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District Court 6 July 2020

R v Diez

[2020] NSWDC 351

Drugs
SENTENCE 4339.8 GRAMS OF COCAINE CONTROLLED OPERATION NATIVE SPANISH SPEAKER ISSUES OF PARITY

Citation: R v Diez [2020] NSWDC 351
Court: District Court of New South Wales
Date: 6 July 2020
Judge: Weinstein SC DCJ

Background

The offender, a man born in May 1948 and a native Spanish speaker, was charged with attempt to possess a commercial quantity of an unlawfully imported drug, contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth). The drug in question was 4,339.8 grams of pure cocaine (gross weight 4,903.7 grams), imported from Lima, Peru, concealed inside ceramic ornaments. The consignment was estimated to have a street value of between $925,000 and $1.4 million.

The offender was one of four co-accused. The others were Daniel Martellotta, Alex Bittner, and Daniel Martinez. Martellotta and Martinez were employees of the business to which the consignment was addressed. Bittner had a more direct organisational role. The offender's involvement centred on the collection and examination of the consignment after it had been delivered by police as part of a controlled operation.

Police conducted physical surveillance and intercepted communications among the co-accused. The offender was observed driving Bittner to collect the consignment, helping unload it at Bittner's home, purchasing containers and bin liners at Bunnings the following day, and returning with Bittner to open the crates on camera. He was arrested on 8 January 2019.

  • What was the appropriate sentence for the offender's role in the attempted possession of a commercial quantity of unlawfully imported cocaine?
  • What discount applied for the offender's guilty plea?
  • How should the principles of parity apply given the sentences imposed on co-offenders, including Bittner and Martinez (sentenced by the same judge) and Martellotta (sentenced by a different judge)?
  • What weight should be given to the offender's age, health, language difficulties, and prior criminal history?

Decision

The court found that the offence was a serious one, involving a large quantity of high-purity cocaine imported from Peru as part of a coordinated scheme. Although the offender was not at the top of the criminal hierarchy, his role was active and deliberate. He drove Bittner to collect the consignment, assisted in its removal, purchased materials used to sort its contents, and returned the next day to open remaining crates. The court treated his involvement as substantial.

The court applied a 15% discount to reflect the offender's guilty plea. Without that discount, the court indicated it would have imposed a sentence of four years' imprisonment. The discounted sentence came to 3 years, 4 months and 24 days.

Parity considerations featured in the sentencing exercise. The co-offenders Bittner and Martinez had been sentenced by the same judge in R v Bittner; R v Martinez [2020] NSWDC 292, providing a direct reference point. The court took care to ensure the sentence was consistent with those outcomes, having regard to each offender's relative role and individual circumstances.

The offender had one prior similar offence from over 20 years earlier. His age, health issues, and the fact that he was a native Spanish speaker were among the personal circumstances taken into account. The court was satisfied that no penalty other than imprisonment was appropriate and fixed a non-parole period of 2 years and 1 month, backdated to the date of arrest.

Orders Made

  • The offender was convicted of attempt to possess a commercial quantity of unlawfully imported drug contrary to ss 307.5(1) and 11.1(1) of the Criminal Code 1995 (Cth).
  • A sentence of imprisonment of 3 years, 4 months and 24 days was imposed, reflecting a 15% discount for the guilty plea.
  • A non-parole period of 2 years and 1 month was fixed.
  • The sentence was backdated to 8 January 2019.
  • Eligibility for release on parole: 7 February 2021.
  • Head sentence expiry: 31 May 2022.

Key Takeaways

  • The District Court confirmed that attempt to possess a commercial quantity of unlawfully imported drug under the Criminal Code 1995 (Cth) carries a maximum penalty of life imprisonment, with no standard non-parole period applying.
  • Parity principles played a material role in the sentencing exercise, with the court cross-referencing sentences imposed on three co-offenders to ensure consistency relative to each participant's role and individual circumstances.
  • Where a sentence of imprisonment exceeds three years in a Commonwealth matter, the court must fix a single non-parole period under s 19AB of the Crimes Act 1914 (Cth), applying the principles in Power v R (1974) as confirmed in Hill v the Queen; Jones v the Queen (2010).
  • A guilty plea attracted a 15% sentencing discount, reducing the head sentence from the indicative four years to 3 years, 4 months and 24 days.
  • Personal factors including the offender's age, health, language background, and the age of a prior similar conviction were considered, though none displaced the primary need for a custodial sentence given the seriousness of the offence.

Legislation and Cases Referenced

Legislation
- Criminal Code 1995 (Cth), ss 307.5(1) and 11.1(1)
- Crimes Act 1914 (Cth), ss 16A(1) and (2), 17A(1), 19AB

Cases
- Green v R; Quinn v R (2011) 244 CLR 462; [2011] HCA 49
- Hill v the Queen; Jones v the Queen (2010) 242 CLR 520; [2010] HCA 45
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Power v R (1974) 131 CLR 623; [1974] HCA 26
- R v Bittner; R v Martinez [2020] NSWDC 292
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21