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)