Regina v Millerat

[2005] NSWCCA 142

CITATION:	Regina v Millerat [2005] NSWCCA 142
HEARING DATE(S):	30 March 2005
JUDGMENT DATE:	18 April 2005
JUDGMENT OF:	Grove J at 1; Howie J at 46; Hall J at 47
DECISION:	CROWN APPEAL ALLOWED; RESPONDENT RESENTENCED

CATCHWORDS:	CRIMINAL LAW AND PROCEDURE - SENTENCE - IMPORTATION OF PROHIBITED DRUG (MDMA) - IN EXCESS OF FOUR TIMES MINIMUM COMMERCIAL QUANTITY - YOUNG FEMALE COURIER - NO PRIOR CONVICTIONS - FOREIGN NATIONAL - OFFENDER ADDICTED TO DRUGS - MANIFEST INADEQUACY OF FIRST INSTANCE SENTENCE
LEGISLATION CITED:	s 16G Crimes Act 1914 s 233B(1)(b) Customs Act 1901
CASES CITED:	R. Benais [1999] NSWCCA 236 R v Bowers 1997 97 A Crim R 461 R v Klein 2001 121 A Crim R 90 R v Schofield [2003] NSWCCA 3 R v Simon [2003] NSWCCA 147 R v Spillane [1999] NSWCCA 280
PARTIES:	Regina v Sarah Millerat
FILE NUMBER(S):	CCA 2005/31
COUNSEL:	D. Staehli (Crown/Applicant) P. Hamill SC (Respondent)
SOLICITORS:	Commonwealth DPP (Crown/Applicant) Hillman Laxon Tobias (Respondent)

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1063
LOWER COURT JUDICIAL OFFICER:	Dodd DCJ

2005/31

GROVE J
HOWIE J
HALL J

18 April 2005

REGINA v SARAH MILLERAT

Judgment

1 GROVE J: This is an appeal by the Crown in the right of the Commonwealth asserting that sentence imposed by Dodd DCJ on the respondent at Sydney District Court was inadequate, and seeking increase thereof.

2 The respondent is a French citizen, born 21 January 1979. She entered Australia at Sydney Kingsford Smith Airport on Sunday 13 June 2004, arriving aboard an Austrian Airlines flight which had originated in Vienna. She was travelling on her own French passport. In accordance with routine, she completed an incoming passenger card which included her denial that she was bringing illicit drugs into Australia. At a customs barrier point her baggage was selected for examination.

3 Part of the examination included an ion scan swab being run over her suitcase and this produced a positive result for the prohibited drug cocaine. The respondent initially told customs officers that there was nothing in her suitcase but when the question was repeated she said “cocaine”.

4 The respondent’s suitcase was deconstructed by Federal police. Cocaine was not found but three packages were discovered secreted in the lining of the suitcase. The content of these packages consisted of approximately 28,750 tablets weighing 4,786.8 grams. Testing established that these tablets were methylenedioxymethamphetamine (MDMA) and laboratory analysis established the nett weight of pure MDMA as 2,025.9 grams.

5 The respondent was charged with a single count of importing a commercial quantity of prohibited drug (MDMA) contrary to s 233B(1)(b) of the Customs Act 1901. Such an offence carries a prescribed maximum penalty of life imprisonment, together with a fine. Upon being supplied with the appropriate prosecution brief the respondent pleaded guilty and adhered to that plea. She was before the District Court for the purpose of sentence and her arraignment upon indictment was a procedural step and did not operate to devalue her early plea of guilty before the magistrate.

6 The respondent had no prior convictions. His Honour imposed a sentence of five years six months imprisonment with a non parole period of two years nine months.

7 The respondent participated in an interview with police on the day of her arrest. At the time she told police how she came to journey to Australia in possession of illicit drugs and of instructions given to her to proceed to a particular hotel at Parramatta and telephone a number with which she had been supplied. Her description of events was substantially included in a statement of facts prepared for the purpose of sentencing proceedings. The respondent gave evidence, as did her father and mother, who travelled from France in order so to do. His Honour also received into evidence a letter addressed to him from the respondent, which she had written whilst in custody.

8 The respondent’s father is French by nationality and her mother was described as Yugoslav. When the respondent was aged about three years her parents divorced and she remained with her mother who subsequently entered into a long term relationship with a man whom the respondent regarded as her stepfather. He had died in early 2004. The respondent was raised in France but frequently spent extended periods of school vacation and the like in the former Republic of Yugoslavia, where she had relatives on her mother’s side of the family. Whilst in Yugoslavia on one of these occasions she was subjected to sexual abuse by a male member of that family. In the course of time the respondent developed a closer relationship with her father and was employed in his business in Paris for several years. She obtained some qualifications in business administration but at the time of her journey to Australia she was unemployed.

9 For an extended period of years she was an abuser of drugs and alcohol. Arrangements have been made for her entry into a rehabilitation program commencing in June 2004. As at that time she had been in a relationship with a boyfriend who was not a drug user and who was, and remains, supportive of her. Her father gave evidence of his good opinion of this young man.

10 However, to paraphrase what the respondent has said from time to time, she determined to go to Amsterdam for “one last fling”, as it were, before commencing rehabilitation. Having spent her money on drugs and alcohol she found herself without the means to return to accommodation which she had in that city. She was approached by a man by the name of Jeff. Jeff enquired as to whether she wished to earn 2000 euros by going to London for one day. She indicated her assent. However on the following day Jeff introduced her to another male called Moxol. The latter told her that he had a bigger job and if she went to Australia she would be paid 4,050 euros. She was told that she would be carrying cocaine. Upon her agreement, Moxol put her up in a hotel in Amsterdam for two days and brought to her an empty suitcase into which she packed her clothes. Jeff and Moxol took her passport and later returned it with air tickets and visa. They gave her instructions as to what to do when she arrived in Sydney. She was told that the person who collected the suitcase would pay her the agreed fee. These men gave her some pocket money and she set off on her journey. She was driven by the recruiters from Amsterdam to Brussels. She flew from Brussels to catch the flight from Vienna. That aircraft stopped in Kuala Lumpur on the way to Sydney. There was no evidence that she was supervised by anyone connected with the importation during her journeys nor did she indicate that she believed she was subject to any. Obviously, she did not take the opportunity to terminate the arrangement by leaving at one of the stopping points.

11 There was evidence, which his Honour accepted that the respondent was being pursued by lawyers acting for debt collectors in France. Her total indebtedness was in the order of 7,000 euros, and she had accrued the debt in significant part by expenditure on drugs and alcohol.

12 Whilst it is true that on the representation of those who recruited her she believed that she was carrying cocaine, and his Honour accepted that she did not know what quantity of illicit drug she was carrying, these were not matters of particular relevance in the circumstances, having regard to her recklessness, her knowledge that she was carrying drugs of some sort, and her own statement during interview that she had told her recruiters that she would “take the risk”. She was neither naïve nor uneducated, however, her role was specifically that of a courier.

13 The ground of appeal relied upon is that the sentence was manifestly inadequate. In support thereof challenge was made to three findings by his Honour:

(a) That the respondent suffered from severe depression;
(b) That there was a reduced importance of general deterrence in such circumstances, and that the head sentence be reduced as a result, and
(c) That the respondent’s cooperation with police warranted further discount.

14 His Honour made reference to the need for general deterrence as a factor looming large for such an offence, but indicated that he was of a view that in the particular case the starting point for a head sentence should be lower. He said:

“In my view, and it seems to me in the view of the courts generally, the weight to be accorded to deterrence factors is less in a case where the crime is being committed by a person suffering from a mental illness or from a psychological disability. In fact, it is a well known principle. In this case it is clear to me that you are suffering from severe depression and anxiety, as well as your drug addiction, and that those factors led to your vulnerability to the overtures to engage in the commission of the drug importation offence. If it were only your drug addiction and drug taking and your alcohol bingeing which had created that situation, then I would not be disposed to reduce the starting point for the head sentence for the commission of this offence. However, as I have said, that is not the only factor contributing to your vulnerability. Your general psychological condition, and it was a severe condition obviously from the necessity for treatment and for medication on an ongoing basis, in my view was a significant contributing factor to the commission of this offence. In those circumstances it seems to me that it is appropriate to deal with you differently from the general run of cases of drug importation and as I have said, to reduce the starting point or to take a different starting point for the head sentence.”

15 The appellant contends that his Honour’s conclusion that the respondent was suffering from severe depression and anxiety was not warranted on the evidence. Reference is made to the report of the psychologist Ms Kennedy, and it is contended that she did no more than report on what the respondent had told her. It cannot be gainsaid that that is a fair general description of Ms Kennedy’s report. However, the report seems to be premised upon an assumption that the psychologist is supportive of that history and there is some indication of expression of opinion in that part of the report where she stated:

“Her family history renders her susceptible to health difficulties, and given the number of stressors she has encountered, reactive depression may be expected. Sarah’s only treatment for her mental health difficulties began shortly before she came to Australia when she was placed on medication, and this has been continued.”

16 Counsel for the respondent has pointed to the express submission that the sentencing judge could readily conclude that matters in the respondent’s history are matters which “led to a real and true psychological illness and that being an illness of depression and anxiety”, and that no contradictory submission was advanced by the appellant at first instance. It is also observed that the respondent was not cross examined about her claim to have been treated for depression, prescribed medication or that her history was in any relevant way inaccurate.

17 I am unpersuaded that it has been shown that his Honour’s finding was not open to him.

18 In another submission by the Crown (which I take to be an alternative by reason of its inconsistency with the submission just mentioned) it was argued that there was no basis for finding a causal relationship between “the mental disorder of the respondent and the offence”. Once it is accepted that it was open to his Honour to find that the respondent was suffering from severe depression and anxiety, then it becomes a matter for judgment whether those factors are to be weighed in terms of causality. It has long been recognized that causation is a difficult legal concept, but it is capable of being found by the application of common sense and experience and I see no error in his Honour’s determination that those existent factors led to vulnerability and hence acceptance of the overtures to engage in the commission of the offence.

19 The mere existence of a causal link does not inevitably lead to marked reduction in sentence. It is necessary to make an assessment of the “mental disorder” (whatever diagnostic label may be applicable) in order to determine what effect, if any, it should have upon sentence to be imposed. Whilst the evidence spoke of depression, it could not be insignificant that the scheduled rehabilitation treatment was for drug addiction not mental illness. It can be mentioned that the respondent’s excursion to Australia made fulfilment of arrangements to enter rehabilitation unlikely.

20 The other specific matter relied upon by the appellant challenged what his Honour described as “cooperation with police”. It is not suggested that the respondent had any further information to give but the criticism is focussed upon telling police that she did not wish to assist by going to the hotel and, presumably, pretending to continue with the crime. It is fairly conceded by counsel for the appellant that the discount allowed is not of great moment, and it is submitted that with other matters complained of it contributes to the manifest inadequacy of sentence.

21 The demonstration of manifest inadequacy is sought to be supported by the production of a schedule of cases involving MDMA and other amphetamine based narcotics in this Court. Approximately sixty cases are epitomized. Whilst I am conscious of the convenience which must attach to producing such schedules at the touch of a word processing button, I express the view that it would be more helpful if counsel, seeking to rely upon referenced cases, were to extract therefrom those in particular from which it is said that a useful guide might be derived.

22 The documentation includes cases involving persons whose activity was higher up the scale of responsibility than acting as a courier. There is also contrast to be drawn, of course, concerning the amount of pure drug involved.

23 It is useful, however, to scan some of the cases whilst bearing in mind that the respondent’s sentence was five years six months with a non parole period of two years nine months and that her involvement was not alleged to range beyond being a paid courier.

24 In making comparisons and contrasts, it should not be overlooked that most cases were determined before the repeal of s 16G of the Crimes Act 1914.

25 In R v Benais [1999] NSWCCA 236 the offender brought drugs (MDMA) from Holland to Sydney and was to be paid $7,000 upon delivery. Coincidentally this amount is very close to 4,050 euros at current exchange rates. The sentence in this case was six years imprisonment with three years non parole period. The amount of drug was .061 kgs contrasted with the 2.025 kgs imported by the respondent.

26 In R v Spillane [1999] NSWCCA 280 the offender arrived at Sydney Airport from Singapore with narcotics concealed in luggage. He had a criminal record for dishonesty but no prior drug convictions. He was sentenced to six years imprisonment with a non parole period of three and half years. The quantity was .447 kgs. The prescribed commercial quantity is .5 kgs.

27 In R v Bowers 1997 97 A Crim R 461 the offender arrived at Sydney Airport on a flight from London with narcotics (0.719 grams of MDMA) attached to his body. He was sentenced to eight and half years imprisonment with a non parole period of four and half years.

28 In R v Simon [2003] NSWCCA 147 the offender arrived from Europe with .921 grams of MDMA concealed in body packs. She was a courier to be paid $5,000 on delivery. She was sentenced to four and half years imprisonment with two and half years non parole period.

29 Whilst it is clear from the sampling which has been offered that the sentence imposed upon the respondent was extremely lenient it also shows that in a very like case of Simon, a sentence less than that imposed upon the respondent eventuated.

30 The difficulty facing the respondent is that the quantity of pure drug involved in the present case is more than twice that involved in the case of Simon, which appears to be the lowest sentence in the range of those to which attention has been drawn. Quantity is not an exclusive factor delineating some scale of punishments but it is an important factor in any overall assessment of the seriousness of offence.

31 Counsel for the respondent also drew attention to cases, in particular R v Schofield [2003] NSWCCA 3 where, on Crown appeal, by majority a sentence of five years imprisonment with a non parole period of three years was imposed in lieu of a first instance sentence of two years and four months with a non parole period of eighteen months. The case is not parallel to the present, the principal charges being two charges of attempting to possess a prohibited import (MDMA) with two further offences also taken into account on a schedule. The dissenting judge (Hulme J) would have imposed seven years imprisonment with four and half years non parole period. His judgment has attached to it a lengthy schedule of cases which it is not necessary to recite, but observation of which can be noted as well as the need for a large number of them to be considered in the light of the repeal of s 16G of the Crimes Act 1914.

32 We have also been referred to R v Klein 2001 121 A Crim R 90 where a Crown appeal was dismissed against a sentence of three years and nine months with a non parole period of two years and six months for importing cocaine which was in the offender’s shoes and taped about her body. However the quantity was less than the commercial quantity and sentence was assessed against a maximum of 25 years’ imprisonment and fine. A substantial discount of sentence was given for the offer of assistance held to be genuine. Wood CJ at CL, in dissent, considered the sentence manifestly inadequate but joined in the dismissal of the appeal in the exercise of the discretion attaching to a Crown appeal.

33 Whilst cases and statistics must be approached with caution, it is useful to observe that collated Judicial Commission statistics since the repeal of s 16G show that in twenty five cases of importing a commercial quantity of MDMA the lowest head sentence was five years imprisonment (two cases), the next lowest was six years (one case), the next seven years (three cases), and all of the balance received longer terms. Similarly, the statistics of non parole periods showed the lowest at three years (two cases), the next four years (three cases) and the balance upwards of those periods. The statistics provide no details of the ranges of facts which might affect assessment, such as cooperation with authority and quantity of import. As to the latter, the statistics would be likely to include cases where the quantity was anything over 500 grams (the minimum commercial quantity) in contrast with the respondent’s import of an amount in excess of four times the minimum commercial quantity.

34 A table of cases where pleas of guilty had been entered contained only five instances. The range of head sentence was five years imprisonment (one case), seven years (one case), eight years (one case) and twelve years (two cases). The non parole periods were three years (one case), four and half years (one case), five years (one case), and seven years (two cases).

35 It can thus be observed that a comparison of the respondent’s sentence with the larger collation of all offenders places her head sentence as less than all but two offenders and her non parole period as less than any other offender. In the small collation, comparison shows that her head sentence is less than all but one other offender and, again, her non parole period less than any other.

36 There is a recognized difficulty in applying these statistics in the absence of any detail of the particular offences and offenders beyond the presence of the essential ingredients of offence. It is, however, difficult to postulate that the respondent, particularly having regard to the quantity of prohibited drug involved, should find a reflection of her culpability among those whose sentences reflect the lowest level of appropriate sentence.

37 I turn to examine the basis upon which Dodd DCJ came to his assessment of five and half years imprisonment with two years nine months non parole period. His express starting point was imprisonment for eight years which he reduced to six years to reflect the early plea of guilty. He reduced this by a further six months on account of cooperation with police in providing details of her instructions as to contact when she arrived in Australia. He set the non parole period at about two thirds of the head sentence which he further reduced to take into account “circumstances analogous to special circumstances” as provided by New South Wales Sentencing Procedures.

38 The starting point of eight years as revealed by his Honour’s remarks on sentence was selected to reflect a finding that the respondent’s depression and anxiety should lead to a reduction in “the weight to be accorded to deterrence factors”. He added, however:

“If it were only your drug addiction and drug taking and your alcohol bingeing which had created that situation, then I would not be disposed to reduce the starting point for the head sentence for the commission of this offence”.

39 His Honour did not specify what this unreduced starting point was. Counsel for the Crown submitted that appropriately such a point lay in the range of twelve to sixteen years imprisonment. That would broadly accord with an overall analysis of sentencing patterns.

40 I would uphold the Crown submission that the selection of a starting point of eight years imprisonment must reflect such an overestimate of an appropriate reduction proportionate to the respondent’s depression and anxiety and that the consequent sentence became manifestly inadequate.

41 This Court should set aside the manifestly inadequate sentence and proceed to resentence. For that purpose I would take into account also the recent certificate of Dr Maj-Pelissier dated 23 March 2005 and the affidavits of the respondent and her father who, we were made aware, had returned to Australia for the hearing of the appeal. It is clear that the respondent has family support of which she can avail herself when released.

42 Allowing for the restraint which is recognized to be appropriate when resentencing after successful Crown appeal and allowing for factors favourable to the respondent with the exception of her plea of guilty, I would impose a head sentence of twelve years imprisonment. I would reduce this to nine years to reflect the value of the early plea of guilty. I would set a non parole period of four years six months. The sentence and non parole period should commence on the date of arrest and the non parole period would therefore expire on 12 December 2008. In determining these sentences I have taken into account the various matters specified to be so taken into account by s 16A of the Crimes Act 1914.

43 In setting the non parole period, I have adopted the proportion to head sentence applied at first instance principally in the light of the written submission by the Crown:

“Given his Honour’s factual findings on the (respondent’s) prospects of rehabilitation, the Crown does not complain about the non parole period as a proportion of the head sentence ……”

44 The consequence is very favourable to the respondent and I emphasize that the adoption of this proportion is in response to that express concession by the Crown in this particular case.

45 The formal orders which I propose are:

(a) Crown appeal against sentence allowed.
(b) Sentence imposed in the District Court quashed.
(c) In lieu thereof the respondent sentenced to imprisonment for nine years with a non parole period of four years and six months, both to date from 13 June 2004. The non parole period specified to expire on 12 December 2008.
(d) The respondent’s legal representatives directed to make the necessary explanation required by s 16F of the Crimes Act 1914 .

46 HOWIE J: I agree with the orders proposed by Grove J and his reasons for those orders.

47 HALL J: I have read in draft the judgment prepared by Grove J. I respectfully agree with the reasons and orders proposed.

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