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R v Di Bitonto

R v Di Bitonto

Case [2016] ACTSC 280 22 August 2016

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Di Bitonto
Citation:	[2016] ACTSC 280
Hearing Date(s):	17 August 2016
DecisionDate:	22 August 2016
Before:	Refshauge J
Decision:	1. Emma Maree Di Bitonto be convicted of trafficking in 3, 4- methylenedioxymethylamphetamine. 2. Emma Maree Di Bitonto be sentenced to 10 months imprisonment. 3. The sentence be suspended today for 12 months. 4. Emma Maree Di Bitonto be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months with the following conditions: (a) a probation condition that she be under the supervision of the Director-General or her delegate for a period of 12 months or such lesser period as the person supervising her considers appropriate and that she obey all reasonable directions of the person supervising her, including as to drug rehabilitation; and (b) that she continue counselling with Dr Meredith Whiting and Ms Sarah Gosper for the period they reasonably consider is appropriate.
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – drug trafficking – drug possession – consideration – no prior criminal record – guilty plea – suspended sentence – Good Behaviour Order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7, 33 Crimes (Sentence Administration) Act 2005 (ACT) Drugs of Dependence Act 1989 (ACT), ss 169(1), 187 Criminal Code 2002 (ACT), s 603(7) Criminal Code Regulation 2005 (ACT), Sch 1
Cases Cited:	Amos v The Queen (Unreported, Full Court of the Federal Court of Australia, Bowen CJ, Fox and Blackburn JJ, 6 February 1985) Bui v The Queen [2015] ACTCA 5 Coggan v The Queen [2013] ACTCA 49 Ibbs v The Queen (1987) 163 CLR 447 Kennewell v Rand [2005] ACTSC 89 Mattas v Hawke [2013] ACTSC 90 Pearce v The Queen (1998) 194 CLR 610 R v Campbell [2010] ACTCA 20 R v Carney [2013] ACTSC 266 R v Daquinta [2014] ACTSC 131 R v Dib [2003] NSWCCA 117 R v Dudeck [2015] ACTSC 80 R v Himbert (No 2) [2015] ACTSC 124 R v Honeyman [2016] ACTSC 2 R v Jury (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 8 February 2013) R v Lanham [2014] ACTSC 128 R v Liv (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 13 December 2012) R v M T [2014] ACTSC 162 R v NF (No 1) [2016] ACTSC 216 R v Nguyen (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 9 July 2013) R v Obi (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 18 October 2012) R v Robertson [2014] ACTSC 354 R v Tait (1979) 46 FLR 386 R v Tran [2014] ACTSC 368 R v Veljaca (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 19 October 2012) R v Verdins (2009) 16 VR 269 R v Wilkins [2015] ACTSC 145 Singh v The Queen [2015] ACTCA 65
Texts Cited:	F Rinaldi, Drugs…

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 Di Bitonto

Details

AGLC: R v Di Bitonto [2016] ACTSC 280
Case: [2016] ACTSC 280
Decision Date: 22 August 2016

CaseChat Overview and Summary

Emma Maree Di Bitonto was convicted of trafficking in a quantity of 3, 4- methylenedioxymethylamphetamine and the matter came before the Supreme Court of the Australian Capital Territory for sentencing. The legal issues before the court were the appropriate sentence for the offence and the conditions that should be attached to any suspended sentence. The court considered the offence to be serious but recognised that Ms Di Bitonto had no prior criminal record, and had pleaded guilty at the earliest opportunity. The court also considered that there were substantial and compelling circumstances that justified the imposition of a non-parole period that was less than half of the maximum penalty. The court held that a suspended sentence was appropriate and ordered that the sentence be suspended for 12 months. The court also ordered that Ms Di Bitonto be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months. The conditions of the order included that Ms Di Bitonto be under the supervision of the Director-General or her delegate for a period of 12 months and obey all reasonable directions of the person supervising her, including as to drug rehabilitation, and continue counselling with Dr Meredith Whiting and Ms Sarah Gosper for the period they reasonably consider is appropriate.

Orders

Orders of the court

1. Emma Maree Di Bitonto be convicted of trafficking in 3, 4- methylenedioxymethylamphetamine.

2. Emma Maree Di Bitonto be sentenced to 10 months imprisonment.

3. The sentence be suspended today for 12 months.

4. Emma Maree Di Bitonto be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months with the following conditions:

(a) a probation condition that she be under the supervision of the Director-General or her delegate for a period of 12 months or such lesser period as the person supervising her considers appropriate and that she obey all reasonable directions of the person supervising her, including as to drug rehabilitation; and

(b) that she continue counselling with Dr Meredith Whiting and Ms Sarah Gosper for the period they reasonably consider is appropriate.

Background

Background to the litigation

Full text does not contain this section.

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 Di Bitonto [2016] ACTSC 280

Most Recent Citation

Beniamini v Craig [2017] ACTSC 30

Cases citing this decision · 15 of 15 shown

Director of Public Prosecutions v Padreny
[2023] ACTSC 286

…Bonfield [2021] ACTSC 362 R v Burge [2022] ACTSC 376 R v CV [2013] ACTCA 22; 233 A Crim R 67 R v De Simoni [1981] HCA 31; 147 CLR 383 R v Di Bitonto [2016] ACTSC 280 R v Donovan [1934] 2 KB 498; 25 Cr App R 1 R v Forrest (No 2) [2017] ACTSC 83 R v Fry [2021] ACTSC 138 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179…
R v Celeski (No 2)
[2022] ACTSC 393

…C 310 R v Celeski [2022] ACTSC 229 R v Crawford (No 1) [2020] ACTSC 245 R v Daquinta [2014] ACTSC 131 R v De Simoni (1981) 147 CLR 383 R v Di Bitonto [2016] ACTSC 280 R v EL [2016] ACTSC 241 R v Featherstone [2019] ACTSC 218 R v French [2020] ACTSC 133 R v Green [2021] ACTSC 356 R v Hamouche [2020] ACTSC 194 R v He…
R v Pearce (No 2)
[2022] ACTSC 71 Para 1

…Both parties agreed that the offences before the Court are serious, and ordinarily carry a period of imprisonment: R v Di Bitonto [2016] ACTSC 280 at [88]. It was not disputed here that a sentence of imprisonment is the only appropriate sentence with respect to the offences and I agree with the parties’ position. T…
R v Green
[2021] ACTSC 356 Para 3

…fact that Ms Green has successfully achieved a degree of rehabilitation is also a matter that can moderate the severity of a sentence: R v Di Bitonto [2016] ACTSC 280. It is, of course, important that, for this aspect of the matter, the rehabilitation be successful: Mazeika v David [2014] ACTSC 95 at [13]. Indeed,…
R v O'Neil
[2021] ACTSC 345 Para 1

…s have categorised distributors into groups, some three groups of professional, medium, and end-of-the-line dealers: see, for example, R v Di Bitonto [2016] ACTSC 280 at [24]-[25]. As noted (at [25]), Mr O'Neil had a quite pure form of the drug, but had a relatively small quantity, though he did seem to have a reas…
R v Massey (No 3)
[2021] ACTSC 156

…R v Di Bitonto [2016] ACTSC 280 R v Eichmann [2019] ACTSC 212 R v Hawkins [2015] ACTSC 333…
R v Coleman
[2021] ACTSC 349

…243 CLR 506 Markarian v The Queen [2005] HCA 25; 228 CLR 357 R v Crawford (No 1) [2020] ACTSC 245 R v Crawford (No 3) [2020] ACTSC 369 R v Di Bitonto [2016] ACTSC 280 R v Forrest (No 2) [2017] ACTSC 83 R v Hancock [2021] ACTSC 52 R v Henry [1999] NSWCCA 111: 46 NSWLR 346 R v John [2017] ACTSC 144 R v Mathews [2020]…
R v Antonovic (No 3)
[2021] ACTSC 338

…9 R v Antonovic [2016] ACTSC 77 R v BB [2015] ACTSC 304 R v Bennett; R v Simonds [2020] ACTSC 221 R v Crawford (No 1) [2020] ACTSC 245 R v Di Bitonto [2016] ACTSC 280 R v Elfick [2021] ACTSC 9 R v Forest (No 2) [2017] ACTSC 83 R v Foster [2021] ACTSC 229 R v Hancock [2021] ACTSC 51 R v JM [2014] ACTSC 380 R v John…
R v Slattery
[2021] ACTSC 154 Para 1

…a course of conduct, that is a little more complicated. Thus, there are two aspects of sentencing for a course of conduct, as noted in R v Di Bitonto [2016] ACTSC 280 at [93]-[94]. Although some, especially including many of the additional offences, might be said to be aspects of the same course of conduct and so a…
R v Pearson
[2020] ACTSC 375 Para 1

…Nevertheless, it is properly described as a course of conduct which, as pointed out in R v Di Bitonto [2016] ACTSC 280 at [93]-[94], can make the offences more serious. It was a course of conduct that was persisted in, despite many demands by the victims that he leave the premises. Where there are no overlapping fa…
R v Gatica
[2020] ACTSC 22

…ACTCA 46; 245 A Crim R 80 R v Ang [2014] ACTCA 17 R v Brown [2019] ACTSC 59 R v Campbell [2010] ACTCA 20 R v Campbell [2017] ACTSC 74 R v Di Bitonto [2016] ACTSC 280 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hill [2016] ACTSC 310 R v Martin [2007] VSCA 291; 20 VR 14 R v Meyboom [2012] ACTCA 48 R v Osenkowski (…
R v McConnell-Imbriotis
[2019] ACTSC 267

…v Ang [2014] ACTCA 17 R v BG [2017] ACTSC 382 R v Brown [2019] ACTSC 59 R v Davidson [2018] ACTSC 227 R v Day (1998) 100 A Crim R 275 R v Di Bitonto [2016] ACTSC 280 R v Gotte [2018] ACTSC 219 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hyde [2017] ACTSC 337 R v Johnson [2019] ACTSC 117 R v Johnston [2017] ACTSC…
R v Whitelock
[2019] ACTSC 396 Para 1

…I was referred to the cases of R v Di Bitonto [2016] ACTSC 280 and R v Morales [2019] ACTSC 88 by the offender’s counsel. While it was submitted each resulted in a suspended sentence, in the latter, an intensive corrections order (ICO) was ordered. Counsel for the offender noted that they were not directly comparab…
R v King
[2017] ACTSC 119 Para 1

…e of sale as opposed to personal use in any more precise way. He submitted by analogy with the categories of heroin user identified in R v Di Bitonto [2016] ACTSC 280 at [24]-[26] that his client was in the user/dealer category of offender.…
Beniamini v Craig
[2017] ACTSC 30 Para 1

…The notion of a course of conduct is, itself, multi-faceted. As I said in R v Di Bitonto [2016] ACTSC 280 at [93]-[94]:…

View all 15 citing cases →

Cases cited in this decision · 21 of 21 shown

R v NF (No 1)
[2016] ACTSC 216 Para 1

…As I pointed out in R v NF (No 1) [2016] ACTSC 216 at [38]-[39]:…
R v Honeyman
[2016] ACTSC 2 Para 1

…he other hand, that an offence is part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis i…
Singh v The Queen
[2015] ACTCA 65 Para 1

…he one course of conduct, ordinarily this requires a high degree of concurrency between the sentences imposed for each offence. See Singh v The Queen [2015] ACTCA 65 at [141]-[142], Kennewell v Rand [2005] ACTSC 89 at [67], Amos v The Queen (Unreported, Full Court of the Federal Court of Australia, Bowen CJ, Fox a…
R v Wilkins
[2015] ACTSC 145 Para 1

…Mr Berents, defence counsel for Ms Di Bitonto, referred me to my decision in R v Wilkins [2015] ACTSC 145 where Mr Wilkins was found in possession of 6.348 grams of methylamphetamine and charged with trafficking in it and, while on bail for that offence, arrested for a further charge of possession of 0.174 grams of…
R v Himbert (No 2)
[2015] ACTSC 124 Para 1

…In the R v Himbert (No 2) [2015] ACTSC 124, Mr Himbert was found guilty after a trial of trafficking in methylamphetamine when he was searched by police who found 2.185 grams of the drug sewn into his underpants. Mr Himbert showed little remorse. He had a limited criminal history, mainly for driving offences but al…
R v Dudeck
[2015] ACTSC 80 Para 1

…I was also referred to two other decisions, R v Dudeck [2015] ACTSC 80 and R v Robertson [2014] ACTSC 354. They were sentencing remarks for offenders convicted of trafficking in cannabis. They had such limited value as a result that I do not need to address them in any detail.…
Bui v The Queen
[2015] ACTCA 5 Para 1

…The Court of Appeal in Bui v The Queen [2015] ACTCA 5 at [41], set out some principles identified in the authorities concerning the sentencing of drug traffickers that need to be considered by sentencers. They were:…
R v Tran
[2014] ACTSC 368 Para 1

…In the matter of R v Tran [2014] ACTSC 368, Ms Tran was found in possession of 9.505 grams of methylamphetamine divided into small clip seal bags. She entered a plea of guilty at an early stage but the facts revealed an on-going process of supplying methylamphetamine to an associate, who then, to her knowledge, on…
R v Robertson
[2014] ACTSC 354 Para 1

…I was also referred to two other decisions, R v Dudeck [2015] ACTSC 80 and R v Robertson [2014] ACTSC 354. They were sentencing remarks for offenders convicted of trafficking in cannabis. They had such limited value as a result that I do not need to address them in any detail.…
R v MT
[2014] ACTSC 162 Para 1

…s part of a course of conduct makes it more serious than were it a single transaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrenc…
R v Lanham
[2014] ACTSC 128 Para 1

…ansaction. See, for example, R v Honeyman [2016] ACTSC 2 at [34], R v M T [2014] ACTSC 162 at [80]. This makes the offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrence. See Mattas v Hawke [2013] ACTSC 90 at [19], R v Campbell at [47].…
R v Daquinta
[2014] ACTSC 131 Para 1

…In R v Daquinta [2014] ACTSC 131, Mr Daquinta trafficked in methylamphetamine between 5 March and 20 May 2013. He had been under surveillance by police and he was supplying “speed” on the date of his arrest to a man who paid either $100 or $200.…
R v Carney
[2013] ACTSC 266 Para 1

…upplying MDMA on any other days to any other person, nor any evidence from which I could draw that conclusion beyond reasonable doubt. See R v Carney [2013] ACTSC 266 at [149].…
Coggan v The Queen
[2013] ACTCA 49 Para 1

…nt. See R v Dib [2003] NSWCCA 117 at [3]. There is, as also acknowledged, some utilitarian value which the Court of Appeal held in Coggan v The Queen [2013] ACTCA 49 at [14]-[21], is able to be taken into account.…
Mattas v Hawke
[2013] ACTSC 90 Para 1

…he offending more serious: R v Lanham [2014] ACTSC 128 at [71]. It may require more emphasis in sentencing on specific deterrence. See Mattas v Hawke [2013] ACTSC 90 at [19], R v Campbell at [47].…
Kennewell v Rand
[2005] ACTSC 89 Para 1

…s a high degree of concurrency between the sentences imposed for each offence. See Singh v The Queen [2015] ACTCA 65 at [141]-[142], Kennewell v Rand [2005] ACTSC 89 at [67], Amos v The Queen (Unreported, Full Court of the Federal Court of Australia, Bowen CJ, Fox and Blackburn JJ, 6 February 1985) at 8.…
R v Verdins
[2007] VSCA 102 Para 1

…has recognised psychiatric conditions that would make the experience of full-time imprisonment more difficult for her. That, as found in R v Verdins (2009) 16 VR 269 at 276 [32], is a matter to be taken into account.…
R v Dib
[2003] NSWCCA 117 Para 1

…nt her plea of guilty. Though not made at an early stage, it was the result of some negotiation which can justify a significant discount. See R v Dib [2003] NSWCCA 117 at [3]. There is, as also acknowledged, some utilitarian value which the Court of Appeal held in Coggan v The Queen [2013] ACTCA 49 at [14]-[21], is…
Pearce v The Queen
[1998] HCA 57 Para 1

…drugs, two sentencing principles are important: an offender can only be sentenced for the offence which he or she has committed ( Pearce v The Queen (1998) 194 CLR 610 at 615; [12]) and many offences can be committed in a wide variety of ways with different levels of seriousness and it is important that the heinousn…
Ibbs v the Queen
[1987] HCA 46 Para 1

…that the heinousness of conduct in a particular case depends not on the statute defining the offence but on the facts of the case ( Ibbs v The Queen (1987) 163 CLR 447 at 452).…
R v Tait
[1979] FCA 32 Para 1

…garded as a serious offence. That is confirmed by the maximum penalty set by the legislature which shows the relative seriousness of the offence. See R v Tait (1979) 46 FLR 386 at 396-8.…

Legislation cited in this decision · 3

Crimes (Sentencing) Act 2005 (ACT)
33, 7 3 mentions (from Para 1)
Drugs of Dependence Act 1989 (ACT)
169(1), 187 3 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
1 mention