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District Court 18 May 2020

R v Bittner; R v Martinez

[2020] NSWDC 292

Drugs
SENTENCE 4339.8 GRAMS OF COCAINE CONTROLLED OPERATION NO PRIOR CRIMINAL HISTORY MENTAL ILLNESS AND SIGNIFICANT HARDSHIP PARITY WITH CO

Citation: R v Bittner; R v Martinez [2020] NSWDC 292
Court: District Court of New South Wales
Date: 18 May 2020
Judge: Weinstein SC DCJ

Background

A commercial quantity of cocaine, approximately 4,339.8 grams at 88.5% purity, was concealed inside ceramic ornaments and shipped from Lima, Peru to business premises in Blacktown, Sydney in December 2018. The estimated street value ranged between $925,000 and $1,400,000. Australian Border Force intercepted the consignment, removed the drugs, and authorised a controlled police operation to deliver the empty packaging.

Two offenders were sentenced in these proceedings. Alex Bittner physically collected the consignment on 31 December 2018 and faced charges of attempted possession of an unlawfully imported border controlled drug and a related money laundering matter. Daniel Martinez, a co-worker at the business used as the delivery address, aided and abetted the attempted possession by facilitating communications between Bittner and a third co-offender, Martellotta, and advising Martellotta how to handle police contact after the operation was compromised.

Both offenders were arrested on 8 January 2019. Martinez made admissions during his record of interview after police presented intercepted communications. Bittner declined to be interviewed. Significant cash, drug packaging, and the consignment crates were found at Bittner's home.

  • What sentence was appropriate for each offender for their respective roles in the attempted possession of a commercial quantity of unlawfully imported cocaine?
  • How should the 25% guilty plea discount apply to each offender's sentence?
  • What weight should be given to personal mitigating factors, including mental illness and significant hardship?
  • How should parity with co-offenders be maintained across the sentencing proceedings?
  • What approach to the non-parole period was required for these Commonwealth offences, given no standard non-parole period applied?

Decision

Weinstein SC DCJ determined that imprisonment was the only appropriate sentence for both offenders, having considered all available alternatives under s 17A(1) of the Crimes Act 1914 (Cth). The maximum penalty of life imprisonment for the principal offence served as the legislative guidepost throughout, and the absence of a standard non-parole period meant the court applied the principles from Power v The Queen (1974) and Part 1B of the Crimes Act.

The court applied a 25% discount to both offenders' sentences in recognition of their guilty pleas. For Martinez, without the discount the court indicated it would have imposed 3 years and 4 months imprisonment, resulting in a discounted sentence of 2 years and 6 months. The sentence was backdated to the date of arrest, 8 January 2019.

The judgment references that personal circumstances, including mental illness and significant hardship, were taken into account as mitigating factors, alongside the absence of prior criminal history for the offenders. Parity with co-offenders, including Martellotta and Diez, was also a consideration in calibrating the sentences imposed.

For Bittner, the judgment records the charges and agreed facts in detail but the full sentencing reasoning and specific orders for Bittner are not reproduced in the available text. The orders section provided relates specifically to Martinez.

Orders Made

  • Martinez was convicted of aiding, abetting, counselling, or procuring the attempted possession of an unlawfully imported border controlled drug (commercial quantity), contrary to ss 11.2, 11.1(1) and 307.5(1) of the Criminal Code 1995 (Cth).
  • A sentence of imprisonment of 2 years and 6 months was imposed after a 25% guilty plea discount, backdated to 8 January 2019.
  • Martinez was to be released on 7 June 2020 upon entering into a recognisance of $500 without surety.
  • A further condition of good behaviour applied until 7 July 2021.

Key Takeaways

  • For Commonwealth drug importation offences carrying a maximum of life imprisonment and no standard non-parole period, the District Court applied the sentencing framework in Power v The Queen (1974) and Part 1B of the Crimes Act 1914 (Cth) to determine the minimum term to be served.
  • A 25% guilty plea discount was applied to both offenders, consistent with established principles for utilitarian value in Commonwealth sentencing.
  • Personal mitigating factors, including mental illness and significant hardship, were weighed in the sentencing exercise even where the objective seriousness of the offence was high.
  • Parity with co-offenders remained a live consideration, with the court calibrating sentences by reference to the comparative roles of Bittner, Martinez, Martellotta, and Diez.
  • Where an offender aids and abets an attempted possession rather than being the principal collector of the drugs, that secondary role is reflected in the sentence, though involvement in facilitating communications and advising on post-detection conduct remains seriously regarded.

Legislation and Cases Referenced

Legislation:
- Criminal Code 1995 (Cth), ss 11.1(1), 11.2, 307.5(1), 400.9(1)
- Crimes Act 1914 (Cth), ss 16A, 16BA, 17A, Part 1B
- Drug Misuse and Trafficking Act (NSW), s 10(1)

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Green v R; Quinn v R (2011) 244 CLR 462
- Hill v The Queen; Jones v The Queen [2010] HCA 45
- Dipangkear v R [2010] NSWCCA 156
- Le v R [2017] NSWCCA 26
- Markarian v The Queen [2005] HCA 25
- Muldrock v The Queen (2011) 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- Power v The Queen (1974) 131 CLR 623
- R v Leroy (1984) 2 NSWLR 441
- R v MacLeod [2013] NSWCCA 108