grade” depression. She had a daughter who had a back disability. She lived with and looked after aged parents. There was a suggestion of a gambling problem, but no evidence to establish a link between her gambling and the offence.

79 Mr Nakhla, on the other hand, had no previous convictions. He had become involved in the venture to pay off a debt to money lenders. The debt had been accumulated in the context of a failed business. He was remorseful. He had good prospects of rehabilitation (ROS 11).

80 The significant difference between the two offenders was in their respective roles in the offence. Ms Nikolovska was sentenced first (25.9.09) by Nicholson DCJ. As set out above (supra [35]-[38]), she was said to be a “facilitator”, assisting Nakhla in various ways from the inception. She was not the importer (ROS 33) (supra [36]). She was a person who had a security clearance, strategically placed on the inside, whose ultimate task was to monitor the arrival of the drugs and take possession of them. She was thereafter to deliver them to Nakhla. His Honour said this: (ROS 36) (supra [37])

“Her agreement to be involved in this importation constitutes a breach of trust that undermined the very function of border security against illegal importation her employer was required to maintain. That conduct constitutes an aggravation of her criminality.”

81 His Honour added: (ROS 53) (supra [38])

“53. In reviewing the objective facts I sought to establish the high level of criminal conduct pursued by Ms Nikolovska.”

82 Ms Nikolovska was sentenced to 6 years imprisonment with a non parole period of 3 years 9 months. The non parole period represented a little over 60% of the full term, reflecting the range suggested in R v Bernier (1998) 102 A Crim R 44 (66%-66.6%). It should be noted that range is no longer the norm (Hili v The Queen (supra)).

83 Mr Nakhla was sentenced by Sorby DCJ two months later (20.11.09). His Honour had a copy of the remarks on sentence in respect of Ms Nikolovska and referred to her sentence. He described the offence of Nakhla as “an objectively serious offence”. The money for the enterprise was provided by others, although the offender actively sought out people to provide finance (ROS 5). His involvement extended over three months, including one month overseas (ROS 6). Whilst overseas, Mr Nakhla spoke to his principal almost every day (ROS 9). He sourced the drugs and purchased them on behalf of the principal. He arranged for their despatch from Africa to Australia. He recruited Ms Nikolovska and another to assist at the Australian end. Considerable planning and preparation had been involved (ROS 5). His Honour summarised the position in these words: (ROS 10)

“… I am prepared to accept that the offender was not the principal in the operation in Australia or overseas. Nevertheless his role was significant. I assess his role at the middle level taking into account his overseas journey into Africa, the length of his stay, the telephone calls where he sought the drugs, made arrangement for their payment and transport to Australia, and he was on his way to collect the drugs when he was arrested.”

84 Sorby DCJ sentenced Mr Nakhla to imprisonment for 9 years 6 months with a non parole period of 5 years 9 months. The non parole period represented slightly more than 60% of the head sentence.

85 Counsel for Ms Nikolovska, in submissions, drew attention to the differences in the role played by Mr Nakhla compared to Ms Nikolovska. He was at the middle level. His role involved travelling overseas, sourcing the drugs, sending them to Australia, as well as recruiting Ms Nikolovska and others. The difference in their respective sentences, according to the respondent, accurately reflected these differences in their respective roles (RS [62]-63]).

86 Counsel for the Crown acknowledged that Sorby DCJ was clearly conscious of parity when sentencing Mr Nakhla (T 8). The Crown position on parity was as follows: (T 9)

“… There is no Crown appeal in respect of that (referring to Mr Nakhla) but in respect of the disparity between that sentence and this offender our simple submission is that the disparity between them is not defined by the role of this offender. This offender’s role was higher than that reflected in the sentence of the principal courier and that we say is substantiated by the facts of the case and her role.

Parity in the context of a Crown appeal.

87 A five Judge bench has recently considered the question of parity in the context of a Crown appeal, where the Crown elects not to lodge appeals against all offenders (R v Green & Quinn [2010] NSWCCA 313).

88 The leading judgment was given by R S Hulme J (with whom McClellan CJ at CL and Latham J agreed) (Allsop P and McCallum diss). In that case the Crown lodged an appeal against the sentences imposed upon two co-offenders, each charged with the cultivation of a large commercial quantity of cannabis plants (contrary to s 23(2)(a) and 33(3)(b) of the Drug Misuse and Trafficking Act 1985). In each case, the sentences were said to have been inadequate. There was a third offender who had been sentenced by the same Judge, although for a lesser offence. There was no Crown appeal against the sentence imposed upon him. It was submitted, in these circumstances, that the Court would not, on a Crown appeal, increase the sentences of the co-offenders, even though it may regard them as manifestly inadequate. To do so would create disparity with the sentence that was not the subject of an appeal (cf R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366; R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 at [69]; and Cvitanv R [2009] NSWCCA 156).

89 A similar argument was considered by the Court of Appeal of Victoria in Bulfin (1998) 101 A Crim R 40, where Charles JA summarised the argument in these words: (at 64)

“Mr Holdenson submitted that it was clear that in sentencing the respondent and the co-offender Brown, the learned judge had carefully considered and applied principles of parity to achieve the sentences imposed. In such a situation, he submitted, the Director could not appeal against the sentence imposed on one offender without also appealing against the sentence imposed on the co-offender. The Director was obliged, so the argument ran, in effect to make an election; he had to choose whether to appeal against the sentences imposed on both co-offenders or not to appeal at all. This led to the second part of Mr Holdenson’s argument which was that to appeal only against the sentence imposed on the respondent would inevitably cause disparity to occur.”

90 The argument was rejected. The Director’s ability to bring a Crown appeal against an inadequate sentence was circumscribed by the well established rule that Crown appeals should be “rare and exceptional”. His Honour added: (at 64)

Glass

91 In R v Green & Quinn, R S Hulme J examined a number of Crown appeals where the Court had intervened to correct a sentence that was manifestly inadequate, notwithstanding the impact upon sentences of co-offenders. In R v Najem [2008] NSWCCA 32, R S Hulme J (Beazley JA and Latham J agreeing), said this: (at [62]-[63])

“62 … notwithstanding that allowing the Crown appeal and increasing the sentences on Najem will or is liable to create disparity with those imposed on Sassine and Duncan (though reducing the disparity between Najem and VAA and Ellias), the extent of the inadequacy in the sentences imposed on Najem is such that this Court should interfere …

63 However, in the exercise of this Court’s discretion in Crown appeals to impose sentences less than those that should have been imposed at first instance and because of the disparity with the totality of the sentences that have been imposed on Duncan and Sassine, I would impose sentences less than those indicated in the immediately preceding paragraph.”

92 Having reviewed this and other authorities, his Honour’s conclusion in R v Green & Quinn was in these terms: (at [126])

“126. Turning to those decisions to which I was a party, I have seen or heard nothing to persuade me that the factors I there relied on do not provide strong arguments against a blanket rule that the Court could not or should not increase manifestly inadequate sentences if the result of doing so is to create disparity. There is a substantial public interest in sentences being appropriate and that manifestly, and sometimes grossly, inadequate sentences be corrected.”

93 McClellan CJ at CL who formed part of the majority, substantially agreed with R S Hulme J, and added the following useful summary of the principles: (at [32])

Lowe v R

94 Allsopp P and McCallum J (diss) identified the principle in these terms: (at [9])

“9. Thus, in a Crown appeal, it may not be inappropriate for the Court to decline, in the exercise of its discretion, to increase a sentence to a point where the relevant disparity would be so marked as to invoke the operation of the parity principle, unless the circumstances were clearly such as to outweigh the competing, and important, consideration of the Court itself creating the appearance of unequal justice by its own order. As a general rule the product of the rule of law should not be a justifiable sense of grievance or injustice.”

95 Allsop P and McCallum J agreed that the sentences, the subject of the Crown appeals, were manifestly inadequate (at [13]). Nonetheless, they represented a “substantial measure of punishment by fulltime imprisonment”. They did not represent an “affront to justice” (at [23]). Intervening would create unacceptable disparity. Accordingly, the minority judges would have dismissed the appeal.

96 Here the sentence of Ms Nikolovska would have been lenient had she been a courier or someone low in the hierarchy. However, as his Honour rightly found, she could not be so characterised. Her breach of trust, in using her security clearance, amongst other things, placed her in the middle, although lower than the offender Nakhla who was also in the middle, he not being a principal.

97 Mr Nakhla, no doubt, had the benefit of a reasonably lenient sentence, framed by Sorby DCJ with the manifestly inadequate sentence of Ms Nikolovska in mind. This Court has a discretion to intervene and correct the manifestly inadequate sentence given to Ms Nikolovska, even though such intervention would alter the relativities created by Sorby DCJ, reflecting his view, amongst other things, of parity. So, the question is whether the Court should intervene or dismiss the appeal? In my view, in the circumstances identified, the Court should intervene, although preserving some real difference with the sentence imposed upon the offender Nakhla, reflecting his larger role.

Resentence.

98 In resentencing Ms Nikolovska, an issue arose concerning the application of the Crimes (Appeal and Review) Act 2001 (NSW) s 68A, to a Crown appeal in a Commonwealth matter. That section is in these terms:

“68A (1) An appeal court must not:

(a) dismiss a prosecution appeal against sentence, or

(b) impose a less severe sentence on any such appeal than the court would otherwise consider appropriate,

because of any element of double jeopardy involved in the respondent being sentenced again.

Criminal Appeal Act

99 The section was considered in R v JW [2010] NSWCCA 49, per Spigelman CJ at [141]. In the context of a Commonwealth offender, the Court is obliged to take account of the “mental condition of the offender”, amongst other things. That requirement gave rise to an issue whether s 68A of the New South Wales Act was in conflict with s 16A(2)(m) of the Crimes Act 1914 (Cth). If there were conflict, the section would not be picked up by ss 68, 79 and 80 of the Judiciary Act 1903 (Cth), and would not apply to a Commonwealth offence.

100 In Director of Public Prosecutions (Cth) v De La Rosa (supra), McClellan CJ at CL, Simpson J and Barr AJ (Allsop P and Basten JA diss) found that, properly construed, there was no conflict, so that s 68A of the New South Wales Act did apply when sentencing a Commonwealth offender. The section precluded reliance upon a presumption that the offender had suffered anxiety or distress. It did not remove from consideration actual anxiety or distress, occasioned by the fact that the respondent was to be resentenced (De La Rosa at [162]-[180]); [274]-[282] and [315]).

101 Here, an affidavit of Ms Nikolovska of 17 June 2010 was relied upon in the event that this Court was called upon to resentence. She was arrested on 10 December 2007. In January 2008 she was housed in Dillwynia Correctional Centre, in the main area. She worked in an office processing data. At the point where she had completed nine months of her sentence, so that less than three years of the non parole period remained, she became eligible to apply for a CAT–2 classification. She made application and was successful. A position became available for work and placement in an Independent Living Unit, which is a separate complex within the Dillwynia Centre. The work was more challenging and the pay more substantial. Ms Nikolovska was given the privilege of having her own cell. The fact that she was receiving more money each week meant that she was able to have greater contact with her family by phone.

102 As a consequence of the Crown appeal, Ms Nikolovska was deprived of these benefits. She returned to the status of a remand prisoner. She lost her job, the increased remuneration and the right to a single cell. Her blood pressure increased. The dosage of the drug prescribed for depression (Avenza) was increased from half a tablet a day to a full tablet. She remains concerned about her daughter who has since moved to Canada, and her parents who are ill and no longer able to rely upon the assistance of her daughter.

103 Ms Nikolovska added that her urine remained clear. There had been no misconduct charges since she was sentenced.

104 Counsel for the respondent, in these circumstances submitted, and I accept, that there was actual disadvantage occasioning anxiety and distress to the respondent by reason of the appeal, that should be taken into account on resentencing.

105 The sentence I propose is a term of imprisonment of 7 years 6 months with a non parole period of 4 years 9 months (preserving the approximate ratio between head sentence and non parole period as the original sentence). That sentence, in the exercise of the Court’s discretion on a Crown appeal, remains less than should have been imposed at first instance. There remains a real difference between the sentence to be served by Ms Nikolovska and that of Mr Nakhla, reflecting his greater role.

Orders.

106 The orders I propose are as follows:

1. Leave to appeal granted.

2. The sentence imposed by Nicholson DCJ on 25.9.09 quashed.

I agree with Kirby J.

**********

Citations

R v Nikolovska [2010] NSWCCA 169

Most Recent Citation

Cases Citing This Decision

26

R v Tran [2025] NSWDC 394

Cases Cited

35

Statutory Material Cited

6

R v Olbrich [1999] HCA 54

Dinsdale v The Queen [2000] HCA 54

Minister for Immigration and Citizenship v Li [2013] HCA 18

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CITATION:	Regina v Nikolovska [2010] NSWCCA 169
HEARING DATE(S):	7/7/10
JUDGMENT DATE:	22 December 2010
JUDGMENT OF:	Beazley JA at 1; Kirby J at 2; Johnson J at 107
DECISION:	1. Leave to appeal granted. 2. The sentence imposed by Nicholson DCJ on 25.9.09 quashed. 3. In lieu thereof, the respondent is sentenced to imprisonment with a non parole period of 4 years 9 months commencing on 10.12.07 and expiring on 9.9.12; with an additional term of 2 years 9 months expiring on 9.6.15. She will be eligible for parole on 9.9.12.
CATCHWORDS:	CRIMINAL LAW - Crown appeal - importation of marketable quantity of cocaine (1.431 kg) - offender's role - not low in heirarchy - breach of trust - Qantas employee used security clearance - sentence manifestly inadequate - issue of parity with co-offender - sentenced by reference to offender's sentence - no Crown appeal against co-offender - discretion to intervene - application s68A Crimes (Appeal and Review) Amendment (Double Jeopardy) Act
LEGISLATION CITED:	Criminal Code Act 1995 Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2009 Crimes Act 1914 (Cth) Drug Misuse and Trafficking Act 1985 Judiciary Act 1903 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 243 FLR 28 R v Olbrich [1999] HCA 54; 199 CLR 270 House v The King (1936) 55 CLR 499 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 R v Carr [2002] NSWCCA 434; (2002) 135 A Crim R 171 R v Petroulias (No 36) [2008] NSWSC 626; (2008) 73 ATR 83 R v Wong and Leung [1999] NSWCCA 420; (1999) 48 NSWLR 340 R v Studenikin [2004] NSWCCA 164; 60 NSWLR 1 R v Rivadava [2004] NSWCCA 284; (2004) 61 NSWLR 63 Chan and Ors v Regina [2010] NSWCCA 153 Hili v The Queen [2010] HCA 45 R v To [2005] NSWCCA 362; 157 A Crim R 80 R v Ferrer-Esis (1991) 55 A Crim R 231 R v Barrientos [1999] NSWCCA 1 R v Acosta [1999] NSWCCA 334 R v Gallego [2002] NSWCCA 529 R v Paliwala [2005] NSWCCA 221; (2005) 153 A Crim R 451 R v SC [2008] NSWCCA 29 R v Mirzaee [2004] NSWCCA 315 R v Pham [2005] NSWCCA 314 Mohlasedi v R [2006] WASCA 267 Le v R [2006] NSWCCA 136 Teehan v R [2006] NSWCCA 401 R v Tran [2007] QCA 221; (2007) 172 A Crim R 426 Mirza v R [2007] NSWCCA 257 R v Huynh (2008) 180 A Crim R 517 R v Jimson [2009] QCA 183 R v Bernier (1998) 102 A Crim R 44 R v Green & Quinn [2010] NSWCCA 313 R v McIvor [2002] NSWCCA 490; (2002) 136 A Crim R 366 R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1 Cvitan v R [2009] NSWCCA 156 Bulfin (1998) 101 A Crim R 40 R v Najem [2008] NSWCCA 32 R v JW [2010] NSWCCA 49
PARTIES:	Regina (Crown/App) Anne Nikolovska (Resp)
FILE NUMBER(S):	CCA 2008/16393
COUNSEL:	N Adams (Crown/App) N Carroll (Resp)
SOLICITORS:	Cth DPP (Crown/App) S E O'Connor - LAC (Resp)
LOWER COURT JURISDICTION:	District Court
LOWER COURT JUDICIAL OFFICER:	Nicholson SC DCJ
LOWER COURT DATE OF DECISION:	25/9/09