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R v Bittner; R v Martinez

R v Bittner; R v Martinez

Case [2020] NSWDC 292 18 May 2020

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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 Act

Cases 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 108

Category: Sentence
Parties: Regina (Crown)
Daniel Martinez
Alex Bittner
Representation: 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

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.
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.

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 Bittner; R v Martinez

Details

AGLC: R v Bittner; R v Martinez [2020] NSWDC 292
Case: [2020] NSWDC 292
Decision Date: 18 May 2020

CaseChat Overview and Summary

In the case of R v Bittner; R v Martinez, the defendants were involved in the attempted possession of a significant quantity of cocaine illegally imported into Australia. The court had to determine the appropriate sentences for both defendants, considering the nature of their offences, their respective roles, and personal circumstances. The legal issues included the sentencing principles applicable to the attempted possession of a commercial quantity of a border controlled drug and the sentencing for aiding, abetting, counselling, or procuring the commission of an offence. The court was also required to consider the defendants' backgrounds, including their criminal history, mental health, and personal hardships.

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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Citations

AGLC Citation

R v Bittner; R v Martinez [2020] NSWDC 292

Most Recent Citation

R v Diez [2020] NSWDC 351

Cases citing this decision · 1 of 1 shown

R v Diez
[2020] NSWDC 351 Para 5

…R v Bittner; R v Martinez [2020] NSWDC 292.…

View all 1 citing cases →

Cases cited in this decision · 12 of 12 shown

R v Leroy
[2023] NSWDC 457 Para 32

…the case that the lack of a criminal record may have less significance for a drug trafficking offence than for some other fields of crime (R v Leroy (1984) 2 NSWLR 441), it is submitted by the offender that his very limited criminal record (at 59 years of age) would justify mitigation of his sentence. It is submitte…
Le v R
[2017] NSWCCA 26 Para 40

…monwealth sentences, but due to the similar statutory regimes it is nonetheless a useful starting point when imposing a Commonwealth sentence (Le v R [2017] NSWCCA 26 at [49]). When sentencing an offender for a primary offence, where a second offence is to be taken into account on a Form 1 (or 16BA schedule), the f…
R v MacLeod
[2013] NSWCCA 108 Para 36

…entence of imprisonment, shortening the term of sentence and/or reducing the non-parole period (Dipangkear v R [2010] NSWCCA 156 at [34]; R v MacLeod [2013] NSWCCA 108 at [49]). Each case will depend on the seriousness of the crime, whether there is a need for deterrence and the nature and degree of the impact of th…
R v Millwood
[2012] NSWCCA 2 Para 35

…inion, the offender’s disadvantage in the past goes to somewhat diminishing his moral culpability and I note the oft quoted passage in R v Millwood [2012] NSWCCA 2 by Simpson J which is well known, and which I will not repeat here. His disadvantage does not, however, exculpate him.…
Green v The Queen; Quinn v The Queen
[2011] HCA 49 Para 38

…The doctrine of parity is well known. It is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike.…
Muldrock v The Queen
[2011] HCA 39 Para 56

…As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]:…
Hili v The Queen
[2010] HCA 45 Para 50

…In Hill v the Queen; Jones v the Queen [2010] HCA 45, the High Court made clear that a sentencing judge should, in Commonwealth matters, determine the minimum term to be served in accordance with Part 1B of the Crimes Act , together with the application of principles identified in Power v The Queen (1974) 131 CL…
Dipangkear v R
[2010] NSWCCA 156 Para 36

…eatures of the case by suspending the sentence of imprisonment, shortening the term of sentence and/or reducing the non-parole period (Dipangkear v R [2010] NSWCCA 156 at [34]; R v MacLeod [2013] NSWCCA 108 at [49]). Each case will depend on the seriousness of the crime, whether there is a need for deterrence and th…
Markarian v The Queen
[2005] HCA 25 Para 49

…tained in section 16A(2) of that Act as are relevant and known to court. I have also been guided by the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51] and have had regard to the general principles identified by the High Court in Power v R [1974] HCA 26.…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 40

…fence. The guideline judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 is not directly applicable to Commonwealth sentences, but due to the similar statutory regimes it is nonetheless a useful starting point when imposin…
Pearce v The Queen
[1998] HCA 57 Para 43

…nces, then it must be done in a way so as to not result in an overall manifestly excessive head sentence (and thereby offend the totality principle) (Pearce v The Queen (1998) 194 CLR 610).…
Power v The Queen
[1974] HCA 26 Para 49

…ch of McHugh J in Markarian v The Queen [2005] HCA 25 at [51] and have had regard to the general principles identified by the High Court in Power v R [1974] HCA 26.…

Legislation cited in this decision · 2

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 40)
Crimes Act 1914 (Cth)
1 mention (from Para 48)

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 Act
Cases 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 108
Category:	Sentence
Parties:	Regina (Crown) Daniel Martinez Alex Bittner
Representation:	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