R v Diez

Evidence

1. Before me are 4 exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. The indictment; 2. Statement of agreed facts; 3. Criminal History; 4. Remarks on Sentence - Daniel Martellotta (28 February 2020, Sydney District Court, Townsden DCJ); and 5. R v Bittner; R v Martinez [2020] NSWDC 292.
2. Exhibit 2 is a bundle of documents prepared on behalf of the offender, which includes: 1. R v Bittner; R v Martinez [2020] NSWDC 292; 2. Report of Sam Borenstein dated 23 June 2020; 3. Affidavit of Alexander Diez dated 6 April 2020; and 4. Various medical records relating to the offender.
3. Exhibit 3 is a letter from Mr Johnny Diez dated 26 June 2020.
4. Exhibit 4 is a document titled "Corrective Services' COVID-19 Response".

Exhibit 1

1. The offender has a limited criminal history. He was charged with supply prohibited drug in 1997 and sentenced to a term of imprisonment of 5 years. The facts to which he pleaded are not in evidence. I do not consider that the offender's criminal record is an aggravating factor on sentence. Neither, however, does it assist him, and he is not entitled to leniency as if he were a first time offender.

Exhibit 2

1. Mr Borenstein interviewed the offender by way of audio link (telephone) with the assistance of a Spanish interpreter on 22 June 2020. The offender said that he was in prison 25 years ago for an offence that "was the same. I was helping out a friend. I went with him, and I was charged." Mr Diez said in this case, he was helping a friend and only became aware of the nature of the offence when he was arrested and charged. He has pleaded guilty to this offence. Mr Diez denied financial compensation for his involvement.
2. Since being in prison, Mr Diez has lost a considerable amount of weight. He expressed concern for his wife, aged 71, whom he described as "very unwell." Mr Diez is retired. He has not consumed alcohol for 25 years and does not consume illicit drugs. He suffered a cardiac arrest 15 years ago. Mr Diez has two sons aged 40 and 41, and he has three grandchildren.
3. Mr Diez said he was regularly visited by his wife and children prior to the termination of visits because of COVID-19. He now maintains contact with family members via AVL. He described his childhood as "normal but very poor". He completed the equivalent of year 10 and then worked in Colombia for 8 years before coming to Australia in 1976. He stated that upon arriving in Australia, he did not learn to speak English properly.
4. Mr Diez has never before consulted a psychologist or psychiatrist. He reported feeling burdened by guilt and depression, due to the impact of his imprisonment on his wife's health. He suffers sleep disturbance in the form of mild insomnia and early morning awakening.
5. When describing the offence, the offender stated that on 31 December 2018, at about 6 pm, he was asked by his friend Bittner to assist picking up "porcelain figures". He went to Bittner's house and saw that he had hired a car. The following day Mr Diez helped open boxes, and then on 8 January 2019 he stated that "my friend made calls in a very mysterious way." He said that he did not know what was being asked of him until he was arrested and charged by the police.
6. Mr Diez expressed fear for his safety in prison. He has lost 24 kilograms since being incarcerated. He is currently employed as a cleaner in his pod. Mr Borenstein diagnosed the offender with an Adjustment Disorder with Mixed Anxiety and Depressed Mood the aetiology of which is unclear. Mr Diez stated that he acted foolishly when he agreed to help a friend out. He denied being offered financial gain and said that he acted from a position of altruism, friendship and relative naivety. He conceded that he had not learned from his past mistake in 1997. The offender said he has now finally learned his lesson, and upon release from prison he intends to devote his remaining years to his immediate family.
7. Mr Alexander Diez, the offender's son, stated that he had visited the offender in gaol several times and that the offender has a good relationship with his extended family. He says that in 2006 the offender was admitted into hospital and had a stent put in to clear a blockage. Since then he has had to take medicine for his heart. He is concerned about the stress Mr Diez will suffer in custody. He states that his mother is dependent on his father because her English is too poor to deal with day to day matters.
8. Dr Nashed, consultant cardiologist, stated that Mr Diez is not necessarily at an increased risk of contracting COVID-19 in custody. However, he is at risk of having more serious repercussions if he does contract COVID-19, due to his heart issues. He has a background of ischaemic heart disease and had a stent put in the left anterior descending artery in 2007. He is currently on Astrix, Betaloc, Coversyl and Crestor for his heart disease.

Exhibit 4

1. Mr Johnny Diez is the eldest son of the offender. He stated that his father is a humble and noble person with incredible ethics and culture. The offender is a mentor and role model to his children and grandchildren. The offender is the primary care taker of Mr Diez Jr's mother, who has many health issues and limited movement in her left shoulder. The offender usually transports his wife as she has difficulty driving. Mr Johnny Diez said that the past 17 months have caused considerable hardship and that both his parents have been impacted physically and mentally.

The Role of the Offender

1. The Crown submits that the offender assisted Bittner to take possession of and unpack a consignment, comprising of 4 crates, which had been imported into Australia from Peru and had contained 4.339kg of pure cocaine prior to substitution of the contents by NSW Police. The consignment was addressed to a third co-offender, Martellotta at business premises where he and a fourth co-offender, Martinez were employed.
2. The Crown submits that the offender's role involved: 1. Assisting Bittner and two unknown males with the collection of the consignment from that premises on 31 December 2018, Bittner having been contacted by Martellotta and Martinez in connection with the same, with the offender driving Bittner to the premises in his own vehicle and waiting in his vehicle while Bittner and the two unknown males loaded the rented Hilux ute; 2. Assisting Bittner and the two unknown males to unload the consignment later that afternoon at Bittner's home; 3. Travelling with Bittner to Bunnings the following morning to return the Toyota Hilux utility used to collect the consignment, which had been rented by Bittner; 4. Purchasing tubs, buckets and bin liners at Bunnings which were to be used to sort through the contents of the consignment; 5. Assisting Bittner to unpack and sort through the crates on 1 January 2019 and again on 4 January 2019, the pair filming themselves on the latter date in order to prove to others in the syndicate that the drugs had been removed; 6. Being present in Bittner's residence when Bittner called Peru to report that the drugs had been stolen and discuss what had gone wrong; and 7. Having knowledge of the other members of the syndicate and their roles.
3. The Crown submits that although the offender was not the addressee for the consignment, and that the unpacking of the consignment did not occur at his premises, that does not necessarily mean that he was the least involved amongst the co-offenders. The Crown said that it is well known that involvement in the actual collection of the drugs suggests that an offender is not operating at a high level, as those at the top of such organisations do not generally expose themselves to detection at the point of collection. The Crown submits that the fact that the offender "invested" his own money in purchasing the tubs and other objects at Bunnings indicates that he had a financial interest in the recovery of the drugs concealed in the consignment.
4. It is accepted by the Crown that while physically involved with the consignment, there is no evidence of the offender being involved in organising for the package to arrive in Australia or of him being connected to a broader network with respect to the importation.
5. It is submitted by the offender that that there is no evidence that the offender had any involvement in the planning or management of the offending, for example the types of conversations that took place between Martellotta, Martinez and Bittner. Mr McMahon submits that the indication by Bittner who accidently called the offender shortly prior to their arrest, that he would "fill the [him] in later" is consistent with this proposition. It is submitted that Mr Diez's role was that of physical labourer more than anything else.
6. In my opinion, looking at the four co-offenders, it appears tolerably clear that Bittner was at the top of their hierarchy. Even he was not a principal: see my earlier judgment. Next in line came Martellotta. The Crown concedes that the criminality of Martinez and Diez is the same, taking all matters into account. I accept that proposition, notwithstanding their roles were different and occurred at different stages of the attempted importation. I found Martinez's role to be akin to a messenger. Mr Diez's role, in my opinion, was akin to Mr Bittner's labourer or assistant, although I acknowledge that finding an appropriate appellation for a person's role in a drug matter is impossible to know with any certainty in the usual case.

Knowledge

1. The Crown submits that, based on the offender's conduct, it can be inferred that he knew the consignment contained border controlled drugs on the 3 dates he assisted Bittner. In particular, Mr Jordan submits that the offender's actions in purchasing the tubs, buckets and bin liners at Bunnings suggest awareness on his part that he and Bittner were searching for something in the crates to be sorted, and that he must have communicated with Bittner about what that item would be. It is apparent, he submits, from Bittner's conversations with Martellotta on 1 January 2019, that he and the offender had discovered a problem when they opened the packages, namely that the cocaine was missing. In the conversation set out at in the agreed statement of facts, Mr Jordan says that Bittner's reference to "we" should be taken as a reference to himself and this offender, who it can be inferred was present when he made contact with "the people from over there". It is further apparent from the conversation that Bittner and the offender ceased inspecting the packages upon discovering a problem and planned to open the remaining packages with a camera on a later date, which they did on 4 January 2019.
2. On that date, the offender was present at Bittner's home when he spoke to contacts in Peru about the missing cocaine and the need to locate the DHL driver who delivered the consignment. In one of these conversations Bittner stated 'As soon as we got the boxes, I called Jorge and I called the other kid. These brothers and then when we opened the boxes the following day … so the next morning I opened them with this kid, who's a friend of mine, and we found this surprise I'm telling you about'. The Crown says that indicates awareness on the offender's part as to what was being searched for when the packages were open.
3. In particular, the Crown submits that while it is accepted that it could not be proved beyond reasonable doubt that the offender was aware of the precise quantity of the drug that was being imported, "as a matter of common sense" he certainly must have appreciated that it was a significant quantity. He says that there is circumstantial evidence of the offender having a significant degree of knowledge of the amount of drugs and packaging involved, as he was the one who purchased the tubs and other containers from Bunnings. In that regard, the Crown submits that the offender has exhibited greater knowledge than some of his co-offenders.
4. It was submitted by Mr McMahon that there is no evidence that the offender knew that the crates in question contained drugs, although he accepts that the circumstances as they present themselves establish that he was reckless. There is no evidence that he would have had such a state of mind prior to being involved by Bittner and likely confronted with the contents of the first two crates on the 4 January 2019. Further, it is submitted that there is no evidence that he understood the conversations that occurred.
5. I agree with the submissions of Mr McMahon. I find that the Crown has not established knowledge beyond reasonable doubt until he was confronted with the contents of the consignment on 4 January 2019. Prior to that date, on the balance of probabilities, I find that he was reckless.

Motivation

1. The Crown submits, consistent with the principles set out in R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [9], that the 'common sense' inference that the offender was involved for profit should be drawn, unless there is specific evidence to the contrary. Mr Jordan says that there is no evidence to the contrary in this matter. The value of the drug is relevant to the commerciality of the offending and the likely motivation for the offending.
2. Mr McMahon submits that there is no evidence of any financial reward being given or offered to this offender and that the offender denies that such was the case. Given the longstanding friendship between the offender and Bittner, he says that it is not implausible and it cannot be established beyond a reasonable doubt that the offender was financially motivated. In this matter, there is no evidence of the offender's involvement prior to 31 December 2018. There is no evidence of lavish lifestyle. The evidence is consistent with a friend, albeit a foolish and misguided one, helping another friend out of a twisted sense of loyalty. I find that financial reward has not been proved beyond reasonable doubt and I reject the Crown's submission.
3. Taking into account the maximum penalty of life imprisonment as a yardstick, the fact that Diez's role was unsophisticated, and the other matters already mentioned, in my opinion the objective gravity of the offending lies somewhere between the low and mid-range.

Deterrence and Punishment s16A(2)(j), s16(2)(ja) and s 16A(2)(k)

1. It is submitted by the Crown that principles of general deterrence and denunciation are prime considerations in sentencing for such matters. He says that these considerations will generally outweigh subjective circumstances, particularly in the determination of the total sentence. 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 and their distribution within Australia. This is so. The scourge of drugs prevalent in our community is caused by those who import them and requires denunciation.
2. The Crown further submits that those who are involved at any level in the importation of border controlled substances into Australia should know that they run the risk of incurring a substantial sentence if they are apprehended. I agree that even if an offender's role is limited, general deterrence is nonetheless fundamental, as illicit drug organisations are only able to prosper because people are ready, willing and able to undertake these types of roles.

Rehabilitation s16A(2)(n) and Remorse s16A(2)(f)

1. The Crown submits that there is very little, if any, evidence of remorse, contrition or prospects of rehabilitation.
2. Mr McMahon submits that the offender demonstrates insight into his offending. In his interview with Mr Borenstein, the offender stated that he had learnt from past mistakes, and upon release would devote his time to his family, as well as distancing himself from his previous social ties. Mr McMahon further submits that when there has been a long gap between an older offence and the present offending, that the gap itself may provide a basis for inferring that the offender has reasonable prospects of rehabilitation: see Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21 at [288]. Here the gap between the actual commission of that offence and the commission of this offence is appropriately 20 years.
3. There is little evidence of the offender's remorse, although I take into account his plea and his comments to Mr Borenstein. I am satisfied that he is regretful for the position he finds himself in. As to his prospects of rehabilitation, it is not a case where the offender is irredeemable. On the other hand, he offended at 70 years of age. I find that he has some reasonable prospects of rehabilitation.

Plea of Guilty 16A(2)(g)

1. The offender pleaded guilty at a relatively late stage, the matter having been committed for trial on 25 September 2019 and listed for a 3-week trial on 27 July 2020. Albeit late, the Crown accepts that the offender's plea indicates some willingness to facilitate the course of justice, and that he is also entitled to a reduced discount in light of its utilitarian value. The Crown agrees that in the current COVID-19 environment, and the offender's right to a jury trial, this being a Commonwealth matter, the plea has additional utilitarian value. The parties noted that Culver DCJ had marked the file as such.
2. I find that Mr Diez's plea of guilty has some real utilitarian value especially in current circumstances where there are substantial stresses on the court's capacity to conduct jury trials. I allow a 15% discount for his plea, which the parties agreed was within a range available to me.

Personal Circumstances of Accused 16A(2)(m)

1. The offender is a 72 year old man. He immigrated to Australia with his wife in 1976. English is not his first language and he requires the assistance of a Spanish interpreter for anything beyond basic communication. In custody he works as a cleaner, which I take judicial notice is a trusted position. There is no evidence before the court that the offender had an income other than his pension. His wife, who is now 71 years of age, is not well and has a history of heart disease and recent shoulder surgery. Mr Diez has several medical issues. He has not been sleeping properly since being in custody, and has lost a considerable amount of weight. Mr Borenstein suggests that the offender is in need of some treatment for anxiety and depression (in the form of an Adjustment Disorder).
2. The offender has a previous conviction for drug-related offending and has served a sentence of imprisonment in relation on to that offending. His criminal antecedents disentitle him to leniency, and, while there appears to have been a significant gap in offending, in my opinion specific deterrence has some role to play.

Time in Custody

1. The offender has served almost 18 months on remand since his arrest. He was taken into custody on 8 January 2019. I will 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; [2011] HCA 49 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 Martellotta, but he did not have the benefit of hearing from Bittner. I imposed a sentence of imprisonment of 6 years, 9 months and a non‑parole period of 4 years on Bittner. I found that he was the top of this particular hierarchy, even though he was not a principal. However I found that Bittner had significantly different subjective circumstances to Martellotta which affected his sentence. I imposed a sentence of 2 years, 6 months for Martinez who gave evidence before me, unlike Diez, and who also had significantly different subjective circumstances than the offender before me today. His role was also very different to that of Diez, he had no prior criminal history and I found him to be extremely remorseful, with excellent prospects of rehabilitation. The Crown does not suggest that the criminality of Diez was greater than that of Martinez. However his role and other subjective matters, in my opinion, were different. Those disparities will be reflected in this sentence.

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.
3. Specific evidence was tendered by Dr Nashed about Mr Diez's specific risk factors. Due to his age and heart conditions, the offender is at a greater risk of a negative outcome if he were to contract COVID-19. So much is accepted. However, as Mr Jordan submitted, his risk of a negative outcome is the same in custody or out of custody. I accept this submission.

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) 228 CLR 357; [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 R (1974) 131 CLR 623; [1974] HCA 26.
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. 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.
6. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, allowing for a discount of 15%, I sentence Mr Diez to a term of imprisonment of 3 years, 4 months and 24 days. Without the 15% discount, I would have imposed a sentence of 4 years. The offence is backdated to 8 January 2019. I impose a non-parole period of 2 years and 1 month. The non-parole period expires on 7 February 2021. The head sentence expires on 31 May 2022.

Orders

1. Mr Diez, please stand.
2. You are 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).
3. I sentence you to a term of imprisonment, after allowing a 15% discount for your plea of guilty, of 3 years, 4 months and 24 days, with a non-parole period of 2 years and 1 month.
4. I have backdated your sentence to 8 January 2019.
5. You will be eligible for release on parole on 7 February 2021.
6. Your head sentence will expire on 31 May 2022.
7. Mr Diez, do you understand the orders I have made?

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