He Made Me Do It! Duress in Criminal Cases

In the case of one Lithuanian man, A. T., the defendant was picked up in Australia after an alleged drug importation.

In 2007, he booked a storage unit under a false name, and was also the consignee of a sculpture which was found to contain a large amount of drugs. A. T. drilled a hole in the pillar and took out several pills.

On his second trip that year, A. T. gave some of the pills to a man he was instructed to contact. Later, the Federal Police examined the pillar and found 182.2 grams of powder inside, which turned out to contain 55.1 grams of pure MDMA. He was charged with aiding and abetting the importation of border-controlled drugs as well as possession of a marketable quantity of the same drug.

But A. T. had a different story – claiming that he acted under the threat of violence. His version of the events was that he became addicted to drugs after coming to Australia and meeting a Russian man in a nightclub who supplied him with drugs for free. One day out of the blue, the man demanded around $42,000 AUD ‘payment’ for the drugs that A. T. had used.

A. T. s tried to explain that he didn’t have that kind of money, so the two men said that they would find a job for him to do in order to repay the debt.

According to A. T., the Russian man put a gun to his head and said he would rape and shoot his girlfriend if he didn’t comply. He repeated the threat several times, warning that harm would come to him and his girlfriend if the matter was reported to police. Fearful for his safety, A. T. agreed to collect the sculpture and hand over the drugs.

What is duress?

Duress is when a person commits an offence because threats were made against them to such an extent that a reasonable person in their position would have complied.

It is a form of ‘compulsion’; which means that the person’s will is so overborne that they are acting involuntarily.

Duress as a complete defence

The criminal law works on the basis that people should not be punished or held accountable if they were not acting voluntarily, and duress is consequently a well-recognised defence.

If an accused person raises some evidence of duress, they do not then bear the responsibility of proving it any further. Rather, once the defence is raised, it is then for the prosecution to prove beyond reasonable doubt that duress did not occur. In legal terminology, the prosecution ‘bears the onus of negativing the defence beyond reasonable doubt’.

So how does duress work in the courtroom?

There are a number of steps that the ‘fact-finder’ – e.g. the magistrate in the local court or the jury in a district court trial – must take when dealing with the issue of duress.

They must first consider whether there is evidence of duress.

For there to be such evidence, the fact-finder must believe that there is evidence that:

  1. The defendant honestly believed that there was imminent danger of death or serious injury either to him or herself, or to someone else. It does not matter if the belief was mistaken, as long as it was genuine (the ‘subjective test’), and
  2. A person of ordinary firmness of mind in the same position as the defendant could similarly have had their will overborne and acted in the same way (the ‘objective test’). In making an assessment, the fact-finder should take into account a whole range of factors including the defendant’s level of maturity, their gender and all of the surrounding circumstances.

In short, this means that there must be some evidence that the defendant believed there was an imminent danger and that his or her response might be considered reasonable in the circumstances.

If the defendant is able to raise such evidence, then the prosecution must exclude that possibility beyond reasonable doubt.

Duress is a ‘complete defence’, which means that a defendant must be found ‘not guilty’ if the prosecution fails to negative the evidence.

Back to A.T’s case

Despite his version of the events, A.T. ultimately decided to plead guilty rather than maintain his plea of not-guilty and face a jury trial.

Pleading guilty can lead to a defendant receiving a ‘discount on sentencing’ of up to 25%.

This is often called a ‘utilitarian discount’ because it provides utility to the community by saving court time and public money.

The reasons behind the guilty plea are uncertain – perhaps A. T. thought it would be too hard to raise evidence of duress. Or maybe he thought that the prosecution would prove that he wasn’t acting under sufficient duress.

In any event, A. T.’ defence lawyer sought to raise duress as a ‘mitigating factor’ (one that lessens the penalty) during his ‘sentencing proceedings’ – which is the time when the judge decides what penalty to impose.

Despite the guilty plea and claims of duress, the offence was far too serious to save A. T. from prison – and he ultimately received a prison sentence of ten years for the commercial importation charge, with a ‘non-parole period’ of six and a half years. The non-parole period is the time a person must spend in prison before being eligible to apply for release.

A. T. later sought to appeal the sentence on the basis that it was ‘manifestly excessive’ because the judge did not give sufficient weight to the existence of duress.

Non-exculpatory duress as a mitigating factor

If the level of duress falls short of a ‘complete defence’, the court must nevertheless consider evidence of duress during the sentencing process.

In NSW, a whole range of factors that ‘aggravate’ (make more serious) and ‘mitigate’ (make less serious) offences are listed in section 21A of the Crimes (Sentencing Procedure) Act.

Section 21A(3)(d) of the Act states that a mitigating factor is where “the offender was acting under duress.”

This means that any evidence of duress must be taken into account when the court is arriving at a particular sentence.

A. T.’ appeal

A. T.’s case came before the the NSW Court of Criminal Appeal, who explored the issue of non-exculpatory duress during sentencing. The court noted that the primary motivation for criminal offences is normally malice or greed, rather than fear. It said that the usual motive in drug importation cases is greed.

The court pointed out that motive is relevant to assessing the seriousness of many criminal offences, and that offences committed out of fear may be considered less serious than the same offences committed out of malice or greed.

The court ultimately found that A. T. should indeed have received a shorter sentence, despite the strong need for ‘general deterrence’ (ie deterring others) in drug importation cases. His full term sentence for the most serious charge of commercial importation was therefore reduced to eight years, and the non-parole period was reduced to five years.

Using duress as a defence

The usefulness of duress will depend on the individual circumstances of any given case.

Indeed, the Court of Criminal Appeal in A. T. made it clear that the case is not to be taken as a benchmark for sentence reductions for partial duress, stating:

“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.”

However, a criminal defence lawyer who is experienced in serious criminal trials will be able to assess the evidence and advise you about how duress might be used to get the best possible outcome in your case.

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers, Sydney's leading firm of criminal and traffic defence lawyers.
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