District Court New South Wales Medium Neutral Citation: R v Bittner; R v Martinez [2020] NSWDC 292 Hearing dates: 23-24 January 2020, 18 May 2020 Date of orders: 18 May 2020 Decision date: 18 May 2020 Jurisdiction: Criminal Before: Weinstein SC DCJ Decision: For the offence of attempt to possess a commercial quantity of unlawfully imported drug contrary, Mr Bittner is sentenced to a term of imprisonment of 6 years 9 months, with a non-parole period of 4 years. For the offence of possess prohibited drug, a s10A conviction with no further penalty is imposed. Orders for Bittner at [58]. For the offence of aid, abet, counsel or procure the commission of an offence, Mr Martinez is sentenced to a term of imprisonment of 2 years, 6 months. The offender is to be released on 7 June 2020 upon entering into a recognizance of the sum $500 without surety and a further condition of being of good behavior until 7 July 2021. Orders for Martinez at [112]. Catchwords: SENTENCE – attempted possession of an unlawfully imported border controlled drug – aid, abet, counsel or procure the commission of an offence - 4339.8 grams of cocaine – illegally imported from Peru into Australia - Controlled Operation -no prior criminal history – mental illness and significant hardship– parity with co-offenders – imprisonment Legislation Cited: Criminal Code 1995 (Cth) Drug Misuse and Trafficking Act Cases Cited: 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 Category: Sentence Parties: Regina (Crown) Daniel Martinez Alex Bittner Representation: Ms C McMullan (Crown) 23-24 January 2020 Mr K Kanagasabapathy (Crown) 18 May 2020 Mr D McCallum (Martinez) Ms S Goodwin (Bittner) File Number(s): 2019/75352019/7706 Judgment Alex Bittner 1. The offender, Alex James Bittner, born in September 1960, is before the court for sentence for possess prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act, which carries a maximum penalty of 2 years, and 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), which carries a maximum penalty of life imprisonment. There are no non-parole periods for these offences. 2. The offender also has a charge to be dealt with on a section 16BA Schedule attaching to the Commonwealth offence, namely deal with money reasonably suspected of being proceeds of crime, contrary to s 400.9(1) of the Criminal Code 1995 (Cth), and he asks me to take that into account when imposing sentence. 3. The agreed facts are as follows: 1. Daniel Gerado Martinez aided and abetted Daniel Martellotta and Alex Bittner in their attempt to possess 4.34 kg of a border controlled drug (cocaine), illegally imported from Peru into Australia. 2. On 3 December 2018, a consignment arrived in Sydney from Lima, Peru. The goods were described in Spanish as '4 Cajas de artesania caramicea' (translation: 4 ceramic craft boxes). 3. The delivery address was the business premises of Simco Catering Equipment ("Simco"). Both Martinez and Martellotta were employees of Simco at this time. 4. On 3 December 2018, Australian Border Force (ABF) officials inspected the consignment and found that it consisted of four large wooden and cardboard crates approximately 70cm3 in size, each containing a variety of plaster and wooden ornaments wrapped in bubble wrap. Concealed behind a mirror on one of the ornaments was a silver foil package containing approximately 30 g of cocaine. 5. On 11 December 2018, investigators with NSW Police extracted a total of 163 round tablets of pressed cocaine powder from the consignment, hidden behind mirrors in various shaped ornaments. 6. Forensic examination of the pressed powder tablets revealed the following: 1. The total gross weight of the 163 compressed powder tablets was 4903.7 grams; 2. Forensic analysis revealed that the powder contained cocaine with an average purity of 88.5%; and 3. The calculated total pure weight of the cocaine was 4339.8 grams. 1. The current street value of this cocaine seizure is estimated to be between $925,000 and $1,400,000 Australian dollars. Conduct of the offenders prior to their attempted possession of the cocaine 1. On 3 December, 2018, Martellotta called DHL Express Couriers from a mobile ending in 138 to enquire about the status of the consignment. Martellotta made further calls to DHL from his mobile on 6 and 10 December 2018. Martellotta was advised that his item was being held by ABF for processing. 2. On 20 December 2018, Martellotta made a further call to DHL. He stated that he had not received his consignment and enquired as to why the status had been changed to 'delivered'. He was advised that DHL would investigate and call him back. Controlled Operation 1. On 31 December 2018, a Controlled Operation Authority was issued to facilitate the delivery of the consignment by members of the NSW Police. 2. At 11am the consignment was delivered outside the front doors of the Simco premises in Blacktown. The consignment was left on the ground, visible from the road. All of the cocaine had been removed from the consignment, leaving only drug packaging and broken ornaments. At 11:25am, Martellotta received an SMS on his mobile, purporting to be from DHL, stating that his package had been delivered. 3. Just before 1:30pm, police intercepted Martellotta making unanswered calls to Martinez and Bittner. Martellotta said that he had left a message for Bittner that everything was dropped off in front of the door at Simco. Martellotta asked Martinez to call Bittner and tell him that the consignment was dropped off at midday and that Bittner had to go and look. At 4:02pm, Martinez and Martellotta had a further conversation where they both confirm they have spoken to Bittner. When Martellotta states that he just got off the phone to Bittner, Martinez asked "did he find the sweet bread you left for him?" (Sweet bread is a code word for cocaine). Martellotta responded "he's just going now to have a look." Collection of the Consignment 1. At 4:38pm on 31 December 2018, a white Range Rover owned by Bittner, drove along Forge Street, Blacktown and stopped directly outside the Simco premises where the consignment had been delivered. The vehicle stopped for approximately 10 seconds and then drove away from the location. 2. At 6:00pm, a white Toyota Hilux drove along Forge Street and stopped directly outside the Simco premises. An unknown male, seen earlier with Bittner at Bunnings, exited the Hilux along with a second unknown male. The two males began loading the four crates of the consignment into the rear of the utility. As this occurred, a black Mazda belonging to Luis Fernando Diez was seen to park several hundred metres south of the Simco premises. Bittner exited from this vehicle, walked over to the two men and proceeded to help them load the consignment into the Hilux. When the consignment was loaded, the two vehicles travelled away from the location. 3. On 4 January 2019 Bittner contacted unknown persons in Peru to inform them the consignment had been interfered with and the cocaine removed. He reiterated in the call that he was not responsible for the missing cocaine, despite what it looked like. 4. At 11:36am on 8 January 2019, Police intercepted a conversation between Bittner and Martinez. Bittner told Martinez how he had opened the boxes to discover everything broken and that he had called his mate urgently, who advised for him to wait and open the remaining boxes on camera. Bittner said he brought Diez in for this part. Bittner reinforced that they would find the person responsible and that he wanted revenge "…his mother won't even recognise him". Martinez ended the conversation saying: "All the sacrifices we made...FUCKU! Fuck me dead! " 5. When the police sent Martellotta a picture message of the cocaine from an unknown number on 8 January 2019, Martinez advised Martellotta not to respond, telling him to "act stupid". He notified Bittner about the message at Martellotta's request. Bittner and Martinez subsequently spoke and Bittner asked Martinez to tell Martellotta not to respond to the picture message, saying that he (Bittner) would take care of things and "send some people over there". Arrests and Execution of Search Warrants 1. At about 1pm on 8 January 2019, Bittner was arrested by police in the gaming room of a club at Bossley Park. He admitted to having a small amount of cocaine in his pocket. At 1:09pm Martinez was arrested outside his home address. At about 1:10pm, Martellotta was arrested by Police at Woongarrah. At 1:30pm Diez was arrested in the car park of a shopping centre. 2. Search warrants were executed at the residences of the 4 co-accused. 3. The following items were seized from Bittner's home at Bossley Park: 1. The four wooden crates used to contain the consignment; 2. Consignment paperwork; 3. Drug packaging and broken ornaments from the consignment; 4. $203,350 in Australia currency, concealed behind a kickboard in the kitchen; 5. $11,100 in US currency, concealed behind a kickboard in the kitchen; 6. Small packages of white powder behind a kickboard in the kitchen; and 7. Financial records pertaining to the cash seized. Records of Interview 1. At about 3:18pm on 8 January 2019, Martinez participated in an ROI with police. He initially denied any knowledge of the cocaine importation and denied having any discussions with Martellotta or Bittner about it. After police showed Martinez evidence of conversations they had intercepted between Martinez, Martellotta and Bittner, Martinez made the following admissions: 1. Martellotta told him in around mid-December that he (Martellotta) had agreed to help Bittner with an illegal importation of drugs; 2. He was told the drugs were cocaine, although he denied knowing that the amount would be 5kg; 3. He knew the delivery was being made to his and Martellotta's place of work; 4. He knew that the delivery went wrong; and 5. He accepted having conversations with Martellotta and Bittner about the botched delivery and how to handle it. 1. At about 3:43pm on 8 January 2019, Martellotta participated in an ROI with police, when he accepted his involvement in the importation of the consignment, but denied having any knowledge that the consignment would contain cocaine. He told police he believed he may have been set up by the others involved. 2. Both Bittner and Diez declined to be interviewed. Evidence 1. Before me are 4 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. The indictment; 2. Court attendance notice; 3. Section 16BA Schedule; 4. Statement of agreed facts; 5. Criminal History; 6. Crown Submissions on Sentence; and 7. Comparative Sentencing Schedule. 1. Exhibit 2 is a psychological assessment report of Neil Ballardie, dated 20 January 2020. 2. Exhibit 3 are character references from: 1. Ms Sandra Ruiz, dated 12 January 2020; 2. Ms Alejandra Bittner, dated 20 January 2020; and 3. Ms Sandra Bittner, dated 11 January 2020. 1. Exhibit 4 are two documents relating to COVID-19, and its impact on New South Wales prisoners. The first is from the Kirby Institute at the University of New South Wales under the hand of Professors Butler, McIntyre and Levi, and Dr Paul Simpson, dated 16 April 2020. The second document is from forensic psychiatrist Dr Andrew Ellis, dated 9 April 2020. Exhibit 1 1. Exhibit 1 is notable because it discloses that the offender has a very limited criminal history. He was charged with possess prohibited drug in 2015, for which he received a section 10 bond. Exhibit 2 1. Mr Ballardie interviewed and psychometrically assessed Mr Bittner and diagnosed him with a Major Depressive Disorder, a Generalised Anxiety Disorder, Adult Attention Deficit Hyperactivity Disorder (ADHD) and a Drug Use Disorder. He believes, on the balance of probabilities, that there was a causal connection between external stressors, an exacerbation of his mental conditions, increased substance use and his offending. The offender took responsibility for his actions. 2. Mr Bittner was born in Uruguay and immigrated to Australia with his family when he was 15 years old. He has one sister and one brother who died in 1998. He said that losing his brother to suicide was very overwhelming at the time. Mr Bittner's mother died 9 years ago, and he is now close to his father. His parents often fought when he was growing up and separated when he was about 20 years of age. His family experienced financial difficulty and lost their house. His father was short-tempered and aggressive, and would often hit him and his brother. The offender commented that now that he was older, he had forgiven his father for the way he negatively treated him growing up. The offender also stated that he was sexually assaulted as a child by a stranger and was very traumatised by this event. He stated that he often has invasive memories of this assault. 3. Mr Bittner was married at 21 years of age and stayed married for about 30 years. The couple separated about 7 years ago. He had two children from this marriage, but his son committed suicide two years ago, in February 2018. His daughter was very traumatised after finding her brother hanging in a tree. The offender stated that on release he wanted to concentrate on supporting his daughter and her two children, as he felt he had let her down. After his son's suicide, he started frequently going out gambling and drinking, both to excess. 4. As part of the assessment, the offender's sister was interviewed. She confirmed what the offender said about his parents and brother. She said that the offender was very close to his mother, and that when she was dying, he was at her bedside every day. She stated that she believes the offender is genuinely remorseful for the offending. 5. The offender left high school after year 10 and began working in a factory. He has worked mostly as a labourer for the past 30 years. He has never undertaken any formal qualifications, as he has poor literacy and difficulties focusing. The offender stated that he intended to return to the construction industry on his release from incarceration. 6. The offender said that he started consuming alcohol after he separated from his wife about 7 years ago. He initially drank a small amount, once every few weeks. After his son suicided, his consumption escalated to drinking to excess about three times a week. He first tried cocaine about four years ago. After his son died, his consumption escalated and he often consumed it at home by himself. He stated that it helped him to forget his problems and made him feel less depressed. He has not consumed any cocaine since the offending. 7. Mr Ballardie diagnosed the offender with Depression, Anxiety, negative and persisting thoughts, low self-esteem, Drug Use Disorder and ADHD. Mr Bittner said that he saw his general practitioner after his son suicided and was given antidepressants, which he took for 5 months. However, he stated that they made him feel more depressed and he has not taken any psychotropic medication since that date. He has attended a drug and alcohol course whilst incarcerated. 8. When discussing the circumstances of the offence, the offender stated that it was a very negative time in his life and he felt that he was in a downward spiral. He had lost his son to suicide, started drinking and taking cocaine to excess, gambled often, had borrowed money from a friend which he had gambled away and was experiencing lower back problems. He met someone who offered him money to pick up the cocaine, which he agreed to do. He stated that he had sold drugs in order to feed his drug addiction and gambling problems. When asked about his offending behaviour, Mr Bittner said "it was the biggest mistake of my life… I should have just said no to picking up the drugs. I really messed up… I just wish now I could be there more for my daughter." I am of the view that Mr Bittner's comments and attitudes are consistent with someone who has taken responsibility for his actions. Mr Ballardie accessed the offender at a low risk of reoffending. He also considers that the offender would suffer prison hardship over and above the ordinary hardship experienced by inmates due to his psychiatric conditions. Exhibit 3 1. Ms Ruiz, the offender's sister, stated that as a young man Mr Bittner would hand over his entire wage to assist his family when they were in financial hardship. He always displayed a sense of responsibility towards his family. Since his arrest, their father's health has deteriorated physically and mentally. She stated that the offender suffered immensely from his son's loss, and she believes that the lack of formal intervention to assist with addressing his grief caused him to act out of character. Since his incarceration, he has been able to open up about his emotions and actions. He has expressed remorse and apologised on several occasions for the strain and stress he has placed on his family. He is aware of his mistakes and she believes that he would never do what he did again. 2. Ms Alejandra Bittner, the offender's daughter, stated that her father's time in custody has been heartbreaking. She stated that when she visited him, he expressed how sorry and embarrassed he is for what he has done. 3. Ms Sandra Bittner, the offender's ex-partner, stated that he is devoted to his children and grandchildren and that after their son's suicide, he has not been the same person. She stated that the offender is a good man who shows genuine remorse and she believes that he will not re-offend. Offender's evidence 1. 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 Ballardi. 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. Objective Seriousness 1. 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 Martellota 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. 1. 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. 2. 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. Motivation 1. The Crown submits that substantial financial reward flowed to the offender in his position, which can be inferred from the quantity of cash the offender possessed at his home (in excess of $200,000 Australian dollars), despite the fact the offender was unemployed at the time of arrest. The offender gave some evidence about that money and about how he had gambled some of it, that it was not his, that it belonged to others who were higher up in the chain. I accept this explanation on the balance of probabilities, although it is conceded by the offender, that it was the proceeds of crime. The Crown submits that this money was proceeds of the offender's own criminal dealings. I cannot make that finding beyond reasonable doubt, but I do find that this offender was motivated by greed. There is no evidence of a lavish lifestyle. Knowledge 1. The Crown submits that the offender had actual knowledge/ belief that the consignment contained a border controlled drug. The offender's knowledge, it is said, can be inferred from all of the evidence noted above, but particularly from the content of the conversations he had with his co-offenders and persons in Peru. So much so was conceded by the offender in evidence. This, it was submitted, increases the objective seriousness and the offender's moral culpability when compared to a case of recklessness and ought to form part of the court's instinctive synthesis when passing sentence. I accept that the offender had actual knowledge but I maintain the finding that I have made with respect to objective seriousness. Subjective Circumstances Deterrence and punishment s16A(2)(j), s16(2)(ja) and s 16A(2)(k) 1. Given the nature and circumstances in which the offence was committed and the conduct of the offender in committing the offence, the Crown fairly submits that punishment and general deterrence are primary sentencing considerations. The Crown submits that these considerations generally outweigh subjective circumstances. It is certainly true that general deterrence and denunciation are very important in this sentencing exercise. This is because of the difficulty in detecting such offending and the great social consequences that flow from the movement of such drugs into Australia. 2. Ms Goodwin submitted that there is no real need for specific deterrence given the less serious nature of the offending and the offender's otherwise lack of criminal antecedents, his age (59 years old), the unique circumstances facing him at the time of the offending conduct and the manner in which he was initially drafted into the offence. Significantly, Mr Ballardie assessed the offender as being of a low risk of reoffending which is uncontradicted. 3. It is conceded by Ms Goodwin, that sentencing for these types of offences must include a strong element of general deterrence. However, she says that this does not displace my discretion as the sentencing judge in how it plays out in the sentencing exercise. Rehabilitation s16A(2)(n) and remorse s16A(2)(f) 1. It was submitted by Ms Goodwin that the offender has expressed contrition to the court, his family and to Mr Ballardie, all consistent with the timing of the plea. It was submitted that the offender demonstrates a willingness to facilitate the course of justice and contrition. It was submitted that the offender's prospects of rehabilitation are good given the psychological assessment and noting the offender's contrition and remorse, his record of employment and potential for gainful employment upon his release from prison and family support. I find also that there is objective evidence in favour of his rehabilitation, in that he has been abstinent from drugs since he went into custody. I find that he has good prospects of rehabilitation on his release. Plea of guilty 16A(2)(g) 1. It is not contested that the plea of guilty was entered at the earliest opportunity and that the offender is entitled to a discount for the utilitarian value of the plea. I allow a 25% discount for this plea. Personal circumstances of accused 16A(2)(m) 1. The Crown submits that although for all intents and purposes the offender has no prior criminal history, this has less significance in drug importation offences as prior good character is something that can facilitate or assist an offender in carrying out this type of serious offending. This is because such persons are not known to authorities, and they are not subject to scrutiny when they bring drugs into the country. 2. Although it often is the case that the lack of a criminal record may have less significance for a drug trafficking offence than for some other fields of crime (R v Leroy (1984) 2 NSWLR 441), it is submitted by the offender that his very limited criminal record (at 59 years of age) would justify mitigation of his sentence. It is submitted that the reason good character is often attributed less weight in importation offences is because often those selected to play some part in the chain of drug trafficking are selected because their records and their past and their lifestyles are not such as to attract suspicion. Ms Goodwin submitted that this is not the case in the instant matter - the relative absence of criminal record played no role in the offender's involvement in the offences. 3. It was submitted by Ms Goodwin, that the offender's childhood, involving financial deprivation, domestic and sexual violence would mitigate his culpability and moderate some of the weight that otherwise may be attributed to deterrence in favour of other purposes of sentencing including rehabilitation. 4. It was further submitted that the court would find it likely that untreated ADHD, anxiety and depression played a significant role in his offending conduct (given the circumstances of the offending conduct and that the offender's mental health issues negatively impacted on his capacity to exercise sound judgment). I would add to that his literacy issues and his need for sexual assault counselling. This is relevant to the following: 1. It could reduce his moral culpability (and consequently the need to denounce the crime); 2. It renders him a less appropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed; 3. It means that a custodial sentence would weigh more heavily him; and 4. It may reduce the significance of specific deterrence. 1. 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 v Millwood [2012] NSWCCA 2 by Simpson J which is well known, and which I will not repeat here. His disadvantage does not, however, exculpate him. Hardship 1. It is submitted by the offender that he will suffer some hardship in prison given his psychological conditions and noting their impact as reported by Mr Ballardie. If a custodial sentence is required but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case by suspending the sentence of imprisonment, shortening the term of sentence and/or reducing the non-parole period (Dipangkear v R [2010] NSWCCA 156 at [34]; R v MacLeod [2013] NSWCCA 108 at [49]). Each case will depend on the seriousness of the crime, whether there is a need for deterrence and the nature and degree of the impact of the sentence upon the third person. I acknowledge the hardship, but I am not prepared to find it extraordinary. Time in custody 1. The offender has been in custody since he was arrested on 8 January 2019. Parity 1. The doctrine of parity is well known. It is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike. 2. 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. Offence of the Schedule 16BA 1. It is submitted that the offence being dealt with on the 16BA Crimes Act schedule, being a category of lesser serious offence (indicated by its maximum penalty of 3 years imprisonment), albeit for a significant sum of money, would not justify a significant increase in penalty for the offence. The guideline judgment of Spigelman CJ in Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 is not directly applicable to Commonwealth sentences, but due to the similar statutory regimes it is nonetheless a useful starting point when imposing a Commonwealth sentence (Le v R [2017] NSWCCA 26 at [49]). When sentencing an offender for a primary offence, where a second offence is to be taken into account on a Form 1 (or 16BA schedule), the following principles apply: 1. the focus is on sentencing for the primary offence; 2. greater weight is given to personal deterrence and retribution limited by the maximum penalty for the primary offence and the principle of totality; 3. 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 4. the penalty for the Form 1 (or 16BA schedule) offence may but need not be quantified. 1. I also note that I have looked at a considerable number of what are said to be comparable cases and statistics, although I observe that they are "blunt tools". Totality 1. I must consider both the State matter and the Commonwealth offence. There is no nexus between the offences save as to timing. Each will require separate consideration and, perhaps, partial accumulation, bearing in mind the principles of totality and the process of instinctive synthesis that must be bought to the sentencing exercise. 2. It is submitted by Ms Goodwin that in this case the features in respect to each count do not warrant any significant measure of accumulation given that they were essentially committed in the one ongoing period of offending conduct and there is an unlimited sentencing scope in relation to the primary offence. If the court does decide to accumulate some of the sentences, then it must be done in a way so as to not result in an overall manifestly excessive head sentence (and thereby offend the totality principle) (Pearce v The Queen (1998) 194 CLR 610). 3. Mr Kanagasabapathy said that it would be appropriate to deal with the State offence pursuant to section 10A of the Crimes (Sentencing Procedure) Act 1999 (the Sentencing Act). Covid-19 1. The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence. 2. Correctives NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. These conditions include suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, will necessarily negatively impact the quality of life enjoyed by the offender. 3. I note also that it must be much more difficult to social distance in the custodial environment than it is outside of the custodial environment. The impact of COVID‑19, even taking into account exhibit 4, is very difficult to quantify with any degree of specificity. However, I take the pandemic into account as a matter to synthesis on sentence. Commonwealth sentencing provisions 1. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and Part 1B is not intended to operate as a code. 2. Pursuant to section 16A(1) of the Crimes Act, any sentence that I impose must be of a severity appropriate in all circumstances. In doing so, I have had regard to all the matters referred to above, including those contained in section 16A(2) of that Act as are relevant and known to court. I have also been guided by the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51] and have had regard to the general principles identified by the High Court in Power v R [1974] HCA 26. 3. In Hill v the Queen; Jones v the Queen [2010] HCA 45, the High Court made clear that a sentencing judge should, in Commonwealth matters, determine the minimum term to be served in accordance with Part 1B of the Crimes Act, together with the application of principles identified in Power v The Queen (1974) 131 CLR 623. 4. Where the sentence of imprisonment imposed is more than 3 years, the Court must fix a single non-parole period s19AB. In this instance, a sentence of imprisonment with a fixed non-parole period would be appropriate. 5. Having regard to section 17A(1) of the Crimes Act, and after having considered all other available sentences, I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances of this case. 6. In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is life imprisonment, and the fact that there is no standard non-parole period for this offence. 7. After applying a 25% discount for your plea of guilty and taking into account the matter on the Schedule, I impose a head sentence of 6 years, 9 months. Without the 25% discount, I would have imposed a sentence of 9 years. The sentence is backdated to commence on 8 January 2019, the date on which you were taken into custody. I impose a non-parole period of 4 years. The non-parole period expires on 7 January 2023. The head sentence expires on 7 October 2025. NSW sentencing provisions 1. I have taken into account the various purposes of sentencing under s3A of the Sentencing Act. They include ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community. As always, the facts and circumstances of the present offence and this offender highlight how the various purposes of sentencing pull in competing directions – especially given in my opinion the offender's need for psychiatric review and ongoing rehabilitation, the former of which weighs heavily upon me in this sentencing exercise for this offence. 2. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476–477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) [at 476] in applying them. 1. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty and the standard non-parole period and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25). 2. In determining an appropriate sentence I have kept in mind the maximum penalty of 2 years and I note your plea of guilty. In my opinion, the section 5 threshold has not been crossed, and I am not satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. In my opinion, your moral culpability for the particular offence was diminished so that an order under s10A of the Sentencing Act is appropriate. Orders 1. Mr Bittner, please stand. Commonwealth 1. You are convicted of the offence 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). Taking into account, the matter on the s 16BA schedule, I impose a sentence of imprisonment of 6 years 9 months, with a non-parole period of 4 years. NSW 1. You are convicted of possess prohibited drug contrary to s 10(1) of the Drug Misuse and Trafficking Act. Pursuant to Section 10A of the Sentencing Act, I find it expedient to impose no further penalty. Judgment Daniel Martinez 1. Daniel Gerado Martinez, born in January 1966, is before the court for sentence for aid, abet, counsel or procure the commission of an offence, namely 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). 2. The agreed facts for both offenders are set out in paragraph 3 of this judgment. Evidence 1. Before me are 4 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. Court attendance notice; 2. Statement of agreed facts; 3. Criminal History; 4. Crown Submissions on Sentence; and 5. Comparative Sentencing Schedule. 1. Exhibit 2 is a bundle of documents prepared on behalf of the offender which includes: 1. Psychologist report of Megan Godbee, dated 16 October 2019; 2. Character references from: 1. Mohamed Beydoun, dated 24 August 2019; 2. Paul Tolomeo, dated 7 September 2019; 3. Leo Delgado, dated 1 October 2019; 4. Daniel Garcia, dated 1 October 2019; 5. Gustavo Martinez, dated 27 November 2019; 6. Sam Ayyash, undated; and 1. Case notes from Corrective Services. 1. Exhibit 3 is a Sentencing Assessment Report (SAR) prepared by Mr Christopher Baker, dated 26 February 2020. 2. Exhibit 4 are two documents related to COVID-19, and the impact on New South Wales' prisoners. The first is from the Kirby Institute at the University of New South Wales under the hand of Professors Butler, McIntyre and Levi, and Dr Paul Simpson, dated 16 April 2020. The second document is from forensic psychiatrist Dr Andrew Ellis, dated 9 April 2020. Exhibit 1 1. The offender has no criminal history whatsoever. Exhibit 2 1. Ms Godbee interviewed the offender via Audio Visual Link (AVL) for approximately 1.5 hours. Mr Martinez presented as polite and attentive. The offender was born in Uruguay and migrated to Sydney with his family when he was 8 years old. His parents have always had a positive relationship. When the offender was 16 years old, his father suffered a heart attack and was unable to work. Mr Martinez left school to support his family. His father currently has both Parkinson's Disease and dementia. At the time of the offence, Mr Martinez worked in sales. He told Ms Godbee that he has several offers to return to similar work upon release. 2. The offender was diagnosed with Type II diabetes 15 years ago. Shortly after he entered prison, a combination of Diabetes and high blood pressure led to ruptured vessels in both eyes, which required surgery to repair. He continues to experience vision problems. He is currently monitoring his sugar levels, taking medication for diabetes and blood pressure and attempting to manage his sugar intake. The offender was diagnosed with a mild scoliosis approximately 12 years ago, and indicated his back was causing him pain. He also stated he was in a series of accidents in his teens, and fractured his ribs after being hit by a car. He denied any history of head injuries or neurological concerns. 3. Mr Martinez first consumed alcohol at age 17 and estimated he has been intoxicated on less than 5 occasions in his life. He tried ecstasy, methamphetamine (speed) and cocaine in his 30s. He denied any regular use of substances other than cigarettes. The offender got married at age 21 and had two children, but the relationship was "never good" and his wife had mental health difficulties, eventually leading to their separation. He indicated that he raised his children alone, with the help of his parents. He continues to have a close relationship with both of his children. He remarried and has a 13-year-old son and 10-year-old daughter with his new wife. 4. The offender stated that he pleaded guilty because he had "turned a blind eye" to their (the co-offenders) illegal behaviour and that he was "naïve" and gave in to "peer pressure." He also stated that he did not want his friends to get arrested. When asked how he would avoid future offending of this nature, he stated that he would contact the police if he had any concerns that people he knew were importing drugs. 5. Ms Godbee is of the opinion that Mr Martinez presented as somewhat grandiose, viewing himself very positively. She hypothesised that his grandiosity contributed to his offending in the sense that being liked by others and being in control of his business are very important to his self-identity. 6. Mr Beydoun worked professionally with the offender for approximately 10 years. He stated that the offender has a strong work ethic and is dedicated to his family and children. Mr Tolomeo stated that the offender is a wholesome family man and is highly regarded in his community. He stated that Mr Martinez conducts his business with thoughtfulness and integrity. He said that the offending was out of character and that the offender has deep remorse and that his family has suffered extraordinary loss and sufferance. Finally, he stated that the offender will have much support from his family and friends to help him integrate back into the community. Mr Delgado stated that these charges are not in alignment with the offender's character. He is well-liked by all and a bad word is never spoken about him. Mr Garcia stated that the offender is very remorseful, scared and extremely concerned about the wellbeing of his family. He understands the gravity of his mistakes and has never blamed anyone but himself. Mr Gustavo Martinez, the brother of the offender, stated that prior to his arrest, the offender had never broken the law and was of good character. He stated that the offender regrets his decision and that you can "see the sadness in his eyes and the toll that this experience has taken on him." Mr Ayyash stated that he would be willing to employ the offender once he has been released. Exhibit 3 1. The SAR states that Mr Martinez is married and has four children, all of whom he has a good relationship with. The offender commented that although he was just helping two workmates, not informing the authorities of the criminal behaviour was the biggest mistake of his life. He added that the impact on his family had been great and included losing his house and ongoing financial hardship. The offender commented that he can now see the problems caused by illicit drug use and the way that drugs can ruin lives. Mr Martinez was assessed at a low risk of reoffending according to the Level-Service Inventory – Revised, which is not in dispute. 2. The case notes from Corrective Services note that Mr Martinez is the head sweeper which is well-known to be a very responsible position in a custodial environment and he is always polite and follows instructions, stays out of trouble, and it also notes that he has had some significant issues with his eyes as set out in the history provided to others. Offenders' Evidence 1. On 24 January 2020 the offender gave evidence before me. He stated that he had nothing to do with arranging for the consignment to be delivered to the Simco premises, and that he was never asked for, nor gave permission for the delivery. He did not know the quantity or value of the drugs, he had no personal interest and never exercised any physical control over the drugs. The offender stated that he was offered $1,000 to assist, but that he did not want nor need it, and he never received that money. 2. I was referred today by Mr McCallum to some responses that the offender gave in evidence before me which were not really challenged, one being that it was not his intention to be involved. He said he was responsible for his actions but: "I was fearing that it was going to effect, if this parcel was intercepted, that it would bring my workplace and it would take the company that I'd worked for and I thought, I thought I was going to be in trouble but my actions were terrible the day and I take responsibility". 1. As to whether or not he was going to take the money, he said he was not. When put to him that $1,000 was something that was not very much, or little pay off for something so serious, he said he was not offered a big payoff. He said: "I didn't want a big payoff, I didn't want to bring these drugs into the country. It was not my intention. I made a bad choice and the reason I made this choice at the time was I didn't know how to act. Do I call the authorities, get my friends in trouble? They've got families too. The workplace will be tainted, or do I just turn a blind eye and, you know, just let this happen, you know, this is, I just didn't know how to think, but my reasons were not making money. I had a great job, I was doing well, I was on a good wage." 1. In my opinion, the offender gave evidence candidly and credibly and I accept those explanations on the balance of probabilities. The offender also admitted to all the communications in the agreed facts between himself and his co-offenders. 2. The offender recounted the hardship that the offending has caused his family, who have lost their house as they could not pay for the mortgage with him in gaol. They now live in rented accommodation. Mr Martinez stated that "I feel terrible. I feel embarrassed, I feel ashamed. I've caused a massive trauma to my wife and kids. Losing the family home and being tainted with this charge". He stated that he feels very badly for his children and that when they visit him, all he can see is their suffering. They have had to go to counselling because of all the anxiety he has caused. His father is 85 and his mother is 81. His father is in ill health as he suffers from Parkinson's and dementia. The offender is worried that his father will die while he is in gaol. He and one of his brothers used to share responsibility for taking care of his father, but now his brother does it alone. The offender stated that he wishes he could be there for his father, and is sad about the time he has lost with him. The offender stated that when he first came to custody, his blood pressure was so high that vessels burst in the back of his eyes and he started to go blind. He was in hospital for 21 days and has lost part of his vision. 3. Mr Martinez currently works as head sweeper in gaol and is a trusted prisoner. He stated that when he is released he will go back to sales and will never take anything for granted. He has gained an understanding of the impact of drugs and what they can do to families. He sees people with drug addictions every day in gaol and says that those people have no life. When asked how he feels about his involvement, the offender stated "I feel embarrassed, ashamed, I feel terrible. I've lost so much and I'm still losing so much, and I feel bad because I've done wrong by the community." The offender stated that it wasn't his intention to get involved, but that he put his hand up and is responsible for his actions. He was worried if the parcel was intercepted it would bring down his workplace and his company. 4. In cross-examination, the offender conceded that he was more involved than simply "turning a blind eye." He admitted to actively passing on messages, and continuing to communicate even after the consignment was delivered. He stated that he originally denied all knowledge to the police, as he was in "total shock" when he was arrested, but after they showed him videos of all the evidence they had, he told them everything he knew. He admitted that he could have notified the authorities at any point. When he first was told about the offence by Mr Martellotta, he stated that he tried to convince him not to go through with it. 5. As I have said, I found that the offender was a witness who gave his evidence in an honest way before me, to the extent that it is possible to make such a determination on the basis of demeanour. He was candid in particular to questions in cross-examination which is to his credit. Objective seriousness The role of the offender 1. The Crown submits that the while offender was relatively low in the hierarchy, he played an important role that encompassed involvement both prior to and after the delivery of the consignment. 2. Mr McCallum submitted that the differentiation in the charge preferred against this offender from each of the co-offenders (attempted possession) reflects the fact that this offender never intended to exercise any control over the substance either alone or jointly with any of the co-offenders. He was not complicit in any intention any of the co-offenders may have had to exercise control over it, or their purpose for doing so. Mr McCallum submits that the acts and conduct of this offender that constitute his aiding and abetting are limited to: 1. Allowing or acquiescing for the Simco premises to be used for the delivery of the consignment after he had been informed by Martellotta that the consignment was likely to arrive while the business was closed for the Christmas period; and 2. Facilitating communication between Martellotta and Bittner on 2 occasions (31/12/18 and 8/1/19) following delivery of the consignment on 31/12/18. 1. Mr McCallum said that at all times this offender was subordinate to and acting on the instructions of others. The offender was not involved in arranging for the consignment to be delivered to the Simco premises. He was not asked in advance and did not give his permission for the consignment to be delivered to the Simco premises. His participation only commenced after those arrangements had been made by others. I agree with the substance of these submissions, that the offender's participation only commenced after arrangement had been made by others with respect to the cocaine. Knowledge 1. The Crown submits that the offender accepted in interview that he had actual knowledge that the consignment contained a border controlled drug, but not the quantity. He submits that this increases the objective seriousness of the offender's moral culpability when compared to cases of recklessness. It is the case that the offender did accept at interview that he knew that the consignment contained a border controlled drug. Motivation 1. The Crown submits that the "common sense" inference is that the offender was involved for profit and that the objective seriousness of the offence is greater when committed for financial reward. I find that financial reward is not proved beyond reasonable doubt and I reject this submission. 2. Mr McCallum submits that although this offender was offered $1,000 for his assistance in facilitating the delivery of the consignment, it does not follow that his participation in the offences was motivated by financial reward. The psychologist's formulation was that this offender presents as an inherently prosocial person whose offending was precipitated by his desire to be liked by others and concern that his employer's business might be affected by the drug delivery should be adopted. I accept that formulation. 3. This offender, I find, was a reluctant participant. It was not his intention to get involved. His first response was to attempt to dissuade Martellotta from continuing with the offence when told of Martellotta's involvement in it. He frankly acknowledged that he could have informed the police about the consignment rather than agreeing to assist in facilitating its delivery, but felt conflicted by not wanting to assist bringing drugs into the country on the one hand and not wanting to get his friends into trouble on the other. The correct response in those circumstances would have been to go to the police, which is a proposition that I am satisfied that Mr Martinez now understands. 4. It is submitted by Mr McCallum that the objective seriousness falls very much towards the lower end of the range, particularly having regard to his role and motivation. The Crown disagrees with that proposition. It is very difficult to know what the offender's role was except to say that at some two occasions he passed on some messages from his co-offenders to the other. In my opinion, taking into account that the maximum penalty for this offence is life imprisonment, and that there is no non-parole period, I find that the objective seriousness falls at the lower end of the range, having regard to his role and his motivation for offending. Subjective Circumstance Deterrence and punishment s16A(2)(j), s16(2)(ja) and s 16A(2)(k) 1. The Crown submits that punishment and general deterrence are the primary sentencing considerations. I agree. The Crown submits that these considerations generally outweigh subjective circumstances. This is largely because of the difficulty in detecting offending and the significant social consequences that flow from the movement of such drugs into Australia. Rehabilitation s16A(2)(n) and remorse s16A(2)(f) 1. The offender has shown a considerable amount of remorse, stating that he now understands the destructive effect on drugs and what they can do to a family. He also unequivocally accepts responsibility for his actions. 2. Having regard to the offender's age, character and antecedents together with the absence of any criminogenic risk factors that require intervention it is submitted by Mr McCallum that this offender must be assessed as having excellent prospects for rehabilitation, and I so find. Plea of guilty 16A(2)(g) 1. It is not contested that the plea of guilty was entered at the earliest opportunity and that the offender is entitled to a discount for the utilitarian value of the plea. I allow a 25% discount for this plea. Personal circumstances of accused 16A(2)(m) 1. The offender has no previous convictions. This is not a charge of a drug importation, and consequently the offender's prior good character had no bearing whatsoever on this offending. Therefore, the offender is entitled to some leniency. 2. With respect to medical issues, the offender suffers Type II Diabetes and high blood pressure. He suffered ruptured vessels in both eyes following his admission to custody, which required surgical intervention and resulted in partial loss of vision in the right eye. Time in custody 1. The offender has been in custody since he was arrested on 8 January 2019 and it is appropriate to backdate the sentence to that date. Parity 1. The doctrine of parity is well known. It is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike. 2. The sentence imposed on Martellotta was 6 years imprisonment, with a non-parole period of 4 years. I have imposed a sentence of imprisonment of six years nine months and a non‑parole period of 4 years noting different subjective circumstances, with respect to Mr Bittner. Mr Martinez's offending is clearly lower in the hierarchy by some significant degree than Mr Martelotta or Mr Bittner. 3. It is submitted by Mr McCallum that this offender's role and culpability are clearly differentiable from both co-offenders. The most obvious point of distinction, it is submitted, must be the different formulation of the charge against him. It follows that it is incontrovertible that this offender never intended to exercise any control over the drugs either alone or jointly with any of the co-offenders. I agree. 4. In all of the circumstances of this case, it is submitted that that factor substantially differentiates this offender's culpability from that of his co-offenders. Again, together with all of the other circumstances of this case, it is submitted that the result should be a sentence that is substantially less than the sentence imposed on Martellotta and on Bittner. Covid-19 1. The court accepts that the existence of the pandemic is relevant to the assessment of an appropriate sentence. 2. Correctives NSW has imposed a number of protective measures to prevent and isolate any outbreak of Covid-19 amongst the prison population. These conditions include suspending visits to inmates, restricting travel between and within correctional facilities, and restricting access to social activities. These measures, though designed to protect inmates against contracting the virus, will necessarily negatively impact the quality of life enjoyed by the offender. However, the impact is difficult to quantify with any degree of specificity. I take the pandemic into account as a matter to synthesise on sentence. Commonwealth sentencing provisions 1. In sentencing an offender, the court is required to have regard to the matters set out in Part 1B of the Crimes Act 1914 which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the court must have regard to the matters set out in Section 16A. Part 1B is not intended to cover the field and Part 1B is not intended to operate as a code. 2. Pursuant to section 16A(1) of the Act, any sentence that I impose must be of a severity appropriate in all circumstances. In doing so, I have had regard to all the matters referred to above, including those contained in section 16A(2) of the Act as are relevant and known to court. I have also been guided by the approach of McHugh J in Markarian v The Queen [2005] HCA 25 at [51] and have had regard to the general principles identified by the High Court in Power v R [1974] HCA 26. Sentence 1. I have taken into account the provisions of section 16A(1) and (2) of the Crimes Act referred to earlier in this sentence. 2. Having regard to section 17A(1) of the Crimes Act, and after having considered all other available sentences, I am satisfied that no penalty other than imprisonment is appropriate in all of the circumstances of this case. 3. In Hill v the Queen; Jones v the Queen [2010] HCA 45, the High Court made clear that a sentencing judge should, in Commonwealth matters, determine the minimum term to be served in accordance with Part 1B of the Crimes Act, together with the application of principles identified in Power v The Queen (1974) 131 CLR 623. 4. In determining an appropriate sentence, I have kept in mind the legislative guidepost of the maximum penalty, which is life imprisonment, and the fact that there is no standard non-parole period for this offence. 5. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, allowing for a discount of 25%, I sentence Mr Martinez to a term of 2 years, 6 months. Without the 25% discount, I would have imposed a sentence of 3 years and 4 months. The offence is backdated to 8 January 2019. The offender is to be released on 7 June 2021 upon entering into a recognisance in the sum of $500 without surety, with a further condition that he be of good behaviour for the period of the recognisance order until 7 July 2022. Orders 1. Mr Martinez, please stand. 2. You are convicted of the offence of aid, abet, counsel or procure the commission of an offence, namely 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). 3. After applying a 25% discount for your plea of guilty, I impose a sentence of imprisonment of 2 years, 6 months. The offence is backdated to 8 January 2019. The offender is to be released on 7 June 2020 upon entering into a recognizance of the sum $500 without surety and a further condition of being of good behavior until 7 July 2021. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 July 2020