Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: Tiknius v R [2011] NSWCCA 215
• Hearing dates: 13 May 2011
• Decision date: 22 September 2011
• Before: Tobias AJA at 1; Johnson J at 2; Hall J at 104

Decision

Leave to appeal against sentence granted.

Sentences imposed at the Sydney District Court on 6 November 2009 quashed.

On the second count, the Applicant is sentenced to imprisonment for five years commencing on 23 January 2008 and expiring on 22 January 2013.

On the first count, the Applicant is sentenced to imprisonment for eight years commencing on 23 January 2009 and expiring on 22 January 2017.

Pursuant to s.19AB Crimes Act 1914 (Cth) , a single non-parole period of five years is fixed, commencing on 23 January 2008 and expiring on 22 January 2013.

The Applicant will be eligible for release on parole on 23 January 2013.

• Catchwords: CRIMINAL LAW - sentence - pleas of guilty - aid and abet importation of commercial quantity of border controlled drug (amphetamine) - possession of unlawfully imported marketable quantity of border controlled drug (MDMA) - findings by sentencing Judge that Applicant subject to threats of harm to self and girlfriend unless he became involved in offences - Applicant an educated Lithuanian with no criminal history - whether adequate weight given to finding of duress on sentence - relevance of non-exculpatory duress as a factor on sentence - need to assess seriousness of offences in light of findings of duress - need to consider form and duration of criminal conduct, nature of threats made and opportunities available to Applicant to report matter to relevant authorities - importance of general deterrence - error established - Applicant resentenced
• Legislation Cited: Criminal Code (Cth); Crimes Act 1914 (Cth); Crimes (Sentencing Procedure) Act 1999; Criminal Appeal Act 1912
• Cases Cited: R v Liu [2005] NSWCCA 378; El-Charr v R [2007] NSWCCA 16; R v Riddell [2009] NSWCCA 96; 194 A Crim R 524; R v Z [2005] UKHL 22; (2005) 2 AC 467; The Queen v Olbrich [1999] HCA 54; 199 CLR 270; R v Razzak [2006] NSWSC 1366; 166 A Crim R 132; Le v R [2007] NSWCCA 330; R v Abusafiah (1991) 24 NSWLR 531; R v Nguyen [2008] NSWCCA 22; 181 A Crim R 72; R v Oblach [2005] NSWCCA 440; 65 NSWLR 75; R v Lorenz (1998) 146 FLR 369; R v Day [2009] SASC 84; R v Way [2004] NSWCCA 131; 60 NSWLR 168; R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271; R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106; R v Taonis (1974) 59 Cr App R 160; R v Tapasa (NSWCCA, 31 October 1997, unreported); R v N [1999] NSWCCA 187; 106 A Crim R 493; R v Liu [2005] NSWCCA 378; R v Stankovic [2006] NSWCCA 229; R v Huynh [2008] NSWCCA 16; Taiapa v The Queen [2009] HCA 53; 240 CLR 95; Anna Le v R [2006] NSWCCA 136; R v Brown (1986) 43 SASR 33; R v Trocko (SASC, 18 April 1988, BC8800351); R v Roach [2005] VSCA 162; Khoury v R [2011] NSWCCA 118; Ryan v R [2009] NSWCCA 183; R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383; Cahyadi v R [2007] NSWCCA 1; Cameron v The Queen [2002] HCA 6; 209 CLR 339
• Texts Cited: ---
• Category: Principal judgment
• Parties: Atas Tiknius (Applicant); Regina (Respondent)
• Representation: Mr T Game SC (Applicant); Mr D Staehli SC (Respondent); Michael Doughty (Applicant); Commonwealth Director of Public Prosecutions (Respondent)
• File Number(s): 2009/917; 2009/918
• Publication restriction: ---

Decision under appeal

• Citation: ---
• Date of Decision: 2009-11-06 00:00:00
• Before: Sweeney DCJ
• File Number(s): 2009/11/0038

Judgment

1 TOBIAS AJA : I agree with Johnson J.

2 JOHNSON J : This is an application for leave to appeal by Atas Tiknius with respect to sentences imposed in the Sydney District Court on 6 November 2009 for serious drug importation offences contrary to the Criminal Code (Cth).

3 Following pleas of guilty, the Applicant was sentenced as follows:

 

Offence	Maximum Penalty	Sentence
Count 1 - Between about 10 January 2008 and 23 January 2008 at Sydney, aiding and abetting the importation of a commercial quantity of a border controlled drug, amphetamine, contrary to ss.11.2(1) and 307.1(1) Criminal Code (Cth)	Life imprisonment	Imprisonment for 10 years commencing 23 January 2009 and expiring 22 January 2019
Count 2 - Between about 23 February 2007 and 24 January 2008 at Sydney, possession of an unlawfully imported marketable quantity of a border controlled drug, MDMA, contrary to s.307.6(1) Criminal Code (Cth)	Imprisonment for 25 years	Imprisonment for six years commencing 23 January 2008 and expiring 22 January 2014

 

4 There was a total effective sentence of 11 years' imprisonment and, under s.19AB Crimes Act 1914 (Cth) , a single non-parole period of six years and six months was fixed commencing on 23 January 2008 and expiring on 22 July 2014.

Grounds of Appeal

5 The Applicant relies upon the following grounds of appeal:

(a) Ground 1 - the sentencing Judge failed to give adequate weight to the mitigating fact that the Applicant committed the offences under duress.

(b) Ground 2 - the sentencing Judge failed to give adequate weight to the Applicant's demonstrated contrition.

(c) Ground 3 - the sentences for Counts 1 and 2 are manifestly excessive.

Facts of Offences

6 The sentencing hearing in the District Court commenced on 29 October 2009 and continued on 6 November 2009, with her Honour passing sentence on that day.

7 The evidence in the District Court on sentence comprised an agreed statement of facts, together with extensive oral evidence from the Applicant (occupying 48 transcript pages) and a number of documents tendered in the defence case, including a report of Ms Michelle Player, psychologist.

8 Given the grounds of appeal in this Court, it is appropriate to refer to the findings of the sentencing Judge concerning the offences. When introducing this part of the remarks, her Honour stated (ROS1-2):

"The circumstances of the offences can be discerned from the statement of facts, evidence given by Mr Tiknius, which I accepted, and documentary evidence presented on his behalf which supported some aspects of his evidence. I did not find Mr Tiknius' account of how he came to be involved in the offences inherently implausible, nor do I consider it to be a partial or total fabrication."

9 The sentencing Judge then moved to the facts of the second count (the possess MDMA offence), which occurred first in time (ROS2-3):

"The facts of the 2007 possession charge are as follows. Mr Tiknius arrived in Australia on 12 February 2007. On 18 February 2007 a sculpture weighing 695 kilograms was imported by air from Lithuania into Australia consigned to Davidus Brathus. Mr Tiknius, using the false name Brathus, leased a storage unit at Storage King Hillsdale, arranged with a freight forwarding company for the delivery of the consignment to the storage unit, hired drilling equipment and, as instructed, drilled into the pillar and retrieved some of the pills. In his second trip in 2007, he delivered them in three lots to a man he had been instructed to contact. He left Australia on 12 March 2007, the date specified in his air ticket. He returned to Australia on 11 April as instructed and left on 9 May, during which time he delivered some of the pills as directed, as I noted above. His airfare and expenses, including storage and hire charges, were paid by the man who had recruited him to come to Australia and perform these tasks, about whom I will say more later. He kept in touch with that man by email to receive instructions while he was in Australia.

In January 2008 the Australian Federal Police examined this pillar and found 182.2 grams of powder, which was analysed to be 55.1 grams of pure 3-4 MDMA. The marketable quantity for that drug is 0.5 grams. Mr Tiknius acknowledged that the pillar had contained a higher amount of the drug, an unknown marketable quantity, though less than the commercial quantity specified for that drug. The quantity of drug in each offence is not dispositive of sentence, but is a relevant factor to take into account. The wholesale value of 182.2 grams of MDMA at 30% purity was estimated at $11,000. If pressed into pills it was estimated to have a street value of between $20,640 and $34,400."

10 The sentencing Judge then made findings concerning the first count (the aid and abet importation of amphetamine offence) (ROS3):

"In respect of the 2008 offence, Mr Tiknius arrived in Australia on 10 January 2008. As on the 2007 trips, he stayed with a friend of a friend which he had arranged through that friend. Again, his airfare and expenses were paid for by the man who was giving him directions. On 14 January a sculpture weighing 497 kilograms was imported by air into Australia from Lithuania. The Australian Federal Police examined it and found it to contain 27.183 kilograms of amphetamine powder. Using the false name Brathus, Mr Tiknius contacted the freight forwarder a number of times inquiring about the consignment and arranging for its delivery. Using the same name he leased another storage unit at Storage King Hillsdale. When the consignment was delivered there under AFP control he organised with a truck hire firm to transport the column to its premises in Hillsdale and for a stone mason in adjoining premises to cut off the top of the sculpture in order that he could gain access to the drugs contained therein. Police attended the next day, 23 January, when the stone mason commenced cutting into the pillar, seized the consignment and arrested Mr Tiknius near where he was staying a short time later. The 27.183 kilograms of power was found to have a purity of 7.5%, giving an amount of 2.0338 kilograms of pure amphetamine. The commercial quantity prescribed for amphetamine is 750 grams. The wholesale value of the 27.183 kilograms of amphetamine at 7.5% purity was estimated at $408,000 and if sold in single gram weights at that purity its value was estimated at $1,902,000."

Findings Concerning Reasons for Applicant's Involvement in Offences

11 Her Honour then moved to summarise the evidence of the Applicant concerning the circumstances which drew him into the commission of the offences, before making findings concerning the duress issue and the role of the Applicant in the offences (ROS3-6):

"Mr Tiknius said he came to Australia at the behest of a Lithuanian man he met in a night club on New Years Eve 2005. The man offered Mr Tiknius some cocaine, which he had not previously used, and which they consumed together. Over the next year Mr Tiknius met this man once or twice each week in night clubs, bars or at the beach and consumed increasing amounts of cocaine given to him free by this man, whom he considered a friend. He became dependent on the cocaine, which he had never used before he was introduced to it by this man. In December 2006 the Lithuanian man, accompanied by a Russian man, demanded payment of $ [sic] 84,000 litas, approximately $42,000 Australian, for the cocaine he had been provided during the year. When Mr Tiknius said he did not have that amount of money they said they would find a job for him to do. The Russian man put a pistol to Mr Tiknius' head and said they would rape and shoot his girlfriend if he did not comply with their demand. The threat was repeated and remained constant during his subsequent dealings with the Lithuanian man and his trips to Australia. A few days after this initial demand the Lithuanian man told Mr Tiknius the debt would be expunged if he went to Australia, collected some freight, stored it and passed it to some people. Mr Tiknius was not told and did not ask the details of the freight, but thought it was something illegal. The threat to harm his girlfriend was repeated if he told the police or anyone else.

From an occasion when Mr Tiknius had been in the company of the Lithuanian man, he formed the view the Lithuanian man had connections with corrupt police. For that reason and because he feared for the safety of his girlfriend, he did not tell the police, including two police officers who were business clients of his telecommunications business because he did not think it appropriate to tell them what he described as his personal problems. He booked his airfare with money given to him by the Lithuanian man and gave the man a photocopy of his passport, which was used to produce a copy of a false passport in the name Brathus, which Mr Tiknius used as identification with the freight forwarder and drill hire company on his 2007 trip. The Lithuanian man organised Mr Tiknius' visa to Australia and for him to attend an English language school in Australia as a pretext for his trip. He undertook the two trips to Australia in 2007. While drilling into the first sculpture he damaged some of the pills with water. He was therefore required to undertake the 2008 trip.

After the demand was made of him in December 2006, Mr Tiknius felt stressed, nervous and had trouble sleeping. He went to a doctor and was prescribed some medication. Records from his local hospital in Klaipedia, Lithuania (Exhibit 2), showed Mr Tiknius consulted a doctor there on 9 January 2007, was diagnosed with sleep disorder and possible anxiety disorder and was prescribed medication including sleeping tablets. The medical record confirms he visited the doctor three more times in 2007, in March, May and September, and was diagnosed with anxiety disorder and on the last occasion possible depression. I am satisfied Mr Tiknius' anxiety and depressive symptoms contributed to his decision to accede to the demands of the Lithuanian man and commit the offences.

I am satisfied on the balance of probabilities that Mr Tiknius came to Australia and carried out the tasks I have noted above at the direction of the Lithuanian man and as a result of the pressure he felt from that man and his Russian companion, including threats to harm his girlfriend, his awareness that the Russian man was armed and his belief that he could not approach the police because the Lithuanian man had a corrupt relationship with a police chief. Nor did he consider he could confide in the police officers to whom he was providing telecommunication services in the course of his employment. His reward for undertaking the trips and tasks was to be to have his drug debt forgiven.

His role in each case of taking delivery of the object containing the drugs, storing it, retrieving and distributing part of the drugs in 2007 and attempting to gain access to the drugs in 2008 before the police intervened are at the lower end of tasks to be performed, though because of the combination of tasks he performed his role was not at the lowest level. But clearly he was subordinate to the Lithuanian man and that man's unknown associates who organised the importations. Mr Tiknius was directed by daily emails from the Lithuanian man. His role was integral to securing the imported substances in Australia and delivering some of the drugs from the first consignment to the Australian contact. He did not achieve that in relation to the second consignment before he was arrested, though he was in the course of arranging access to the drugs.

Mr Tiknius acknowledged the importance of his role, albeit at his subordinate level, to the success of the importations. He said he was angry at himself for having naively become involved in drug use and having made the decision to come to Australia, though under duress, and guilty for having potentially exposed people to the drugs he warehoused."

The Applicant's Subjective Circumstances

12 The sentencing Judge summarised the Applicant's subjective circumstances in the following way (ROS6-7):

"Mr Tiknius is 28 years old. He has no prior convictions. He was born and raised in Lithuania, the only child of his parents' marriage. When Mr Tiknius was a child, his father was violent to his mother when he drank alcohol, as a result of which Mr Tiknius developed anxiety symptoms as a child. He successfully completed school then a degree in journalism. He then worked consistently for one employer, Omnitel, a telecommunications business, and progressed to being a business relationships manager. His employer provided a positive reference. His girlfriend, who was the subject of the threats from the Lithuanian man and his companion, was his long time girlfriend since high school. Their relationship has ended since Mr Tiknius was arrested here.

In custody Mr Tiknius has been working in the laundry, studying English and computer use and attending church and bible studies. His mother has visited him once since he has been in custody. He plans to live with his parents on his return to Lithuania. His father has moderated his behaviour and their relationship has improved. Mr Tiknius is experiencing the isolation of being in custody here far from his family and friends. He suffers problems sleeping and takes medication which has not entirely resolved the problem. A psychologist, Michelle Player, assessed Mr Tiknius' symptoms in 2007 as consistent with a major depression and said his symptoms persist because of his difficulty coping with being in custody and separated from his family. Mr Tiknius' demeanour when he gave evidence was consistent with such symptoms.

Mr Tiknius stopped using cocaine in December 2006 when the demand was made of him by the Lithuanian man, so he has no current drug issues. Given his stable life before he met the Lithuanian man and the salutary experience for him of being in custody, I am of the view Mr Tiknius is unlikely to re-offend."

Other Statements and Findings in Remarks on Sentence

13 The remarks on sentence occupied seven-and-a-half transcript pages. The extracts included so far in this judgment constitute the great bulk of the remarks on sentence.

14 Given submissions advanced in support of the first and second grounds of appeal, it is appropriate to refer to the balance of the remarks on sentence.

15 After a recital of the charges and applicable maximum penalties at the commencement of the remarks, her Honour observed (ROS1):

"In sentencing Mr Tiknius for these offences I am required to take into account the relevant matters in s 16A of the Crimes Act and general deterrence, and impose sentences of severity appropriate in all the circumstances of the offences. Mr Tiknius acknowledges that sentences of imprisonment, which should only be imposed if no other sentence is appropriate, are appropriate for these offences."

16 Following the findings made concerning the offences and the manner in which the Applicant came to be criminally involved in these matters, and after assessing the Applicant's role (the extract set out at [11] above), her Honour concluded the remarks on sentence in the following way (ROS7-8):

"Mr Tiknius pleaded guilty to these two offences in the Local Court which indicated his willingness to facilitate the course of justice. I will afford him a discount of 25% of each sentence as is permissible for Commonwealth offences. I have decided that partially cumulative sentences are appropriate to reflect the total criminality in the two offences occurring at different times. As required by s 19AB of the Crimes Act, I have fixed a single non-parole period for the two sentences, proportioned in accordance with the usual range for Commonwealth offences. The sentences will commence on 23 January 2008, the date of Mr Tiknius' arrest, since when he has been in custody.

Taking all those matters into account I sentence you as follows. For the possession charge a sentence of six years imprisonment to date from 23 January 2008. For the aiding and abetting the importation charge a sentence of 10 years imprisonment to date from 23 January 2009. That is a total sentence of 11 years imprisonment. I set a single non-parole period of six years, six months imprisonment to date from 23 January 2008 and to expire on 22 July 2014."

Ground 1 - The Duress Issue

17 Mr Game SC, for the Applicant, submitted that the sentencing Judge had made a finding on the balance of probabilities in favour of the Applicant to the effect that he committed the offences under duress. He submitted that a finding of duress, falling short of the legal defence of duress, is capable of being a significant mitigating factor: R v Liu [2005] NSWCCA 378 at [20]-[21], [34]; El-Charr v R [2007] NSWCCA 16 at [27].

18 Mr Game SC submitted that current authorities on duress are somewhat opaque as to the weight which ought be given to that factor on sentence. He acknowledged that the factor will vary significantly depending upon the facts of the case, and that general deterrence will still be a relevant consideration, even in cases involving duress: R v Liu at [34]; R v Riddell [2009] NSWCCA 96; 194 A Crim R 524 at 537-538 [59]-[62].

19 Mr Game SC submitted that it is apparent from the remarks on sentence that her Honour had some regard to duress in determining the moral culpability of the Applicant. He submitted, however, that having found that duress was established, her Honour went on to make two significant errors. Firstly, she failed to take duress into account in assessing the objective seriousness of the offence. Secondly, her Honour failed to give duress adequate weight, and thus failed to allow for an appropriate reduction in the sentence imposed.

20 Senior counsel for the Applicant submitted that the only comments made by her Honour about the extent of the Applicant's role in the offences did not take into account duress in assessing the objective seriousness of those offences. Accordingly, he submitted that the failure to consider, or properly consider, duress as relevant to objective seriousness was a clear error in this case. It was submitted that this was not a case where the evidence of duress was vague. The Applicant had given evidence (accepted in full by the sentencing Judge) and documentary evidence corroborated aspects of the Applicant's testimony.

21 Mr Game SC submitted that the gravity of the duress was high in this case. The Applicant detailed the fact that a gun had been held to his head and that threats had been made to shoot and rape his girlfriend in Lithuania. Further, the Applicant had become aware that those threatening him had links to corrupt police and could use them to further their own ends. It was submitted that the Applicant was vulnerable, having developed a drug dependency by the time the threats were made.

22 He submitted that the actual findings in relation to duress were very favourable to the Applicant and should have resulted in a significant discount of the sentence that would otherwise have been appropriate.

23 Mr Game SC pointed to the defence of duress contained in s.10.2 Criminal Code (Cth) which contains both subjective and objective elements. It was submitted that her Honour had apparently come to the conclusion that the subjective aspects of the defence of duress were made out, so that the Applicant may well have been entitled to a complete defence, but for the objective measures incorporated in the test. So viewed, it was submitted that the Applicant's level of culpability was very low (and much lower than someone who engages in these activities for gain). He submitted that it was in this context that the objective seriousness of his offending should be assessed.

24 Mr Game SC submitted that her Honour fell into error in part by failing to explain the extent to which the duress influencing the Applicant was relevant to her considerations of both the objective seriousness of the offences and the circumstances in which the offences occurred. The lack of explanation as to how, and to what extent, duress was to be taken into account led to her Honour's further error in failing to give adequate weight to duress when it came to an assessment of the circumstances in which the offences occurred.

25 Senior counsel for the Applicant submitted that error is exposed by reviewing the sentences ultimately imposed on the Applicant. It was contended that neither sentence was commensurate with her Honour's findings that the Applicant operated under significant duress. It was submitted that a starting head sentence of eight years for Count 2, and of 13 years and four months for Count 1, did not properly reflect the element of duress involved in the offences. He submitted that this Court should intervene and reduce the sentences to adequately reflect her Honour's findings on this issue.

26 The Crown submitted that the sentencing Judge had undertaken a lengthy analysis of the duress issue, concluding with acceptance of the Applicant's account, and that these findings were taken into account on sentence. Specific reference was made to her Honour's opening words in the final paragraph of the remarks - "Taking all those matters into account I sentence you as follows ..." (see [16] above).

27 Although acknowledging that her Honour made no further finding as to the impact of the duress finding on the Applicant's moral culpability, the Crown contended that the favourable findings made by the sentencing Judge had been brought into account in his favour in the imposition of the sentences passed for these offences.

28 The Crown submitted that the significance of duress as a factor on sentence must vary according to the circumstances. It was necessary to have regard to the role and activities of an offender and the duration of time over which that person acted criminally. In this case, the Crown emphasised that the Applicant had made three separate journeys from Lithuania to Australia over an extended period of time and that his activities were critical to the operation in Australia.

29 The Crown submitted that it was not necessary for the sentencing Judge to, in some way, quantify the discount on sentence arising from the duress finding. It was submitted that the sentencing Judge had given weight to the duress finding and that the Applicant had not made good the first ground of appeal.

Non-Exculpatory Duress as a Factor on Sentence

30 Before moving to resolution of the first ground of appeal, it is useful to make some general observations concerning the relevance of non-exculpatory duress to the sentencing process.

31 The concept of duress is well known to the common law. In R v Z [2005] UKHL 22; (2005) 2 AC 467 at 489 [17], Lord Bingham of Cornhill said:

"The commonsense starting point of the common law is that adults of sound mind are ordinarily to be held responsible for the crimes which they commit. To this general principle there has, since the fourteenth century, been a recognised but limited exception in favour of those who commit crimes because they are forced or compelled to do so against their will by the threats of another. Such persons are said, in the language of the criminal law, to act as they do because they are subject to duress."

 

32 Where an offender commits a crime whilst acting under duress which falls short of a complete defence to the charge, that duress is capable of being a mitigating factor on penalty. The onus lies upon the offender to establish the facts which are said to operate to mitigate penalty: The Queen v Olbrich [1999] HCA 54; 199 CLR 270 at 281 [26]-[27].

33 In the context of offences against New South Wales law, a nominated mitigating factor arises where "the offender was acting under duress" : s.21A(3)(d) Crimes (Sentencing Procedure) Act 1999 ; R v Razzak [2006] NSWSC 1366; 166 A Crim R 132 at 147 [63]-[64]; Le v R [2007] NSWCCA 330 at [6]. With respect to State offences, the concept of duress is governed by common law principles and both subjective and objective elements are involved: R v Abusafiah (1991) 24 NSWLR 531; R v Razzak at 140-141 [25]-[30]; R v Nguyen [2008] NSWCCA 22; 181 A Crim R 72 at 79-81 [33]-[40].

34 With respect to Commonwealth offences, the test for duress is now contained in s.10.2 Criminal Code (Cth) , which contains both subjective and objective features. Section 10.2 provides:

"10.2 Duress

(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.

(2) A person carries out conduct under duress if and only if he or she reasonably believes that:

(a) a threat has been made that will be carried out unless an offence is committed; and

(b) there is no reasonable way that the threat can be rendered ineffective; and

(c) the conduct is a reasonable response to the threat.

(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out."

35 The construction of s.10.2 was considered by this Court in R v Oblach [2005] NSWCCA 440; 65 NSWLR 75, where it was observed (at 86 [70]) that threats to an offender falling short of duress could be a relevant factor on sentence.

36 There is no reference in s.16A Crimes Act 1914 (Cth) to duress as a factor to be taken into account on sentence for a Commonwealth offence. However, a Court must impose a sentence that is of a severity appropriate in all the circumstances of the offence: s.16A(1). The Court must take into account the nature and circumstances of the offence (s.16A(2)(a)) and the need to ensure that the person is adequately punished for the offence (s.16A(k)).

37 The relevance of non-exculpatory duress in mitigation of sentence may arise after trial and conviction, where duress has been a trial issue. In that case, it will be necessary for the sentencing Judge to make factual findings as part of an assessment whether this factor assists the offender on sentence and, if so, to what extent. Of course, the fact that the jury has rejected the defence of duress does not mean that threats or other conduct falling short of the defence, cannot be taken into account on sentence: R v Oblach at 86 [69]-[70].

38 Where the trial has proceeded before a Judge sitting alone, the findings made leading to the rejection of the defence of duress may assist a determination of the relevance of non-exculpatory duress on sentence: R v Lorenz (1998) 146 FLR 369 at 377.

39 Where an offender pleads guilty to an offence, there is, of course, an admission of all the elements of the offence and an acceptance that a complete defence of duress is not available: R v Razzak at 140 [27].

40 Whether an offender is able to discharge the onus on the civil standard of establishing mitigating facts involving non-exculpatory duress will, of course, depend upon the particular case. In some cases, the prosecution case may contain evidence which is relevant to this question in a record of interview or otherwise. Evidence may be given by the offender on sentence which asserts the existence of threats. If this is done, that evidence may be tested by the prosecution in cross-examination.

41 The role on sentence of non-exculpatory duress was described generally in R v Day [2009] SASC 84, where Sulan J (Doyle CJ and White J agreeing) stated at [35]:

"There may be instances in which a person acts under fear or from threats as a result of which he may be considered to be less culpable than an offender who is not under pressure to offend. The rationale for regarding such circumstances as a mitigating factor were discussed by King CJ in Trocko [(1988) 142 LSJS 412] . He said:

'I think that as a matter of principle threats made to an offender which fall short of supporting a defence of duress may nevertheless be taken into account by way of mitigation of penalty. I think that that must be so for two reasons. The fact that a person acts out of fear in consequence of intimidation may well in certain circumstances affect the degree of his subjective or moral culpability with respect to the conduct for which he is before the court. Moreover, the same consideration may affect his prospects of rehabilitation. The fact that the offence has not been committed out of motives of greed or malice but rather out of fear may carry with it the consequence that if the cause of the fear is removed, the offender will be unlikely to offend again. But whether in a particular case the fact that fear of intimidation has played a part in the commission of offences, should result in a reduction in penalty must depend on the circumstances of the particular case'."

42 In assessing the objective seriousness or gravity of an offence, matters of motivation, such as duress, are causally related to the commission of the offence and may be classified as circumstances of the offence: R v Way [2004] NSWCCA 131; 60 NSWLR 168 at 186-187 [86]. These statements in R v Way may be taken to have general application, extending beyond consideration of standard non-parole period offences (not relevant to the Applicant's offences).

43 With respect to drug importation offences, the Courts have observed that, as a matter of commonsense, it should be inferred, unless there is evidence to the contrary, that a person who is importing drugs is doing so for profit: R v Kaldor [2004] NSWCCA 425; 150 A Crim R 271 at 297 [104]; R v Nguyen; R v Pham [2010] NSWCCA 238; 205 A Crim R 106 at 127 [72](f). Motive is relevant to an assessment of objective gravity of an offence. It is relevant if the offence is committed because of threats and fear of harm to self or others rather than financial profit or greed. These matters bear upon the moral or true culpability of an offender: R v Z at 492 [22].

44 There have been a number of cases where an offender claims on sentence that his or her involvement in a drug importation or supply offence was the product of threats to self and family, with the threats sometimes coupled with the demand by those making the threats that involvement in the drug supply or importation is required to discharge an existing debt. Whether an offender's claim of this type is accepted depends, of course, on the facts of the particular case.

45 Speaking generally, sentencing courts are entitled to approach claims of this sort with a significant degree of circumspection. Claims may be easily made concerning the alleged conduct of persons in another country which is said to have applied pressure upon an offender: Anna Le v R [2006] NSWCCA 136 at [32]. It has been said that verification of a spurious claim of duress may prove difficult: R v Z at 492 [22].

46 A careful and close assessment of evidence adduced to support such a claim should be made, with the onus of proof upon the offender kept firmly in mind.

47 That such events can occur, of course, has been recognised by sentencing courts. In R v Taonis (1974) 59 Cr App R 160, in the context of a drug importation case where it was common ground that the offender had become involved in the crime as a result of threats, Scarman LJ (for the Court of Appeal also comprising Edmund Davies LJ and Boreham J) observed at 160-161:

"... I fear that such is the financial attraction of this evil trade, that those who organise it and derive major profits do descend to threats of violence to persuade people like this appellant to do the dirty work of picking up the drugs and bringing them through the customs barriers of this country."

48 Australian drug supply or importation cases, where a claim of non-exculpatory duress has been made on sentence (with differing outcomes), include R v Tapasa (NSWCCA, 31 October 1997, unreported); R v N [1999] NSWCCA 187; 106 A Crim R 493; R v Oblach at 86 [69]-[70]; R v Liu [2005] NSWCCA 378; R v Stankovic [2006] NSWCCA 229; R v Huynh [2008] NSWCCA 16; R v Nguyen and R v Riddell .

49 Where the offender discharges the onus and satisfies the sentencing Court that a factual finding should be made that the offender's involvement in the offence was affected by duress, it will remain for the Court to determine what weight should be given to that factor on sentence. This will involve, amongst other things, consideration of the form and duration of the offender's criminal conduct, the nature of the threats made and consideration of opportunities which were available to the offender to report the matter to relevant authorities.

50 In addition, it is necessary to keep in mind, even at the sentencing stage, some of the policy considerations underlying the law of duress. In Taiapa v The Queen [2009] HCA 53; 240 CLR 95 at 106 [31], French CJ, Heydon, Crennan, Kiefel and Bell JJ, accepted as a starting point when considering the reasonableness of a person's actions (concerning the defence of duress), the proposition stated by King CJ in R v Brown (1986) 43 SASR 33 at 40:

"The ordinary way in which a citizen renders ineffective criminal intimidation is to report the intimidators and to seek the protection of the police. That must be assumed, under ordinary circumstances, to be an effective means of neutralising intimidation. If it were not so, society would be at the mercy of criminals who could force pawns to do their criminal work by means of intimidation."

51 General deterrence has a very substantial role on sentence in cases where non-exculpatory duress is relied upon by the offender: R v Riddell at 536-539 [54]-[63]. The grooming and pressuring of persons to become involved in drug importation offences have been said to be "unremarkable features of many importation offences" : Anna Le v R at [32]; R v Huynh at [11]. At times, the persons targeted by those recruiting them are said to have submissive or compliant personalities ( R v Liu at [34]) or to be naive ( Anna Le v R at [32]).

52 In R v Roach [2005] VSCA 162, Callaway JA (Ormiston and Charles JJA agreeing) observed at [15]:

"General deterrence is not excluded by threats. On the contrary, general deterrence may provide a counter-threat."

53 In R v Z , Baroness Hale of Richmond adverted to considerations of this type at 509-510 [70]:

"As Professor Andrew Ashworth, Principles of Criminal Law , 4th ed, (2003), p 228 points out, there are other policy problems with relying on duress as a mitigating factor:

'Mitigation may be right if 'desert' is the basis for sentence, but supporters of deterrent sentencing have a particular problem. Their general approach is to maintain that the stronger the temptation or pressure to commit a crime, the stronger the law's threat should be in order to counterbalance it. The law and its penalties should be used to strengthen the resolve of those under pressure.'

That is, indeed, a common approach to sentencing: in drug smuggling cases, for example, the 'mule' may well have been subjected to intense pressure to carry the goods into the United Kingdom, but heavy sentences are imposed, not only to deter others from succumbing to such pressures, but also to deter the barons from using them. Mr Perry, for the Crown, argued that it was doing the vulnerable no favours to expand the scope of duress for their benefit, as this would merely encourage their duressors to exploit them."

54 An assessment of these various considerations, some of which pull in different directions, is required in a case where non-exculpatory duress is established by an offender.

Resolution of First Ground

55 I return to this case.

56 In Khoury v R [2011] NSWCCA 118, Simpson J (Davies J and Grove AJ agreeing) observed at [71]:

"Assessment of the objective gravity of any offence has traditionally been an essential element of the sentencing process: R v Geddes (1936) 36 SR (NSW) 554; R v Dodd (1991) 57 A Crim R 349. It should not be doubted that any sentencing decision calls for attention to be paid to the objective gravity of the offence: Markarian v R [2005] HCA 25; 228 CLR 357."

57 This proposition applies as much to sentencing for a Commonwealth offence, where the terms of s.16A Crimes Act 1914 (Cth) need to be considered. There is force in the Applicant's submission that the remarks on sentence in this case do not assess the objective gravity of the Applicant's crimes.

58 This Court is generally reluctant to entertain favourably grounds of appeal which contend that there was a failure to give "adequate weight" to a factor on sentence: Ryan v R [2009] NSWCCA 183 at [33]. Matters of weight are for the sentencing Judge. Unless it be demonstrated that the sentencing Judge placed so little weight on the duress finding that the sentence fell outside the appropriate exercise of sentencing discretion, there is no basis for appellate intervention: El-Charr v R at [28].

59 A significant feature of the submission in support of the first ground of appeal is that her Honour moved from strongly favourable findings on the duress issue to the imposition of sentence, without any assessment of the impact of the duress finding on the objective gravity of the Applicant's offences. In my view, this complaint is made out in this case.

60 Her Honour's acceptance of the Applicant's evidence was a practical starting point in an assessment of the objective gravity of the Applicant's offences. What was then necessary, to comply with relevant principles, was an articulated assessment by her Honour of the impact of the finding of duress upon the objective gravity and moral culpability of the Applicant's offences. This did not require an elaborate and detailed analysis. However, some analysis, and an expression of conclusions, was required. It did not happen in this case.

61 The very fact that an unusual and favourable finding was being made, which would operate in the interests of the Applicant, required analysis and conclusions with respect to moral culpability and objective seriousness of the offences. In light of her Honour's findings, this was a most important feature in this case, bearing upon the motivation of the Applicant to become involved in serious criminal activity.

62 To determine whether the first ground of appeal is made good, it is appropriate for this Court to take her Honour's factual findings and to make further findings concerning the objective seriousness of these offences and the Applicant's moral culpability.

63 Considerations of the type raised at [49] above require attention. What was the form and duration of the Applicant's criminal conduct? What opportunities did he have to report the matter to the authorities? What was the nature of the threats made?

64 Her Honour characterised the Applicant's role in each offence as not being at the lowest level, but as being clearly subordinate to the Lithuanian man and his associates who had organised the importations. The Applicant's role was integral to the criminal conduct.

65 The Applicant travelled three times to Australia in the process of committing these offences. It was not a single trip committed in a short period of time.

66 The relatively elaborate nature of the Applicant's activities in the criminal enterprise should also be kept in mind. With respect to the second count, the possession offence committed in 2007-2008, the Applicant:

(a) booked return air travel from Lithuania to Australia twice;

(b) travelled from Lithuania to Australia twice;

(c) arranged accommodation in Australia for the two stays;

(d) leased a storage facility for the storage of the granite pillar;

(e) liaised with a freight-forwarding agency for the delivery of the granite pillar to the storage facility;

(f) leased a drill to access the drugs within the granite pillar;

(g) drilled into the pillar to retrieve the drugs; and

(h) contacted the intended recipient in Australia for the delivery of the drugs.

67 With respect to the aiding and abetting offence in 2008, the Applicant:

(a) booked return air travel from Lithuania to Australia;

(b) arranged accommodation within Australia;

(c) renewed the leasing of a storage facility;

(d) liaised with a freight-forwarding agency for the delivery of the shipment to the storage facility;

(e) arranged for a stone cutter to access the drugs from within the granite sculpture; and

(f) arranged delivery of the pillar to the stone cutter for the drugs to be accessed.

68 Clearly, the criminal activities of the Applicant extended far beyond those of the usual type of drug importer who has been conscripted by threats, namely a "mule" or carrier of drugs into Australia. The Applicant used his intelligence and life skills in a number of respects in Australia in aid of the criminal enterprise.

69 Where (as in the Applicant's case) the offending occurs over an extended period and there were opportunities available to report the threats to police and authorities in Australia, well removed from the place where the threats were made, then the mitigating value to be given to duress may be reduced.

70 This is especially so as the Applicant's concerns about Lithuanian police appear to have been somewhat oblique. Using the words in Taiapa v The Queen at 109-110 [40], it may be said that the Applicant's "unparticularised concern that police protection may not be a guarantee of safety" to himself and others in Lithuania, means that his fear ought operate less in his favour on sentence. To do otherwise would operate against public policy considerations concerning duress, even on sentence.

71 A further factor here is that the Applicant made three separate return trips between Lithuania and Australia in 2007 and 2008 to further his involvement in these crimes. Not only were there opportunities over an extended period to report those threatening him, but once he was involved criminally, the Applicant was exercising a degree of autonomy and was fulfilling a trusted role, even though he was influenced by fear: R v Riddell at 532-536 [33]-[52]. The Applicant was not supervised in his criminal activities in Australia: R v Stankovic at [44].

72 It is also relevant that the situation in which the Applicant found himself was, in a sense, one of his own making in that he chose to associate himself, over a protracted period, with the person who provided him with the drugs and who came to threaten him: R v Trocko (SASC, 18 April 1988, BC8800351, pages 5-6). The Applicant's offences involved not a single offence of short duration, but a course of conduct over an extended period: R v Trocko at pages 6-7. Nor did the Applicant, when apprehended, reveal the identity of those who had threatened him. These considerations operate to reduce the mitigating effects of the threats which influenced his offending: R v Trocko at pages 6-7.

73 Nevertheless, the sentencing Judge found that the Applicant was acting under significant pressure, falling short of a defence of duress, involving ongoing threats directed to his girlfriend and himself and including the production of a firearm. Her Honour's findings accepted that the Applicant believed that serious harm would be done to his girlfriend, and perhaps others in Lithuania, if he did not co-operate with those making the threats, and that the Applicant believed that law enforcement authorities in Lithuania could not safely be relied upon to protect his girlfriend and family in Lithuania.

74 All of this, according to the findings of the sentencing Judge, followed a course of conduct whereby the Applicant was sucked in by those threatening him through provision of cocaine and then demands for payment, all of which were directed towards manipulation of the Applicant to undertake travel to Australia to advance the criminal ends of these persons.

75 The Applicant had employment in Lithuania with no criminal history there or elsewhere. The primary factual findings of the sentencing Judge, in my view, ought to have translated into a finding of significant reduction in the Applicant's moral culpability and a corresponding reduction, in the unusual circumstances of this case, in the objective seriousness in the Applicant's offences.

76 I accept the submission of Mr Game SC that the sentences imposed for these offences do not indicate that adequate weight was given to the strong primary findings made by the sentencing Judge on the issue of duress. Completion of the necessary process of analysis, and an assessment of the objective gravity of these offences, required more in the most unusual circumstances of this case.

77 The Applicant has demonstrated that the sentences imposed fell outside the appropriate exercise of sentencing discretion.

78 I am satisfied that the first ground of appeal has been established.

Ground 2 - The Remorse Issue

Submissions

79 Mr Game SC submitted that s.16A(2)(f) Crimes Act 1914 (Cth) required the sentencing court to take into account the degree to which the Applicant had shown contrition for his offences. It was submitted that the Applicant had given evidence of his remorse and that further evidence of his contrition was contained in the report dated 17 April 2009 of Ms Player.

80 Mr Game SC submitted that express allowance had not been made for the Applicant's contrition. A mere summary of the evidence of contrition given by the Applicant did not demonstrate that any, or any sufficient, weight had been given to it.

81 The Crown submitted that the absence of express reference to contrition, against the background of reference being made to the Applicant's evidence in this respect, did not demonstrate that the second ground had been made out.

Decision

82 The sentencing Judge allowed a 25% discount for the Applicant's pleas of guilty entered in the Local Court which had indicated his willingness to facilitate the course of justice. This discount was allowed in accordance with the principles in R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 419 [160], which may be applied to Commonwealth offences: Cahyadi v R [2007] NSWCCA 1 at [34]; Cameron v The Queen [2002] HCA 6; 209 CLR 339 at 343 [14]. That discount reflects the utilitarian value of the pleas of guilty and the associated willingness to facilitate the course of justice. It did not include a discount for contrition, which should be separately reflected.

83 Her Honour's remarks on sentence had made general reference to s.16A Crimes Act 1914 (Cth) (at [15] above). The written submissions provided to the District Court accepted that there was evidence of contrition in this case (AB67).

84 There was no controversy in this case that the Applicant was entitled to have evidence of his contrition taken into account in his favour on sentence. The appropriate course was for her Honour to advert expressly to this by reference to s.16A(2)(f) Crimes Act 1914 (Cth) . The absence of any reference to this factor leaves the sentencing process vulnerable to the challenge contained in the second ground of appeal.

85 I keep in mind, however, that the ground contends that the sentencing Judge failed to give "adequate weight" to this factor. There is an acceptance in the ground of appeal that some weight was given to it on sentence.

86 In the end, I am not persuaded that this ground of appeal has been made good. Even if it had merit, the impact of success on this ground would be modest. The position may be contrasted with the conclusion reached on the first ground of appeal.

87 I would not uphold the second ground of appeal.

Ground 3 - The Sentences Are Manifestly Excessive

Submissions

88 Mr Game SC submitted that success by the Applicant on Ground 1 (in particular) and Ground 2 ought lead to the conclusion that the sentence on each count is manifestly excessive. It was submitted that, once proper weight was given to the duress finding, a Court would be satisfied that the sentences are such that intervention and resentencing is required.

89 The Crown submitted that the sentences imposed were not manifestly excessive. In support of this submission, the Crown pointed to sentences imposed in other cases, although recognising that the relatively unusual circumstances of the duress component in this case made comparison with other cases more difficult than it would otherwise be.

Decision

90 I approach the determination of this ground upon the basis that the Applicant has established error in accordance with the first ground of appeal, but not the second.

91 The Applicant has committed serious offences, punishable by maximum penalties of life imprisonment and imprisonment for 25 years respectively.

92 The amphetamine offence involved a pure quantity of amphetamine of 2.0338 kilograms (about 2.7 times the commercial quantity for that drug (750 grams)).

93 The pure quantity of MDMA (ecstasy) involved in the other offence, and the total quantity of the substance imported, are not known. The pure quantity of MDMA within the substance actually seized was 55.1 grams.

94 The analysis undertaken at [63] to [75] above should be kept in mind in assessing this ground as well.

95 This was a case where the requirements for individualised justice, having regard to all the circumstances of the case, called for a finding that the objective seriousness of the Applicant's offences was significantly reduced, requiring the imposition of lesser sentences than those imposed by the sentencing Judge.

96 In view of the findings concerning the first ground, I am satisfied that the Applicant has made good the third ground of appeal as well.

Resentencing the Applicant

97 I am satisfied that the imposition of lesser sentences is warranted in law in this case: s.6(3) Criminal Appeal Act 1912.

98 It is necessary to give full effect to the findings of the sentencing Judge concerning duress. This will bring to account the duress finding in assessing the nature and circumstances of each offence for the purpose of s.16A(2)(a), and in determining sentences which are of a severity appropriate in all the circumstances (s.16A(1)) and which ensure that the Applicant is adequately punished for his offences (s.16A(2)(k)). Significant weight must be given to general deterrence, a powerful factor on sentence in a case such as this.

99 After taking into account the objective and subjective features of the case and relevant factors under s.16A Crimes Act 1914 (Cth) , and the important element of general deterrence, and allowing for the 25% discount for the Applicant's pleas, I am satisfied that a sentence of imprisonment for eight years commencing 23 January 2009 and expiring on 22 January 2017 is appropriate for the first count, and that a sentence of imprisonment for five years commencing 23 January 2008 and expiring on 22 January 2013 is appropriate for the second count.

100 I am satisfied that a period of accumulation for one year remains appropriate as between the sentences for the first and second counts.

101 These sentences will produce an overall aggregate sentence of imprisonment for nine years commencing on 23 January 2008 and expiring on 22 January 2017. A single non-parole period ought be fixed for the purposes of s.19AB(1) Crimes Act 1914 (Cth) . In my view, a non-parole period of five years commencing on 23 January 2008 and expiring on 22 January 2013 ought be fixed. In my view, a non-parole period of this length constitutes the minimum period for which the Applicant should remain in prison having regard to the objective seriousness of the offences, the Applicant's subjective circumstances and all the purposes of punishment, particularly general deterrence, which remains a significant factor on sentence.

102 Before concluding this judgment, I should emphasise that this is a particularly unusual case. Although the statements of principle contained in the judgment may have general application, the decision, on its facts, has no precedential value. The decision should not be taken to provide a benchmark for reduction of a sentence on the grounds of non-exculpatory duress.

 

103 I propose the following orders:

(a) leave to appeal against sentence granted;

(b) sentences imposed at the Sydney District Court on 6 November 2009 are quashed;

(c) on the second count, the Applicant is sentenced to imprisonment for five years commencing on 23 January 2008 and expiring on 22 January 2013;

(d) on the first count, the Applicant is sentenced to imprisonment for eight years commencing on 23 January 2009 and expiring on 22 January 2017;

(e) pursuant to s.19AB Crimes Act 1914 (Cth) , a single non-parole period of five years is fixed, commencing on 23 January 2008 and expiring on 22 January 2013;

(f) the Applicant will be eligible for release on parole on 23 January 2013.

104 HALL J : I agree with the reasons and orders as proposed by Johnson J.

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Decision last updated: 22 September 2011