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14
Court of Criminal Appeal 21 July 2021

Martellotta v R

[2021] NSWCCA 168

Drugs
WHETHER THE CO

Citation: Martellotta v R [2021] NSWCCA 168
Court: Court of Criminal Appeal
Date: 21 July 2021
Judges: Basten JA at [1]; Walton J at [9]; Adamson J at [10]

Background

The applicant pleaded guilty to attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely 4.34 kg of cocaine, and was sentenced on 28 February 2020 by Townsden DCJ in the District Court to six years' imprisonment with a non-parole period of four years. His co-offender, Bittner, was sentenced for the same offence nearly three months later by a different District Court judge, Weinstein DCJ, who imposed a sentence of six years and nine months with a non-parole period also of four years.

Bittner's sentencing was more complex than the applicant's. Weinstein DCJ took into account an additional offence under s 16BA of the Crimes Act 1914 (Cth), namely dealing with money reasonably suspected of being proceeds of an indictable crime exceeding $100,000. Bittner also received a no-penalty order for a drug possession offence.

The applicant sought leave to appeal on the sole ground that he had a justifiable sense of grievance arising from the parity principle. His argument was that, given Bittner's greater role in the offending and his additional offence taken into account at sentence, the non-parole periods should not have ended up effectively identical.

  • Whether the applicant had a justifiable sense of grievance about the disparity between his sentence and that imposed on his co-offender, so as to enliven the parity principle.
  • Whether differences in the material before each sentencing judge, including evidence given by Bittner at his own sentencing hearing, explained the differential assessment of their respective roles.
  • Whether Weinstein DCJ was required to describe in qualitative terms (such as "minor" or "substantial") the effect of the additional s 16BA offence on the head sentence imposed on Bittner.

Decision

The Court of Criminal Appeal dismissed the appeal, finding no disparity that would entitle the applicant to a justifiable sense of grievance. Adamson J, with whom Basten JA and Walton J agreed, held that the sentences imposed on the applicant and Bittner were sufficiently explained by the differing material before each sentencing judge. Crucially, Bittner gave evidence at his own sentencing and this evidence qualified the objective appearance of the agreed facts, which had been substantially identical in both proceedings.

The Court accepted that Weinstein DCJ was aware of the sentence imposed on the applicant and was conscious of the need to impose a proportionate sentence on Bittner. The two judges used different language to describe the respective roles of the two offenders, but the Court found this did not disclose any relevant error. Basten JA observed that it was unknowable what sentence Townsden DCJ would have imposed had he sentenced Bittner, or what Weinstein DCJ would have imposed had he sentenced the applicant, making any direct comparison inherently uncertain.

On the s 16BA additional offence, the Court rejected the argument that Weinstein DCJ was required to assign a qualitative descriptor to the effect of that offence on the head sentence. His Honour expressly took the additional offence into account, and the Court held that a sentencing judge is no more obliged to select an adjective to characterise the weight given to any particular factor than for any other sentencing consideration. The process of instinctive synthesis does not require such verbal labelling.

Orders Made

  • Leave to appeal against the sentence imposed by Townsden DCJ in the District Court on 28 February 2020 was granted.
  • The appeal was dismissed.

Key Takeaways

  • The parity principle requires that co-offenders who committed the same offence receive the same sentence if other things are equal, but differences in role, subjective circumstances, and the evidence before each sentencing judge can all justify divergent outcomes.
  • Where co-offenders are sentenced by different judges, the second judge is not bound by the findings of the first judge regarding the other co-offender's role or culpability.
  • A stronger subjective case on the part of one co-offender can legitimately produce a similar or equal non-parole period even where that co-offender had a greater role and an additional offence taken into account, because the process of instinctive synthesis weighs both objective and subjective factors together.
  • No error was established in Weinstein DCJ's approach to the s 16BA schedule offence simply because his Honour did not use descriptive language to quantify or characterise its effect on the head sentence; expressly taking an additional offence into account was sufficient.
  • The Court of Criminal Appeal confirmed that, where possible, co-offenders should be sentenced by the same judge at or near the same time, but acknowledged this is not always achievable in practice.

Legislation and Cases Referenced

Legislation
- 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
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Postiglione v The Queen (1997) 189 CLR 295
- 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
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
- R v Fernando (1992) 76 A Crim R 58
- R v Millwood [2012] NSWCCA 2
- Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266