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Martellotta v The Queen [2021] NSWCCA 168

The offender was sentenced following trial of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug contrary to ss 307.5(1) and 11.1(1) of the Commonwealth Criminal Code. The offence related to 4.34kg of pure cocaine. Original sentence imposed 6 years imprisonment with a 4 year non-parole period. The offender appealed on the basis that they had a justifiable sense of grievance regarding the sentence imposed in comparison with that of a co-offender.   Parity: A parity ground does not afford an offender an opportunity to imougn the sentencing judgment of a co-offender by alleging error in the sentencing judgment for a co-offender. A parity ground is to be resolved by reference to comparison between sentence imposed on offender and sentence imposed on co-offender. A question arises as to whether the two sentences can be explained by reference to the different material before each sentencing judge. All that can sensibly be concluded by the respective descriptions as to objective seriousness is that the objective seriousness of co-offender’s offending was greater than that of the offender because their role in the offending conduct was greater. Effect of co-offender’s subjective circumstances reduced their moral culpability. The offender’s difficulties arose from the vicissitudes of adult life, whereas those of the co-offender arose from childhood experiences. The reasons of the sentencing judges are sufficient to explain the respective sentences imposed.   Leave to appeal granted. Appeal dismissed.
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