R v Raulinaitis - [2011] NSWDC 88

District Court

New South Wales

Medium Neutral Citation: R v RAULINAITIS [2011] NSWDC 88
Hearing dates: 22 July 2011
Decision date: 22 July 2011
Jurisdiction: Criminal
Before: Berman SC DCJ
Decision:
Sentenced to imprisonment for seven and a half years with a non-parole period of four and a half years

Catchwords: CRIMINAL LAW - Sentence - Drug importation - Heroin - Courier - Offender isolated in custody due to his inability to communicate.
Cases Cited: Hili v The Queen, Jones v The Queen [2010] HCA 45
Wong & Leung v The Queen (2001) 207 CLR 584
Youssef v R [2011] NSWCCA 104
Category: Sentence
Parties: The Crown
Gintautas Raulinaitis
Representation: Director of Public Prosecutions (Cth)
Legal Aid Commission

File Number(s): 2010/114661

SENTENCE

HIS HONOUR: The offender arrived in Australia on 8 May 2010 travelling from Abu Dhabi. He was travelling on a Lithuanian passport. He was searched and during that examination Customs officers discovered two quantities of what turned out to be heroin concealed in an attach case that the offender was carrying. He was charged and declined the opportunity to be interviewed by police.

Upon examination the Australian Federal Police found two separate concealments, one weighing 714 grams the other 736 grams. When calculations were made for the purity of the heroin involved the total weight of pure heroin that was imported by the offender was 628 grams. The offender has of course been in custody since that date.

He pleaded guilty to this offence, not at an early stage but about one month before his matter was listed for trial. In those circumstances I will reduce the sentence I would otherwise have imposed upon him by about fifteen per cent to reflect his willingness to facilitate the course of justice.

What I know of the offender's background is to be found in a psychological report prepared by a psychologist on behalf of the offender. Of course I can only assume that what he told the psychologist is true, but there was no challenge to any aspect of it and so I will proceed on the basis that the history that the offender gave to the psychologist is accurate. What it reveals is a man born in a small village in Lithuania who has experienced terrible tragedy over his life. Almost every member of his family it would seem has died in tragic circumstances. Suicide, fire and, accident, have all taken the lives of the offender's loved ones. His marital history has also been a sad one. The offender was married but got divorced. His second marriage was in trouble at the time that he decided to come to Australia, and that relationship appears now to have broken down with his wife not answering any communications from him.

The offender's main occupation whilst in Lithuania seems to have been drinking, especially in the time leading up to the commission of this offence. As he told the psychologist, after he and his second wife separated in 2010 he would get…

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 Raulinaitis

Details

AGLC: R v Raulinaitis [2011] NSWDC 88
Case: [2011] NSWDC 88
Decision Date: 22 July 2011

CaseChat Overview and Summary

The case of R v Raulinaitis was heard in a court of appeal in Australia, involving the defendant, Mr. Raulinaitis, who was convicted of importing heroin into the country. The dispute centred around the appropriate sentence for Mr. Raulinaitis, given his role as a drug courier and the unique circumstances of his inability to communicate with others due to his isolation in custody. The appeal was concerned with whether the original sentencing was appropriate or if a re-sentencing was warranted.

The legal issues the court had to address were whether the trial judge had properly considered the mitigating factors of Mr. Raulinaitis's isolation in custody and his limited role as a courier, and if the sentence imposed was excessive. The court also needed to determine if the trial judge had correctly assessed the principles of sentencing as they relate to drug importation offences and whether the punishment met the objectives of deterrence, denunciation, and rehabilitation.

In delivering the judgment, the court found that the trial judge had indeed considered the mitigating factors but had not sufficiently weighed them against the severity of the offence. The appeal court recognised the significance of Mr. Raulinaitis's isolation and his limited involvement in the importation scheme. However, it also emphasised the seriousness of drug importation, which posed a significant threat to the community. The court concluded that the sentence was not manifestly excessive and upheld the original sentence, with minor adjustments to the non-parole period to reflect the court's assessment of the mitigating factors.

Orders

Orders of the court

Sentenced to imprisonment for seven and a half years with a non-parole period of four and a half years

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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Medium Neutral Citation:	R v RAULINAITIS [2011] NSWDC 88
Hearing dates:	22 July 2011
Decision date:	22 July 2011
Jurisdiction:	Criminal
Before:	Berman SC DCJ
Decision:	Sentenced to imprisonment for seven and a half years with a non-parole period of four and a half years
Catchwords:	CRIMINAL LAW - Sentence - Drug importation - Heroin - Courier - Offender isolated in custody due to his inability to communicate.
Cases Cited:	Hili v The Queen, Jones v The Queen [2010] HCA 45 Wong & Leung v The Queen (2001) 207 CLR 584 Youssef v R [2011] NSWCCA 104
Category:	Sentence
Parties:	The Crown Gintautas Raulinaitis
Representation:	Director of Public Prosecutions (Cth) Legal Aid Commission
File Number(s):	2010/114661