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 1HIS 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. 2Upon 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. 3He 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. 4What 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. 5The 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 drunk, go to sleep, wake up and drink again. The psychologist expresses the view that the offender has not been coping with his grief well. 6He is now incarcerated in an institution where he is effectively in solitary confinement because of his inability to speak English and the lack of anyone who speaks Lithuanian. Although the offender does also have a reasonable grasp of both Russian and Polish it appears that his difficulties in finding other Lithuanian, Russian, or Polish speaking inmates has led to a feeling of intense isolation. Of course not too much can be made of this, after all it was the offender's decision to commit a crime in Australia where he would be isolated from people back in Lithuania. But I do have to take into account the circumstances in which the offender will serve his sentence of imprisonment, and he will do his time in custody much harder than would otherwise be the case because of the isolation caused by his difficulties in communication. 7Those difficulties also lead to another consequence which will make his time in custody harder. The offender is physically unwell and he has difficulty communicating problems and symptoms to medical staff. 8Quite how it is that the offender became involved in this offence is impossible to determine. The offender put no evidence before me to explain how that has come about and he refused to speak to police when he was arrested. So what led to him deciding to commit this most serious offence I simply do not know. 9Mr Townsend pointed out that the psychologist reported that the offender had told her that he was drinking enormous quantities at the time and was therefore vulnerable. But it is a pure guess to say that, even if he was vulnerable, this vulnerability had anything to do with the commission of this offence. 10Really, the most that can be said in the offender's favour is that he is a courier rather than a principal. Even that is not something that is a matter that is beyond doubt. True it is that the offender was acting as a courier when he was detected by police but it does not necessarily follow that he was not also performing another role higher up in the drug importation hierarchy. Nevertheless it seems to be accepted by the Crown that the offender was a mere courier and I will sentence him on that basis. 11This offence is of course a very serious matter. The community suffers enormously from the actions of drug addicts who feed their addiction often by the commission of criminal offences. The close relationship between property crimes and the availability of heroin has been identified in particular by the work of the Bureau of Crime Statistics and Research. And of course individual addicts suffer as well, many productive lives are ruined by heroin use and what would otherwise be a worthwhile citizen is reduced to a person who measures out his or her life in court dates. It is for this reason that general deterrence is of fundamental importance in drug importation offences. 12The offender has no prior convictions in Australia and only offences for dishonesty matters in Lithuania. Whilst he is entitled to me take into account that this is his first offence involving drugs it would have been better for the offender if I had been able to relate his character in some way to the circumstances which led to him committing this offence. As I have repeatedly said, I simply do not know what led to him turning up in Australia with an attach case containing a substantial quantity of an illegal and dangerous drug. 13Despite the recent decision of the Court of Criminal Appeal in Youssef v R [ 2011] NSWCCA 104 the Crown relied on the Court of Criminal Appeal decision in Wong and Leung v The Queen (2001) 207 CLR 584 and despite the High Court decision of Hili and Jones v The Queen [2010] HCA 45 Mr Townsend relied on sentencing statistics. The Crown also relied on what it said were three comparative cases indicating the length of sentences that have been imposed in this court for broadly similar offences, one of those being a sentence I imposed myself. I will take those sentences into account as well as of course the fact that this offence carries a maximum penalty of twenty-five years imprisonment, indicating that anyone convicted of an offence of this kind must expect to spend a lengthy period of time in custody. 14The offender is sentenced to imprisonment for seven and a half years. I set a non-parole period of four and a half years. The sentence is to date from 8 May 2010, which means that the offender will be released to parole on 7 November 2014. 15Mr Raulinaitis your sentence has started on 8 May 2010, that is the day you were arrested at Sydney airport. You will remain in custody until 7 November 2014. That is, you will be in custody for four and a half years. You will be released from custody on that day, 7 November 2014, and although you will probably be deported immediately your sentence will continue for another three years after that, even though you are not actually in custody.