R v Bortnick

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI-2012-042-2886 [2013] NZHC 234

THE QUEEN

v

MICHAEL LEE BORTNICK

Hearing: 18 February 2013

Counsel: L McGuinniety for Crown
W Jones for Prisoner

Sentencing: 18 February 2013

SENTENCING NOTES OF MILLER J

[1] Mr Bortnick, you appear for sentence on two charges, one of importing the class A controlled drug, psilocine, which is known as magic mushrooms, and the other of importing cannabis. You were remanded to this Court for sentence, the District Court having declined jurisdiction.

[2] The facts are that on 18 May 2012 you imported by post a package containing

30g of cannabis and 14g of psilocine. You used a false name but your home address, evidently believing that if the package was intercepted it would be destroyed because the amounts were small. The package was indeed intercepted, but the authorities were not at all relaxed about it. The police came to visit. You readily admitted the offence and admitted importing cannabis two years earlier. The amount is very
small, and it is not suggested that you had it for supply.

R v BORTNICK HC NEL CRI-2012-042-2886 [18 February 2013]

[3] You are 65 and a US citizen by birth. About seven years ago you came to New Zealand to work as an English teacher. You are married. Your adult children still live in the US. References describe you as an excellent teacher, a man of good character, and an asset to the community.

[4] You were referred for assessment by the Addictions Service, but you were not found to suffer from any substance related disorder. You report being part of the Woodstock generation, which was characterised by a relaxed attitude to drug use. Cannabis became your substance of choice, and you have remained a regular user over many years. You were an occasional user of psilocine, a drug which seems to have been associated with the Grateful Dead, whose concerts you sometimes attended. You say that you had not used that drug for 10 years before this offence, and you were offered these drugs by an American friend as a birthday present. As I have just said to you this morning, it may well be that in your world drug use is acceptable, but that is an attitude that many people take in the community. The legislature has taken a different view and I really cannot give you any allowance for it.

[5] You have no previous convictions and you also pleaded guilty at the first reasonable opportunity.

[6] To import class A drugs is a serious matter, as you now appreciate. The Court must always consider whether imprisonment is needed. However, this is a very minor offence of its kind and it does not present the evil that the prohibition on importing drugs is aimed at, that is, it has not introduced drugs into the New Zealand community for subsequent distribution to others. The Crown has invited me to adopt a starting point of 15 to 18 months imprisonment for the two charges together before giving you credit for your guilty pleas and previous good character. And it is accepted that a community-based sentence is appropriate.

[7] You sought a discharge without conviction, citing loss of employment because your teaching certificate has been withdrawn and the risk that you will be denied entry to the US. After discussion with your counsel this morning that application has been abandoned.

[8] The sentencing methodology requires that I begin by deciding what term of imprisonment would be appropriate, before converting that to a different form of sentence. I will adopt a starting point of 12 months for the two offences together and from that I will deduct 35 per cent for your guilty pleas and good character, which would result in an end sentence of about eight months imprisonment.

[9] I do not consider that home detention is necessary in your case. As I have said, it is at the very lowest end of the scale and there are substantial mitigating facts. You are a person of otherwise good character and I do not doubt that you will never appear before the Court again. So your sentence will be 200 hours community work.

You may stand down.

Miller J

Solicitors:
Crown Solicitor’s Office, Nelson for Crown
Zindels, Nelson for Prisoner

The High Court of New Zealand in Nelson was presented with a case where Michael Lee Bortnick was to be sentenced for importing class A controlled drugs, specifically psilocine and cannabis. The District Court had declined jurisdiction over the case, thus transferring it to the High Court. Bortnick had imported a package containing 30g of cannabis and 14g of psilocine using a false name but his correct home address. The package was intercepted by authorities, leading to Bortnick's arrest and admission of guilt. The case involved two primary charges: importing psilocine and importing cannabis.

The legal issues before the court included determining the appropriate sentence for Bortnick's drug importation offenses. The court considered the nature and quantity of the drugs involved, Bortnick's clean criminal record, and his otherwise good character. It was noted that Bortnick's actions did not involve distribution for profit, and he had no prior convictions. The court also considered Bortnick's background as an English teacher and his reputation in the community. The court's reasoning involved assessing the seriousness of the offense and the mitigating factors present in Bortnick's case. The court determined that while drug importation was a serious matter, the small quantities and Bortnick's otherwise good character warranted a sentence that was less severe than imprisonment.

The High Court sentenced Bortnick to 200 hours of community work, reflecting the minor nature of the offense and the substantial mitigating factors. The court emphasized that while drug importation is illegal, the sentence needed to reflect the small scale of Bortnick's actions and his otherwise good character. Bortnick's sentence was a community-based alternative to imprisonment, aiming to address the offense while considering his background and the potential consequences of a criminal conviction.

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established