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R v Markwart

R v Markwart

Case [2019] NSWDC 937 27 August 2020

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Markwart [2019] NSWDC 937
Hearing dates: 15 March 2019
Date of orders: 29 March 2019
Decision date: 27 August 2020
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Sentenced to 7 years 8 months imprisonment; non-parole period 4 years 3 months.

Catchwords:
Crime – sentence – import border controlled drug – cocaine – marketable value – consignments from France addressed to offender containing bottles of wine – initial denial of guilt – evidence of prior importations – course of conduct - prior conviction – long history of drug use – modest remuneration – comparative sentencing – pre-sentence custody – discount for plea of guilty - contrition

Legislation Cited:
Crimes Act1914(Cth)
CriminalCode (Cth).
Drug Misuse and Trafficking Act

Cases Cited:
Atanackovic v R [2015] VSCA 136
Attorney General’s Application (Number 1) (2002) 56 NSWLR 147
DPP (Cth) v De La Rosa [2010] NSWCCA 194
DPP(Cth) vGow [2015] NSWCCA 208
Hili and JonesvR [2010] HCA 45
IyohavR [2011] WASCA 46
MarkarianvR (2005) 228 CLR 357
RvAlaby [2014] VSCA 25
RvHolland [2011] NSWCCA 65
R v Olbrich [199] HCA 54; 199 CLR 270
R v UE [2016] QCA 58
Siddiqi v R [2015] NSWCCA 16
Wong v R (2001) 2017 CLR 584
Xiao v R [2018] NSWCCA 4

Category: Sentence
Parties: Regina (Crown)
Jayson Markwart (Offender)
Representation:
Counsel:
Mr Gleeson (DPP)
Solicitors:
Mr Digges (Offender)

File Number(s): 2017/00119361
Publication restriction: No

Judgment

Mr Markwart I have to give my reasons for the order that I am going to make but I believe in telling someone in advance what sentence is to be imposed because at the end of the day you are more interested in the sentence to be imposed than the operation of s 16A of the Commonwealth Crimes Act. I propose to impose upon you a sentence of seven years, eight months imprisonment. That will date from 29 March 2018. I am required to give you a year’s credit for the time you have spent in custody including the last fortnight, and I propose in your case to fix a non‑parole period of four years three months commencing from that date and on my calculation that non‑parole period will expire on 28 June 2022. You will be eligible for release to parole subject to your appeal rights and the Crown’s appeal rights. Whether you are released to parole will be a matter for you and the Parole Authority subject to any other intervening circumstances. That is the order I propose to make but I have to give my reasons.
Jayson Markwart appears today for sentence in respect of an offence to which he pleaded guilty on indictment on 22 October 2018. The offence he admitted to was, that he, between 6 March 2017 and about 20 April 2017 in Sydney in New South Wales, did import a substance, that substance being a border…

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 Markwart

Details

AGLC: R v Markwart [2019] NSWDC 937
Case: [2019] NSWDC 937
Decision Date: 27 August 2020

CaseChat Overview and Summary

The case of R v Markwart involved a defendant charged with various drug-related offences, specifically the importation of a controlled border drug, cocaine, from France. The court had to determine the appropriate sentence for the defendant, who had a history of drug use, prior convictions, and had attempted to import large quantities of cocaine through multiple consignments. The matter was heard in a higher court where the sentence was being reviewed.

The central legal issues before the court were the determination of the appropriate sentence for the defendant, considering the significant quantity of cocaine involved, the defendant's prior criminal history, and the principle of comparative sentencing. The court had to weigh the defendant's prior convictions, the seriousness of the current offence, and the potential deterrent effect of the sentence. Additionally, the court had to consider the defendant's remorse, the discount for a plea of guilty, and the time already spent in pre-sentence custody.

The court concluded that the defendant's actions demonstrated a clear course of conduct in attempting to import large quantities of cocaine. Despite the defendant's denial of guilt, the evidence of prior importations, combined with the defendant's long history of drug use, pointed to a serious and persistent criminal behaviour. The court recognised the defendant's remorse and the discount for the plea of guilty, but balanced these against the need for a significant deterrent sentence. Ultimately, the court sentenced the defendant to seven years and eight months imprisonment, with a non-parole period of four years and three months. This sentence reflected the gravity of the offence, the defendant's criminal history, and the need to deter similar conduct in the future.

Orders

Orders of the court

Sentenced to 7 years 8 months imprisonment; non-parole period 4 years 3 months.

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

R v Markwart [2019] NSWDC 937

Cases Citing This Decision

No citing cases yet.

Cases Cited

Xiao v R [2018] NSWCCA 4
Citation 1 (Para 34)

…stive, but every case that I have considered that has been decided in the Court of Criminal Appeal, particularly since the decision of Xiao v R [2018] NSWCCA 4, where the Court of Criminal Appeal had to re‑sentence an offender in respect of Commonwealth offending, the Court of Criminal Appeal has ascribed to the o…
R v UE [2016] QCA 58
Citation 2 (Para 12)

…The Crown referred me to four cases; UE [2016] QCA 58, DPP(Cth) v Gow [2015] NSWCCA 208, R v Alaby [2014] VSCA 25 and the decision of Iyoha v R [2011] WASCA 46, a decision obviously from Western Australia. It is proper that the Crown should bring the Courts’ attention to decisions from other jurisdictions to try…
Director of Public Prosecutions (Cth) v Gow [2015] NSWCCA 208
Citation 3 (Para 12)

…The Crown referred me to four cases; UE [2016] QCA 58, DPP(Cth) v Gow [2015] NSWCCA 208, R v Alaby [2014] VSCA 25 and the decision of Iyoha v R [2011] WASCA 46, a decision obviously from Western Australia. It is proper that the Crown should bring the Courts’ attention to decisions from other jurisdictions to try and…
Siddiqi v The Queen (Commonwealth) [2015] NSWCCA 169
Citation 4 (Para 59)

…of decisions from the public defender’s tables. I could not find any particular decision that was comparable other than the decision of Siddiqi [2015] NSWCCA 169 and the decision of Atanackovic [2015] VSCA 136. It was to be pointed out, having read the decision of Siddiqi, that he was 19 years of age. He received a…
Atanackovic v The Queen [2015] VSCA 136
Citation 5 (Para 59)

…could not find any particular decision that was comparable other than the decision of Siddiqi [2015] NSWCCA 169 and the decision of Atanackovic [2015] VSCA 136. It was to be pointed out, having read the decision of Siddiqi, that he was 19 years of age. He received a sentence of seven years, six months imprisonment…
Eriyo v R [2015] NSWCCA 16
Citation 6

…Alaby [2014] VSCA 25 R v Holland [2011] NSWCCA 65 R v Olbrich [199] HCA 54; 199 CLR 270 R v UE [2016] QCA 58 Siddiqi v R [2015] NSWCCA 16 Wong v R (2001) 2017 CLR 584 Xiao v R [2018] NSWCCA 4 Category: Sentence Parties: Regina (Crown) Jayson Markwart (Offender) Representation: Counsel: Mr Gleeson (DPP) Solicitors:…
Alavy v R [2014] VSCA 25
Citation 7 (Para 12)

…The Crown referred me to four cases; UE [2016] QCA 58, DPP(Cth) v Gow [2015] NSWCCA 208, R v Alaby [2014] VSCA 25 and the decision of Iyoha v R [2011] WASCA 46, a decision obviously from Western Australia. It is proper that the Crown should bring the Courts’ attention to decisions from other jurisdictions to try…
R v Holland [2011] NSWCCA 65
Citation 8 (Para 13)

…arned Crown Prosecutor in the course of submissions. As my research has revealed, McClellan CJ at CL, himself said in the decision of R v Holland [2011] NSWCCA 65, at [3], that it was wrong to seek out his categorisations in De La Rosa and then to impose a sentence appropriate to a particular category. Rather, he s…
Iyoha v The Queen [2011] WASCA 46
Citation 9 (Para 12)

…The Crown referred me to four cases; UE [2016] QCA 58, DPP(Cth) v Gow [2015] NSWCCA 208, R v Alaby [2014] VSCA 25 and the decision of Iyoha v R [2011] WASCA 46, a decision obviously from Western Australia. It is proper that the Crown should bring the Courts’ attention to decisions from other jurisdictions to try a…
Hili v The Queen [2010] HCA 45
Citation 10 (Para 54)

…n De La Rosa, or perhaps the use of it subsequently in the decision from the High Court of the same year as De La Rosa , that is Hili and Jones v R [2010] HCA 45, particularly at [54].…
DPP (Cth) v De La Rosa [2010] NSWCCA 194
Citation 11 (Para 22)

…in the report that raises any matter that I should consider was to be derived from the Court of Criminal Appeal decision of DPP (CTH) v De La Rosa [2010] NSWCCA 194 at [177]-[178] in the judgment of McClellan CJ at CL, when he discussed the relevance of mental disability or mental illness in the sentencing of offen…
Wong v R [2010] NZSC 14
Citation 12 (Para 32)

…. It is not a defining matter but it is a relevant consideration notwithstanding of course the striking down of the guideline judgment in Wong(v R) (2001) 2017 CLR 584. Clearly, as the Crown points out, it is common sense that the prisoner was to obtain some financial benefit from the drugs that were imported. I am re…
Markarian v The Queen [2005] HCA 25
Citation 13 (Para 32)

…sis for comparison between this matter and a “worst case” as it is described in the Crown’s written submissions by reference to Markarian v R (2005) 228 CLR 357. Of course when one refers to “the worst case” one also needs to consider by reference to the maximum penalty, that the maximum penalty will be imposed upon…
Re Attorney-General's Application (No 1 of 2002) (NSW) [2002] NSWCCA 518
Citation 14 (Para 5)

…t is consistent with principles that have been laid down by the Court of Criminal Appeal in decisions such as Attorney General’s Application (No 1) (2002) 56 NSWLR 147. I appreciate the Commonwealth is not bound by guideline judgments fixed by the New South Wales Court of Criminal Appeal pursuant to New South Wales le…
R v Olbrich [1999] HCA 54
Citation 15 (Para 28)

…The Crown submits in the context of having to describe what the prisoner did, consistent with what the High Court said in R v Olbrich [199] HCA 54; 199 CLR 270, the prisoner was more than a “courier” and it submits that he was “more likely an intermediary” which I agree, but within “organised international syn…

Legislation Cited

Crimes Act 1914 (Cth)
1 mention (from Para 24)

Medium Neutral Citation:	R v Markwart [2019] NSWDC 937
Hearing dates:	15 March 2019
Date of orders:	29 March 2019
Decision date:	27 August 2020
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Sentenced to 7 years 8 months imprisonment; non-parole period 4 years 3 months.
Catchwords:	Crime – sentence – import border controlled drug – cocaine – marketable value – consignments from France addressed to offender containing bottles of wine – initial denial of guilt – evidence of prior importations – course of conduct - prior conviction – long history of drug use – modest remuneration – comparative sentencing – pre-sentence custody – discount for plea of guilty - contrition
Legislation Cited:	Crimes Act1914(Cth) CriminalCode (Cth). Drug Misuse and Trafficking Act
Cases Cited:	Atanackovic v R [2015] VSCA 136 Attorney General’s Application (Number 1) (2002) 56 NSWLR 147 DPP (Cth) v De La Rosa [2010] NSWCCA 194 DPP(Cth) vGow [2015] NSWCCA 208 Hili and JonesvR [2010] HCA 45 IyohavR [2011] WASCA 46 MarkarianvR (2005) 228 CLR 357 RvAlaby [2014] VSCA 25 RvHolland [2011] NSWCCA 65 R v Olbrich [199] HCA 54; 199 CLR 270 R v UE [2016] QCA 58 Siddiqi v R [2015] NSWCCA 16 Wong v R (2001) 2017 CLR 584 Xiao v R [2018] NSWCCA 4
Category:	Sentence
Parties:	Regina (Crown) Jayson Markwart (Offender)
Representation:	Counsel: Mr Gleeson (DPP) Solicitors: Mr Digges (Offender)
File Number(s):	2017/00119361
Publication restriction:	No