R v Bittencourt-Silva - [2019] NSWDC 80

District Court

New South Wales

Medium Neutral Citation: R v Bittencourt-Silva [2019] NSWDC 80
Hearing dates: 31 January 2019
Date of orders: 31 January 2019
Decision date: 31 January 2019
Jurisdiction: Criminal
Before: M L Williams SC DCJ
Decision:
A term of imprisonment of five years, eight months with a non-parole period of two years, ten months: at [22].

Catchwords: SENTENCING – single offence – importing a commercial quantity of a border controlled drug – cocaine – guilty plea – expressions of remorse – financial gain – general and specific deterrence
Legislation Cited: Crimes Act 1914 (Cth)
Criminal Code (Cth)
Cases Cited: Adams v The Queen (2008) 234 CLR 143
DPP (Cth) v Gow [2015] NSWCCA 208
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
Legault v R [2014] QCA 280
R v Agboti [2014] QCA 280.
R v Cunha; R v Bernardo [2017] QCA 6
R v De La Rosa (2012) 79 NSWLR 1
Xiao v R (2018) 96 NSWLR 1
Texts Cited: None
Category: Sentence
Parties:
Regina (Crown)
Kamila Bittencourt-Silva (Offender)
Representation:
Ms C Nguyen (CDPP)
Mr P Coady (Counsel for the offender)

File Number(s): 2018/64472

Judgment

Kamila Bittencourt-Silva married her childhood sweetheart in Brazil and at the age of 15 had the first of three children to that man. She separated from him when she found out that he was having an affair and despite efforts at rebuild the relationship they remain separated. She found herself in difficult financial circumstances where she lived in the Santa Catarina region of Brazil and it led to her succumbing to an offer from an acquaintance to who she had disclosed her financial predicament. That acquaintance had told her that she had needed money on a previous occasion and had gone on a trip to bring money into the country and gave her the contact number of the man who had helped her. That led her into the scheme which leads to her being in custody and standing for sentence today on a charge under s 307(1) of the Criminal Code (Cth) of importing a commercial quantity of border controlled drugs being 3.27 kilograms of cocaine, which carries a maximum penalty of life imprisonment.
She gave evidence today and affirmed the history which had been given to a psychologist, including the fact that having collected the suitcase to carry out of Brazil and into Australia, she initially assumed it contained cash as a means of tax avoidance. She then found out that her mother had suffered an accident and told the man that had given her the suitcase that she could not go on the trip as her mother needed her help. She was told that her family would be in danger if she did not carry out the task that she had offered to do. Mr Coady of counsel for the offender does not put that the evidence rises high enough to found a claim of exculpatory duress, but it is a matter to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bittencourt-Silva

Details

AGLC: R v Bittencourt-Silva [2019] NSWDC 80
Case: [2019] NSWDC 80
Decision Date: 31 January 2019

CaseChat Overview and Summary

The appellant, Bittencourt-Silva, was convicted of a single offence of importing a commercial quantity of a border-controlled drug, specifically cocaine, and was sentenced to imprisonment by the Supreme Court of New South Wales. Bittencourt-Silva appealed against the severity of his sentence, arguing that the sentence imposed by the trial judge was excessive and that the non-parole period was too long. The appeal was heard by the New South Wales Court of Criminal Appeal.

The primary legal issue before the Court of Criminal Appeal was whether the sentence imposed by the trial judge was manifestly excessive. The Court had to consider the seriousness of the offence, the appellant's expressions of remorse, the potential for rehabilitation, and the purposes of sentencing, including general and specific deterrence. The Court also had to determine whether the trial judge had properly exercised his discretion in setting the non-parole period.

The Court of Criminal Appeal held that while the appellant's expressions of remorse and the absence of any prior convictions were mitigating factors, the seriousness of the offence and the need for general deterrence required a significant term of imprisonment. The Court found that the trial judge had appropriately exercised his discretion in determining the sentence and the non-parole period. The appeal was dismissed, and the original sentence was upheld.

The Court of Criminal Appeal confirmed the sentence of imprisonment of five years and eight months with a non-parole period of two years and ten months. The Court held that the sentence was not manifestly excessive and that the trial judge had properly considered all relevant factors in imposing the sentence.

Orders

Orders of the court

A term of imprisonment of five years, eight months with a non-parole period of two years, ten months: at [22].

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Bittencourt-Silva [2019] NSWDC 80
Hearing dates:	31 January 2019
Date of orders:	31 January 2019
Decision date:	31 January 2019
Jurisdiction:	Criminal
Before:	M L Williams SC DCJ
Decision:	A term of imprisonment of five years, eight months with a non-parole period of two years, ten months: at [22].
Catchwords:	SENTENCING – single offence – importing a commercial quantity of a border controlled drug – cocaine – guilty plea – expressions of remorse – financial gain – general and specific deterrence
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code (Cth)
Cases Cited:	Adams v The Queen (2008) 234 CLR 143 DPP (Cth) v Gow [2015] NSWCCA 208 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 Legault v R [2014] QCA 280 R v Agboti [2014] QCA 280. R v Cunha; R v Bernardo [2017] QCA 6 R v De La Rosa (2012) 79 NSWLR 1 Xiao v R (2018) 96 NSWLR 1
Texts Cited:	None
Category:	Sentence
Parties:	Regina (Crown) Kamila Bittencourt-Silva (Offender)
Representation:	Ms C Nguyen (CDPP) Mr P Coady (Counsel for the offender)
File Number(s):	2018/64472