District Court
New South Wales
Medium Neutral Citation: R v Bittner; R v Martinez [2020] NSWDC 292 Hearing dates: 23-24 January 2020, 18 May 2020 Date of orders: 18 May 2020 Decision date: 18 May 2020 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: For the offence of attempt to possess a commercial quantity of unlawfully imported drug contrary, Mr Bittner is sentenced to a term of imprisonment of 6 years 9 months, with a non-parole period of 4 years. For the offence of possess prohibited drug, a s10A conviction with no further penalty is imposed. Orders for Bittner at [58].
For the offence of aid, abet, counsel or procure the commission of an offence, Mr Martinez is sentenced to a term of imprisonment of 2 years, 6 months. The offender is to be released on 7 June 2020 upon entering into a recognizance of the sum $500 without surety and a further condition of being of good behavior until 7 July 2021. Orders for Martinez at [112].Catchwords: SENTENCE – attempted possession of an unlawfully imported border controlled drug – aid, abet, counsel or procure the commission of an offence - 4339.8 grams of cocaine – illegally imported from Peru into Australia - Controlled Operation -no prior criminal history – mental illness and significant hardship– parity with co-offenders – imprisonment
Legislation Cited: Criminal Code 1995 (Cth)
Drug Misuse and Trafficking ActCases Cited: Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
Green v R; Quinn v R (2011) 244 CLR 462
Hill v the Queen; Jones v the Queen [2010] HCA 45
Dipangkear v R [2010] NSWCCA 156
Le v R [2017] NSWCCA 26
Markarian v The Queen [2005] HCA 25
Muldrock v The Queen (2011) 244 CLR 120
Pearce v The Queen (1998) 194 CLR 610
Power v The Queen (1974) 131 CLR 623
R v Leroy (1984) 2 NSWLR 441
R v MacLeod [2013] NSWCCA 108Category: Sentence Parties: Regina (Crown)
Daniel Martinez
Alex BittnerRepresentation: Ms C McMullan (Crown) 23-24 January 2020
Mr K Kanagasabapathy (Crown) 18 May 2020
Mr D McCallum (Martinez)
Ms S Goodwin (Bittner)
File Number(s): 2019/75352019/7706
Judgment Alex Bittner
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The offender, Alex James Bittner, born in September 1960, is before the court for sentence for possess prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 2 years, and attempt to possess a commercial quantity of unlawfully imported drug contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth), which carries a maximum penalty of life imprisonment. There are no non-parole periods for these offences.
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The offender also has a charge to be dealt with on a section 16BA Schedule attaching to the Commonwealth offence, namely deal with money reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code 1995 (Cth), and he asks me to take that into account when imposing sentence.
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- AGLC
- R v Bittner; R v Martinez [2020] NSWDC 292
- Case
- [2020] NSWDC 292
- Decision Date
CaseChat Overview and Summary
The court considered various factors in determining the sentences, including the gravity of the offence, the role of each defendant, and the need for deterrence and rehabilitation. The court noted that Mr Bittner had no prior criminal history and had significant mental health issues and hardships, which were considered mitigating factors. However, the court emphasised the seriousness of the offence, involving a large quantity of cocaine, and imposed a term of imprisonment with a non-parole period. Mr Martinez, on the other hand, was sentenced for his role in aiding, abetting, counselling, or procuring the offence. The court considered his lesser involvement and imposed a shorter term of imprisonment, with conditions for his release.
The court ultimately sentenced Mr Bittner to a term of imprisonment of 6 years and 9 months, with a non-parole period of 4 years, and imposed a s10A conviction with no further penalty for the possession charge. Mr Martinez was sentenced to a term of imprisonment of 2 years and 6 months, to be released on 7 June 2020 upon entering into a recognizance and conditions for good behaviour. The court balanced the need for punishment and deterrence with the personal circumstances of the defendants in reaching its decisions.
Orders
Orders of the court
For the offence of attempt to possess a commercial quantity of unlawfully imported drug contrary, Mr Bittner is sentenced to a term of imprisonment of 6 years 9 months, with a non-parole period of 4 years. For the offence of possess prohibited drug, a s10A conviction with no further penalty is imposed. Orders for Bittner at [58].
For the offence of aid, abet, counsel or procure the commission of an offence, Mr Martinez is sentenced to a term of imprisonment of 2 years, 6 months. The offender is to be released on 7 June 2020 upon entering into a recognizance of the sum $500 without surety and a further condition of being of good behavior until 7 July 2021. Orders for Martinez at [112].
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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