Martellotta v R

[2021] NSWCCA 168

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Martellotta v R [2021] NSWCCA 168

Hearing dates:

12 July 2021

Decision date:

21 July 2021

Before:

Basten JA at [1]; Walton J at [9]; Adamson J at [10]

Decision:

(1)   Grant leave to appeal against the sentence imposed by Judge Townsden in the District Court on 28 February 2020.

(2)   Dismiss the appeal.

Catchwords:

CRIME — Appeals — Appeal against sentence — Co-offenders sentenced for the same offences — Sentencing judge took into account a further offence committed by the co-offender — Applicant alleges disparity between sentences — Whether the applicant was entitled to have a justifiable sense of grievance – whether the co-offender’s strong subjective case, this outweighed the co-offender’s greater involvement and further offence — Co-offenders sentenced by different judges — Whether the sentences can be explained by the different material before each sentencing judge — Co-offender gave evidence at his own sentencing and the applicant did not give evidence at his own sentencing — Agreed facts were substantially the same — Difference in material explains why the co-offender was found to have a considerably greater role than the applicant — Differential assessment of objective seriousness — No standardised language with regard to range — The effect of subjective circumstances reduced the co-offender’s moral culpability — The judge who sentenced the co-offender expressly took into account the additional offence — No disparity between the sentences such as would entitle the applicant to a justifiable sense of grievance

Legislation Cited:

Crimes Act 1914 (Cth), s 16BA

Criminal Code Act 1995 (Cth), ss 11.1, 307.5, 400.9

Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10A, 32

Drug Misuse and Trafficking Act 1985 (NSW), s 10

Cases Cited:

Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518

Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37

Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61

Postiglione v The Queen (1997) 189 CLR 295

R v Fernando (1992) 76 A Crim R 58

R v Millwood [2012] NSWCCA 2

Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266

Category:

Principal judgment

Parties:

Daniel Martellotta (Applicant)
Regina (Respondent)

Representation:

Counsel:
L Fernandez (Applicant)
B Anniwell (Respondent)

Solicitors:
Gregory J Goold Solicitors (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2019/7542

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

28 February 2020

Before:

Townsden DCJ

File Number(s):

2019/7542

Judgment

1. BASTEN JA: The applicant, Daniel Martellotta, was convicted of attempting to possess a commercial quantity of cocaine. He sought leave to appeal his sentence on the basis that he had a justifiable sense of grievance regarding the sentence he was given in comparison with that of a co-offender, Alex Bittner. In this context, the term “justifiable” indicated that the applicant’s personal views were immaterial; the test is entirely objective. ^[1] Further, the phraseology is obscure as to what may constitute justification. The phrase is used to identify breach of the principle of parity, by which “persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence”. ^[2] But, as Gibbs CJ continued in Lowe, “other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account.”

   1. Lowe v The Queen (1984) 154 CLR 606 at 613 (Mason J); [1984] HCA 46. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] (French CJ, Crennan and Kiefel JJ), citing Postiglione v The Queen (1997) 189 CLR 295 at 323 (Gummow J), 338 (Kirby J); [1997] HCA 26.

   2. Lowe at 609 (Gibbs CJ).

2. As noted by Adamson J below, where possible, co-offenders should be sentenced by the same judge, and preferably at or near the same time. That did not happen in the present case, the applicant being sentenced on 28 February 2020 by Townsden DCJ and the co-offender Bittner being sentenced on 18 May 2020 by Weinstein DCJ.

3. Nor did this case involve, strictly speaking, an application of the parity principle; rather, the applicant’s case was that he had a different role in the offending from that of his co-offender and therefore should have received a lesser sentence. In fact he did; his complaint was that the disparity was insufficient.

4. No argument based on disparity was available at the time he was sentenced. However, Townsden DCJ accepted that he played a lesser role to that played by Mr Bittner. Judge Weinstein agreed, although he used different language to express that conclusion.

5. Four things are remarkable about this case. The first is that no one knows what sentence Townsden DCJ would have given, had he been sentencing Mr Bittner at the same time that he sentenced the applicant. Secondly, in sentencing Mr Bittner, Weinstein DCJ was not only conscious of the sentence imposed on Mr Martellotta, but quoted the assessment of the objective seriousness of Mr Bittner’s role as stated by Townsden DCJ. It may be that Weinstein DCJ considered their roles differed to a lesser degree than did Townsden DCJ. If that were so, which cannot be known, the variation was justified because Mr Bittner gave evidence at his own sentencing which to an extent qualified the objective appearance of the agreed facts, which were common to both.

6. Thirdly, there can be no doubt that Weinstein DCJ was favourably impressed by the subjective personal circumstances of Mr Bittner, which were not known to Townsden DCJ and were not directly comparable to the findings of Townsden DCJ with respect to the applicant. Finally, we do not know what sentence Weinstein DCJ would have imposed on the applicant, had he been sentencing him at the time that he sentenced Mr Bittner. However, he knew precisely what sentence had been imposed, and understood the need to impose a proportionate sentence on Mr Bittner.

7. This combination of factors, the circumstances of which are more fully particularised by Adamson J, render it impossible to say that the sentencing by Townsden DCJ was affected by any relevant error, even an error which might only be perceived after Mr Bittner was sentenced.

8. I agree with the reasons of Adamson J and agree that whilst there should be a grant of leave to appeal, the appeal against sentence must be dismissed.

9. WALTON J: I agree with the reasons for judgment of Basten JA and Adamson J and the orders proposed by Adamson J.

10. ADAMSON J: On 28 February 2020, Daniel Martellotta (the applicant) was convicted, following his plea of guilty, of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 4.34kg of pure cocaine, contrary to ss 307.5(1) and 11.1(1) of the Criminal Code Act 1995 (Cth) (the Code). On that day, Townsden DCJ sentenced him to a term of imprisonment of 6 years with a non-parole period of 4 years.

11. The applicant, for whom Mr Fernandez appeared, seeks leave to appeal on the sole ground as follows:

“The applicant has a justifiable sense of grievance regarding the sentence he was given in comparison to his co-offender, Alex Bittner, particularly having regard to:

(a) The nature and circumstances of their respective offending;

(b) Their roles;

(c) Their subjective cases.”

12. Mr Bittner, the co-offender, was sentenced on 18 May 2020 by Weinstein SC DCJ, who imposed a sentence of 6 years and 9 months’ imprisonment with a non-parole period of 4 years. Mr Bittner was sentenced for the same offence although, in his case, the sentencing judge, pursuant to s 16BA of the Crimes Act 1914 (Cth), took into account a further offence contrary to s 400.9(1) of the Code (dealing with money reasonably suspected of being proceeds of indictable crime in excess of $100,000). Mr Bittner was also sentenced for an offence of possession of prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), in respect of which he was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW): that is, no further penalty was imposed.

13. In substance, Mr Fernandez argued that the applicant was entitled to have a justifiable sense of grievance because Mr Bittner’s role in the common offence was found to be greater than the applicant’s; Mr Bittner had an additional offence to be taken into account under s 16BA; and that, while Mr Bittner’s subjective case was stronger than the applicant’s, this was not sufficient to outweigh the effect of Mr Bittner’s greater involvement and the further offence. He submitted that, in effect (disregarding the total term but having regard to the non-parole period), they had received identical sentences.

14. Mr Fernandez initially put that each of these matters constituted errors by Weinstein SC DCJ when sentencing Mr Bittner. He acknowledged that, as there was no appeal from his Honour’s judgment, the finding of error could not lead to any alteration in the sentence imposed on Mr Bittner. I understood him ultimately to submit that the alleged errors in Judge Weinstein’s judgment served to explain why the sentences were so similar when, in his submission, the applicant’s sentence ought to have been substantially less than that imposed on Mr Bittner. In developing this argument, Mr Fernandez relied heavily on the differences between the wording in Townsden DCJ’s judgment as to the respective involvement of the applicant and the co-accused, when compared with that used by Weinstein SC DCJ.

Consideration

15. The parity principle, which is not confined to offenders charged with the same offence, is founded on the basis that like cases should be treated alike and different cases should be treated differently: Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 and Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46. It is desirable that related offenders should be sentenced at the same time by the same judge although, as occurred in the present case, this is not always possible. Where co-offenders are not sentenced by the same judge, the second judge is not bound by the findings made by the first judge in respect of another co-offender. Thus, differences in the result where different judges sentence co-offenders may be explicable by reference to differences in the evidence presented in each case.

16. In the present case, the applicant and Mr Bittner were true co-offenders in that they were convicted of the same offence: attempt to possess a commercial quantity of an unlawfully imported border controlled drug, namely 4.34kg of cocaine. There was no material difference between the agreed facts in each sentence hearing. Because of the arguments raised by Mr Fernandez in support of the ground, it is necessary to consider in some detail the proceedings on sentence and sentencing judgment in respect of each of the applicant and of Mr Bittner.

The sentencing judgment in respect of the applicant

17. The agreed facts tendered at the applicant’s sentence hearing established the following narrative, which was set out in the sentencing judgment.

18. On 3 December 2018, a consignment addressed to the applicant arrived in Sydney from Lima, Peru. Its contents were described, in Spanish, as four ceramic craft boxes. The delivery address was the business premises of a company of which the applicant and Daniel Martinez (another co-offender) were employees. On 3 December 2018, the consignment was intercepted by Australian Border Force officers who discovered that it contained 4.34kg of cocaine in various forms, the street value of which was estimated to be between $925,000 and $1.4m.

19. On 3, 6, 10 and 20 December 2018, the applicant phoned DHL Express Couriers to enquire about the consignment. He was told that DHL would investigate. On 31 December 2018, NSW Police delivered the consignment, from which the cocaine had been removed. The applicant received a text message to inform him that the consignment had been delivered. He contacted Mr Martinez to tell him of the delivery. They agreed that Mr Martinez should contact Mr Bittner as both the applicant and Mr Martinez were on holidays and away from Sydney at that time. That afternoon, Mr Bittner called the applicant and told him he would go to the delivery address to find out whether the consignment was in fact there.

20. Later that day, at 4.38pm, Mr Bittner drove his white Range Rover to the delivery address, stopped for a few seconds and drove off. At 4.56pm, Mr Bittner and an unknown male drove to Bunnings where Mr Bittner hired a white Toyota Hilux and a yellow hand trolley.

21. At 6pm, the Hilux returned to the delivery address. The unknown male seen with Mr Bittner at Bunnings and another unknown male began loading the four crates which constituted the consignment into the Hilux. At about this time, a black Mazda parked several hundred metres away from the delivery premises. Mr Bittner got out of the Mazda and went to help the two men load the consignment into the Hilux. When they had finished loading, the two unknown males drove away in the Hilux and Mr Bittner was picked up by the Mazda, which also drove away. Both vehicles drove to Mr Bittner’s home where the consignment was unloaded. The following morning, Mr Bittner returned the Hilux to Bunnings.

22. On 1 January 2019, Mr Martinez called the applicant and told him that there was an issue with the consignment and asked him to call Mr Bittner because he thought the DHL delivery driver was dodgy. Later that day, the applicant spoke to Mr Bittner on the phone. Mr Bittner informed him that the consignment had been interfered with and that he needed to find out who the delivery driver from DHL was. He said that he did not think that Australian Border Force was involved because there was no “green thing” (the seizure/examination form). Mr Bittner told the applicant that he had told “them” that he (the applicant) had nothing to do with it, did not control it and had only helped “it get here.”

23. At 11.38am, on 4 January 2019, Mr Bittner phoned a Peruvian landline and told the person at the other end of the line what had happened with the consignment and his suspicion that someone from the delivery company (DHL) had interfered with it, rather than the authorities. Later that day, at 11.44pm, Mr Bittner called the same Peruvian landline and explained that, despite appearances, he was not responsible for the missing cocaine. He asked for help in identifying the DHL delivery driver. After this call, Mr Bittner and Mr Diez (another co-offender) left Mr Bittner’s house and went to the gaming room at the Marconi Club.

24. At 11.14pm on 6 January 2019, Mr Bittner called the applicant and arranged for him to meet him at the Marconi Club.

25. On 8 January 2019, as part of their investigation, police sent a message to the offender’s phone from an unknown number. The message contained a picture of the cocaine from the consignment and said “nice perico … maybe we talk.”

26. At 11.36am on 8 January 2019, Mr Bittner told Mr Martinez on the phone that he had opened the crates and found that everything was broken. They discussed taking revenge on whoever was responsible for interfering with the consignment. At 12.14pm on the same day, the applicant told Mr Martinez over the phone about the message he had received. Mr Martinez advised the applicant to “play dumb” and not respond. At 12.25pm, Mr Bittner told Mr Martinez to direct the applicant not to respond to the message and that he (Mr Bittner) would take care of things. At 12.57pm, the applicant phoned Mr Bittner and asked him what he should do about the message. Mr Bittner advised him not to reply to it. When the applicant asked Mr Bittner whether the police had sent the message, Mr Bittner responded that “they would already be gone if that were the case.”

27. At about 1pm on the same day, Mr Bittner was arrested by police in the gaming room of the Marconi Club. He admitted to having a small amount of cocaine in his pocket (this was the subject of the charge under s 10(1) of the Drug Misuse and Trafficking Act). Mr Martinez was arrested at 1.09pm. The applicant was arrested at 1.10pm and Mr Diez was arrested at 1.30pm.

28. When police executed a search warrant on Mr Bittner’s home, police found the four crates in which the consignment had been contained, consignment paperwork, drug packaging and broken ornaments from the consignment, $203,350 in Australian currency, USD$11,000 and small packages of white powder in the kitchen, financial records relating to the cash and a laboratory for the extraction of a substance suspected to be cocaine.

29. At about 3.43pm on 8 January 2019, the applicant participated in a recorded interview in which he admitted knowing Mr Bittner, Mr Martinez and Mr Diez; he accepted that he was the addressee for the consignment; agreed that he had paid almost $1,000 in duties for the consignment; denied knowing that it contained cocaine; and believed that he had been set up.

30. When addressing the applicant’s subjective circumstances, his Honour noted that the applicant had not given evidence at the sentence hearing but had expressed his remorse and apologised in a letter which was tendered. His expressions of remorse were supported by character references.

31. The applicant’s wife of 20 years gave evidence on affidavit in which she deposed that she and the applicant have two sons, one of whom has been diagnosed with Autistic Spectrum Disorder/Global Development Delay. In 2005, in response to the family’s financial difficulties she began to drink heavily, for which she obtained treatment although she remains alcohol dependent. She suffers from recurrent depression. Although she has returned to full-time work, she was unable to meet their mortgage payments. As a consequence, she and her two sons have moved in with her parents.

32. A report from Dr Jonathan Adams, forensic psychiatrist, was tendered, from which his Honour quoted as follows:

“Under the heading ‘Opinion’, the author states (p. 8) that the offender:

‘… gave a clear account of experiencing mounting psycho-social stresses during the months leading up to the offending behaviour, including his wife’s alcohol use disorder, his father’s terminal medical condition, challenges associated with his son’s autism diagnosis and escalating financial stress. It is in this context that he began to experience emerging symptoms of major depression. He described how he continued working and fulfilling various additional obligations, however he also gave a clear account of how he struggled to do so given his deteriorating mental health.

It appears to be the case that Mr Martellotta became involved in the offending behaviour because he was motivated by the possibility of financial gain, in order to address mounting financial issues. It is reasonable to conclude that his symptoms of major depression would have impacted his decision making capacity and judgement.’

The author further notes that the offender has continued to endure symptoms of major depression whilst in custody. His father passed away soon after his arrest. The author stated, however, that the offender has ‘manifested a good overall level of insight into his deteriorating mental health and his pathway into the offending’.”

33. His Honour allowed a 25% reduction for the plea of guilty and accepted that the applicant had shown remorse, was contrite, was of prior good character and had good prospects of rehabilitation. As to the applicant’s mental state at the time of the offending, his Honour found:

“I am satisfied that the offender’s mental state, having symptoms of major depression, would have impacted his decision making at the time; although his motivation was for financial gain in the context of his personal circumstances. I would accept his level of moral culpability is reduced but not to a significant extent.”

34. His Honour addressed the applicant’s role in the offending against that of Mr Bittner as follows:

“The offender could not be regarded as the principal in the importation. However, nor could he be regarded as being a mere courier. The offender was in a trusted position to take possession of the drugs. I would accept the proposition that the offender’s role involved a higher risk of detection compared to that of the co-offenders, which is consistent with having a more subordinate role. The offender was not responsible for the unpacking of the drugs. I am satisfied his co-offender Bittner’s role was considerably greater than that of the offender. I am satisfied the offender did have actual knowledge, however, that the consignment contained a border controlled drug.”

35. In assessing the objective gravity of the offending, his Honour noted that the “quantity of the drug was over two times the threshold of commercial quantity and the purity was relatively high.” His Honour assessed the objective seriousness of the offence as “being well below the mid-range but not at the lowest end for offences of this type.”

The sentencing of Mr Bittner

36. In order to address the parity ground, it is necessary to consider the basis of the sentencing judgment of Weinstein SC DCJ in respect of Mr Bittner to ascertain whether any discrepancy between the applicant’s sentence and that imposed on Mr Bittner is explicable on that basis: PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61 at [24], [48] (Basten JA, Button and N Adams JJ relevantly agreeing).

The proceedings on sentence for Mr Bittner and Mr Martinez

37. The sentence hearing before Weinstein SC DCJ in respect of Mr Bittner and Mr Martinez took place over two days because on the first day (23 January 2020), the sentencing judgment of Townsden DCJ had not been delivered. As the applicant’s parity complaint does not extend to the sentence imposed on Mr Martinez, it is not necessary to consider the evidence of and submissions in respect of Mr Martinez.

38. On the first day, the Crown tendered its evidence and made submissions but Mr Bittner’s counsel was not called on to respond until the second day, 18 May 2020.

39. As referred to above, the agreed facts in respect of the applicant and Mr Bittner were substantially the same. The Crown submitted in respect of Mr Bittner that he was “a senior person in the syndicate” because he took possession of the consignment, brought it back to his home address and was involved in its deconstruction. The Crown submitted that he was higher in the hierarchy than the applicant or the other two co-offenders (Mr Martinez and Mr Diez).

40. On the second day, 18 May 2020, Ms Goodwin, who appeared for Mr Bittner, tendered a psychological report of Mr Ballardie and three references from members of Mr Bittner’s family.

41. Mr Bittner gave evidence on sentence. He adopted the history he had given to Mr Ballardie, which included that he had been sexually abused as a child, his brother had committed suicide and, some months before the offending conduct, his son had committed suicide. He said, of his drug use:

“… I was taking a little bit of coke and I was drinking a lot after, after I lost my son I went downhill that was 10 months before I got, I got done for [the] job I went downhill.”

42. When asked whether he sold drugs to feed his drug addiction, he said:

“A. Did I sell drugs no I didn’t sell drugs to get [sic, feed] my addiction I did - I didn’t take big amounts of drugs anyway it was only a small amount and I had a gambling problem, after I lost my son I started gambling a lot that’s why I’m in this situation I am today I took some money from these people from their - from these drugs and ..(not transcribable).. payments and I used some of their money for gambling and that’s why I’m here.”

43. Mr Bittner said that he had known Mr Martinez for 40 years because they had come to Australia together. When asked how he came to be involved in “the operation”, he said:

“A. I’ll tell you more or less what happened is on the funeral of my son that two Daniels came, came to see me anyway and I was telling him how hard I was doing it - I was talking to Martellotta and Daniel and was telling how hard I was doing it with money wise I didn’t have money for the funeral and--

Q. Is this the funeral of your son?

A. The funeral of my son on the 28th of February and this is, I saw the boys and Martellotta told me if I - if I wanted he could help me out, assist me he was going to get some stuff from overseas to sell over here in the market and if I wanted I could give him a hand to sell and I say “Yes I need some money”, funny all this happened he didn’t call me he called me about five months later he told me the stuff came---“

44. Mr Bittner gave evidence that when the shipment came in, he knew that it contained drugs but he did not know the quantities involved. He said:

“I knew it was drugs and … I didn’t know the amount okay, I didn’t know the amount they were going to send I didn’t know how big or nothing so they told me ‘you get paid $50,000 for the job’ and I said ‘Okay it sounds good but let me talk to the other boys’ I talked to - so I went I said ‘I have to talk to the other guys’ I went and talked to the other guys we’re going to divide the money by three [Mr Bittner, the applicant and Mr Martinez] okay.”

45. Mr Bittner gave evidence that he went to pick up the consignment in his own car but because the crates would not fit, he had to hire a car to transport the consignment to his house. When he opened them and saw that everything was broken, he started to panic. Mr Bittner also gave evidence about the provenance of the cash found in his house.

46. Following Mr Bittner’s evidence, the Crown made further submissions. It submitted that Mr Bittner’s role was “someone beyond a mere courier, someone who has authority to recruit, direct, [communicate] information back that’s a level higher than a mere courier, it’s probably a high level intermediary at its lowest indication.” In argument, his Honour raised with the Crown Mr Bittner’s subjective factors (sexual abuse as a child, significant mental health issues, the suicide of his brother and his son’s suicide months before the incident) and referred to the following authorities: R v Millwood [2012] NSWCCA 2; Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194; R v Fernando (1992) 76 A Crim R 58 and Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37. The Crown indicated that he did not cavil with “that” at all, which I take to mean that the Crown accepted that these factors were relevant. The Crown emphasised the objective seriousness of the offence and Mr Bittner’s motivation of “greed”. His Honour put to the Crown that the greed was “partly connected to a gambling addiction”.

47. Ms Goodwin accepted that Mr Bittner’s role in the syndicate was above that of Mr Martinez but did not concede that it was above that of the applicant. She put that Mr Bittner’s role was that of storeman, having been entrusted to pick up the consignment. She emphasised his lack of sophistication in using his own licence to hire the Hilux vehicle to pick up the consignment. The Crown said in reply that although the applicant was the consignee, Mr Bittner was entrusted by others (higher up in the syndicate) to store the drugs for them.

The sentencing judgment in respect of Mr Bittner

48. His Honour summarised the evidence. He said of Mr Bittner’s oral evidence:

“The offender gave evidence before me today (on 18 May 2020), at some length, and he was cross-examined by the Crown. His evidence was largely consistent with that which was in the report of Mr [Ballardie]. In some respects, the offender’s evidence was slightly disjointed, and I would attribute any disjointedness in his evidence to his ADHD in particular. He did not resile from his responsibility in committing the offences, and in my opinion, he did his best, in all the circumstances, to assist the court.”

49. His Honour’s findings regarding Mr Bittner’s role included the following:

“21 The Crown submits that the offender had a senior, managerial role in the criminal syndicate importing cocaine. This can be inferred, it is said, from the responsibilities and discretion the offender held in performing various critical roles including:

(1) Recruiting co-offenders into the operation to take delivery of the consignment;

(2) Organising and directing their actions;

(3) Overseeing the collection and removal of the consignment when it was unexpectedly delivered when the co-offender Martellotta was away;

(4) Taking ultimate receipt of the consignment at his residential premises;

(5) Deconstructing the consignment for removal of the cocaine; and

(6) Acting as the point of contact with the Peruvian end of the operation with regard to the receipt of the consignment and the issues with it.

22 It was submitted by Ms Goodwin that in this case the delivery of the importation was not particularly sophisticated involving a lesser quantity of drugs, the consignment being addressed to the business address of one of the co-offenders, and the consignment being delivered by a commercial delivery company. The role played by the offender was not sophisticated and whilst addressing me today, she used the word, ‘storeman’, or, ‘warehouse person’. I note that these are not terms of art. Having been recruited to pick-up the consignment, he hired a car in his own name using his own driver's license and credit card in order to do so, and then took the consignment to his own home address. It was submitted that the offender's role, albeit pro-active, was towards the lower end of the hierarchy and although it involved some meaningful involvement, he was acting largely at the direction of others.

23 The offending took place for greed. It was not very sophisticated. I find that the offender’s role was the point of contact in Australia for the Peruvian exporters. His role must be considered as something more than a mere warehouseman although it is impossible, in my opinion, to define his role with any certainty. He did have the involvement as set out by the Crown, but it was a largely unsophisticated operation and in my opinion, the offending, taking into account the maximum penalty, sits at somewhere just below the medium range of objective seriousness. In my opinion, his role was greater than Martellotta and certainly than Martinez.”

50. His Honour accepted that the money found in Mr Bittner’s house was not his but was proceeds of crime which belonged to others higher up the syndicate. His Honour found that Mr Bittner was motivated by greed although there was no evidence of a lavish lifestyle.

51. His Honour accepted that Mr Bittner had actual knowledge that the consignment contained a border-controlled drug.

52. When turning to Mr Bittner’s subjective circumstances, his Honour found that the offender had good prospects of rehabilitation and was entitled to a discount of 25% for his early plea of guilty. His Honour accepted that Mr Bittner had effectively no criminal history.

53. His Honour considered that Mr Bittner’s “mental health issues” were relevant to the following issues: reduction of moral culpability; whether Mr Bittner was an appropriate vehicle for general deterrence; whether a custodial sentence would weigh more heavily on him; and the significance of special deterrence. His Honour concluded:

“In my opinion, the offender’s disadvantage in the past goes to somewhat diminishing his moral culpability and I note the oft quoted passage in R vMillwood [2012] NSWCCA 2 by Simpson J which is well known, and which I will not repeat here. His disadvantage does not, however, exculpate him.”

54. His Honour referred to the parity principle and said:

“The sentence imposed by his Honour Townsden DCJ on the co-offender Martellotta was 6 years imprisonment, with a non-parole period of 4 years. Judge Townsden found that ‘Bittner’s role was considerably greater than that of the offender.’ I find that Mr Bittner’s role was greater than that of the offender, so far as I can glean it on the facts, but I am not able to do any more than that, on the evidence which I have. His Honour assessed the objective gravity of the offending behaviour as being well below the mid-range but not at the lowest end for offences of this type. I take into account parity when arriving at an appropriate sentence. The subjective case of Mr Bittner is very different to that of Mr Martellotta.”

55. In respect of the offence on the s 16BA schedule, his Honour made reference to Attorney General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518, the guideline judgment in respect of State offences on a Form 1, which are to be taken into account on sentencing pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and cited the following principles which his Honour correctly noted have been found to be applicable to a schedule under s 16BA of the Crimes Act:

“(a)    the focus is on sentencing for the primary offence;

(b)    greater weight is given to personal deterrence and retribution limited by the maximum penalty for the primary offence and the principle of totality;

(c)    ordinarily a longer sentence will be imposed due to the existence of the Form 1 (or 16BA schedule) offence and the additional penalty may be substantial; and

(d)    the penalty for the Form 1 (or 16BA schedule) offence may but    need not be quantified.”

56. When imposing sentence, his Honour expressly noted that he had taken into account “the matter on the s 16BA schedule”.

Whether there is a disparity

57. Mr Fernandez argued that Judge Weinstein erred in assessing the respective roles of the applicant and Mr Bittner; that the objective seriousness of their offending conduct had not been properly differentiated; and that the effect of the differences in their subjective backgrounds and the s 16BA schedule offence (in the case of Mr Bittner) was insufficient to account for the similarity of the sentences imposed on each, having regard to Mr Bittner’s greater role. Before turning to these three arguments, it is important to note the parameters of alleged disparity as a ground of appeal.

58. A parity ground does not afford an applicant an opportunity to impugn the sentencing judgment of a co-offender by alleging error in the sentencing judgment for a co-offender. A parity ground is to be resolved by reference to a comparison between the sentence imposed on the applicant and the sentence imposed on a co-offender to determine whether the applicant has a legitimate grievance. As referred to above, where the co-offenders were sentenced by different judges, a further question arises as to whether the two sentences can be explained by reference to the different material before each sentencing judge. In order to answer that question, it is necessary to address the material before each judge and the assessment by each of that material as reflected in their respective reasons.

59. Although the agreed facts were the same, there was a significant difference between the material before Townsden DCJ and that before Weinstein SC DCJ. First, the applicant did not give evidence whereas Mr Bittner gave evidence. Mr Bittner’s evidence was accepted by Judge Weinstein, not only as to his subjective circumstances, but also as to the circumstances of the offence for which he was to be sentenced as well as the offence on the s 16BA schedule.

The respective roles of the applicant and Mr Bittner

60. The effect of the difference in the material before the respective sentencing judges was that Judge Townsden had only the agreed facts to guide his assessment of the respective roles of the applicant and Mr Bittner, whereas Judge Weinstein also had Mr Bittner’s evidence, which was accepted. The difference in the material serves to explain why Judge Townsden, on the basis of the agreed facts, considered that Mr Bittner’s role was “considerably greater” than that of the applicant, whereas Judge Weinstein found that although Mr Bittner’s role was “greater” than that of the applicant, it was “impossible … to define his role with any certainty.”

61. In so far as Mr Fernandez ought be taken to have pressed his submission that Judge Weinstein was in error in not assessing Mr Bittner’s role as substantially greater, I reject the submission. Judge Weinstein’s assessment of the respective roles (in so far as it is relevant to parity) is not to be assessed by reference to what was before Judge Townsden, but rather what was before Judge Weinstein and also by reference to the findings which were open to his Honour to make on the basis of that evidence. This does not involve an assessment of the correctness of Judge Weinstein’s reasons (which, as I have said above, does not arise on an appeal on parity against the sentence imposed by Judge Townsden) but rather a consideration of whether the sentences of the applicant and Mr Bittner can be reconciled by reference to the different material which was before each sentencing judge.

62. Further, Mr Fernandez submitted that Judge Weinstein’s finding in [23] of his reasons that Mr Bittner “did have the involvement as set out by the Crown” ought be read as accepting the whole of the Crown’s submissions as to Mr Bittner’s role as set out in [21] of his Honour’s judgment (extracted above). I do not consider that such a construction does justice to his Honour’s reasons, which must be read as a whole. These reasons include the conclusion that although Mr Bittner was more than a warehouseman it was “impossible to define his role with any certainty”.

The differential assessment of objective seriousness

63. As is apparent from the recitation of the respective reasons of the sentencing judges, Judge Townsden assessed the objective seriousness of the applicant’s offending as “well below the mid-range but not at the lowest end for offences of this type.” Judge Weinstein assessed the objective seriousness of Mr Bittner’s offending as “somewhere just below the medium range of objective seriousness.”

64. Mr Fernandez submitted that the sentences imposed on the applicant and Mr Bittner did not adequately reflect this differentiation.

65. It is hardly necessary to observe that there is no standardisation of language when it comes to range in connection with objective seriousness. For example, for an offence with a maximum penalty of 10 years’ imprisonment, one judge’s mid-range will be from 4-6 years, while another’s might be from 3-7 years. This affects the extent to which descriptors such as “low” or “medium” can usefully be translated into numbers. It also prevents meaningful comparison, except in a broad-brush way, between findings of different judges. Although one judge can be expected to use such terms consistently when sentencing co-offenders, there is no lexicon or style guide which obliges different judges to adopt the conventions of their peers. In Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266, this Court (Basten JA, Beazley P and Wilson J agreeing) explained at [82]:

“... although it is conventional practice to divide objective seriousness into low, mid and high ranges (sometimes with further detail, such as ‘near the top of the low range’) there is no clear delineation of the scope of each range and it cannot be assumed that all judges apply the terminology uniformly. Accordingly, there is a difficulty in drawing firm conclusions from the penalties with respect to each range. … to identify a standard range of penalties merely by reference to an assessment of objective seriousness is to discount the importance of other considerations, including evidence of steps taken to adopt better practices since the time of the offending.”

66. This is not to say that the assessment of objective seriousness is arbitrary: it is plainly an important function of a sentencing judge. However, it does not provide the means for precise comparisons such as the one sought to be made by Mr Fernandez in the present case. All that can sensibly be concluded by the respective descriptions as to objective seriousness is that the objective seriousness of Mr Bittner’s offending was greater than that of the applicant because Mr Bittner’s role in the offending conduct was greater.

Whether the difference in the subjective circumstances was sufficient to account for the differences in the roles of the applicant and Mr Bittner

67. In effect, Mr Fernandez submitted that the difference in the subjective circumstances between the applicant and Mr Bittner was insufficient to counteract the effect of Mr Bittner’s greater role and of the offence on the s 16BA schedule (which was to be taken into account in Mr Bittner’s sentence).

68. This argument is allied with the previous one in that it depended on there being, as found by Judge Townsden, a significant difference in the respective roles. As referred to above, I consider that it was open to Judge Weinstein, on the basis of the material before his Honour, to find that there was a difference but not find that it was a substantial one.

69. Further, Judge Weinstein, by referring to R v Millwood, must be taken to have referred to the oft-quoted statement of Simpson J at [69] as follows:

“I am not prepared to accept that an offender who has the start in life that the respondent had bears equal moral responsibility with one who has had what might be termed a ‘normal’ or ‘advantaged’ upbringing. Common sense and common humanity dictate that such a person will have fewer emotional resources to guide his (or her) behavioural decisions. I should not be taken as implying that such a person bears no moral responsibility; but I consider that the DPP’s submission significantly underestimates the impact of a dysfunctional childhood. Indeed, it sits uneasily with the immediately preceding acknowledgement that his upbringing had been ‘tragic and dysfunctional’. That his background is a relevant consideration affording some (although limited) mitigation is entirely consistent with the approach taken by Wood J (as he then was) in R v Fernando (1992) 76 A Crim R 58, a decision which has repeatedly been followed in this Court. If that were not so, there would be no purpose in sentencing courts receiving, as they invariably do, evidence concerning the personal background of offenders.”

70. Thus, Judge Weinstein found that the effect of Mr Bittner’s subjective circumstances was to reduce his moral culpability for the offending conduct. There was nothing in the applicant’s subjective circumstances, which were challenging in a different way, to bring the applicant within the parameters of R v Millwood or R v Fernando. The applicant’s difficulties arose from the vicissitudes of adult life, whereas those of Mr Bittner arose from childhood experiences.

The effect of the s 16BA schedule offence in respect of Mr Bittner

71. Mr Fernandez submitted that, although Judge Weinstein was not obliged to quantify the effect of taking into account the offence of dealing with the proceeds of crime in the sentence imposed for the attempted importation offence, his Honour was nonetheless obliged to indicate in a non-quantitative way what its effect had been. In oral submissions, Mr Fernandez suggested that Judge Weinstein ought to have said, by way of example:

“I take it into account and, without quantifying the difference to the main sentence, this is an offence on the 16BA schedule that has little effect on the main sentence or a minor effect or a substantial effect or some other descriptor …”

72. I reject this submission. Judge Weinstein’s reasons indicate that his Honour was aware of the effect that the offence on the s 16BA schedule could have on the sentence imposed for the attempted importation offence and that his Honour need not quantify the effect in numerical terms. As referred to above, his Honour expressly took it into account before imposing the sentence. His Honour was not obliged to select an adjective to indicate what effect it had had on the sentence any more than it was necessary to describe in words (such as ‘minor’ or ‘substantial’) the weight given to other factors relevant to sentence.

Conclusion

73. Because the process of instinctive synthesis requires a sentencing judge to take into account both objective and subjective factors, two co-offenders who have pleaded guilty to the same or similar offences may have different sentences properly imposed on them. For the same reasons, two co-offenders who played different roles in the same offending conduct may have the same or similar sentences imposed on them, by reason of differences in their subjective circumstances. The reasons of Judge Townsden and Judge Weinstein are sufficient to explain the respective sentences imposed on the applicant and the co-offender, Mr Bittner. Having regard to the matters referred to above, I am not satisfied that there is any disparity between the sentences such as would entitle the applicant to a justifiable sense of grievance.

Orders

74. I propose the following orders:

1. Grant leave to appeal against the sentence imposed by Judge Townsden in the District Court on 28 February 2020.

2. Dismiss the appeal.

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Endnotes

Decision last updated: 22 July 2021