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District Court 19 July 2019

R v Hannachi; R v Chamon

[2019] NSWDC 911

DrugsFraud & dishonesty
HANNACHI CRIME SENTENCE MDMA KNOWINGLY DEAL WITH PROCEEDS OF CRIME TOTALITY OF OFFENDING IN CHARGE OF STREET LEVEL DEALERS

Citation: R v Hannachi; R v Chamon [2019] NSWDC 911
Court: District Court of New South Wales
Date: 19 July 2019
Judge(s): Norrish QC DCJ

Background

Two accused, Hannachi and Chamon, appeared before the District Court as part of a larger group of offenders connected through a drug supply network operating in the Surry Hills, Pyrmont, and Darlinghurst areas of Sydney. Both men were foreign nationals and entered pleas of guilty to a range of offences. The remaining co-accused were to be sentenced separately at a later date.

Hannachi faced four principal charges, including two counts of supplying or taking part in the supply of MDMA at commercial quantities under the Drug Misuse and Trafficking Act 1985, as well as supplying LSD and knowingly dealing with the proceeds of crime. He was also in breach of good behaviour bonds at the time of offending. His criminal conduct was found to span a period beginning in late November or December 2017.

Chamon faced three principal charges: knowingly dealing with proceeds of crime (involving $163,235 in cash found on him at arrest), participating in a criminal group, and supplying MDMA. Two further supply charges were taken into account on a Form 1. His involvement was found to have commenced later than Hannachi's, from around late January 2018, and the court noted that he had been overseas for part of the relevant period.

  • What aggregate sentences were appropriate for each offender, having regard to the totality of their respective offending?
  • How should parity between co-offenders be balanced against the differences in their individual charges, maximum penalties, and roles?
  • Whether special circumstances existed under s 44 of the Crimes (Sentencing Procedure) Act 1999 to justify a longer-than-standard ratio of parole to non-parole period?
  • What weight should be given to factors including prior good character (Chamon), breach of good behaviour bonds (Hannachi), foreign nationality, and distance from family support?

Decision

The court imposed an aggregate sentence of six years' imprisonment with a non-parole period of three years and seven months on Hannachi, commencing 6 April 2018. The longer sentence reflected the greater seriousness of his charges, including two offences carrying a maximum of 20 years with standard non-parole periods of ten years, his role in directing street-level dealers, and the aggravating circumstance of having been on good behaviour bonds at the time of offending.

Chamon received an aggregate sentence of five years' imprisonment with a non-parole period of three years, also commencing 6 April 2018. The court accepted that his involvement commenced later and that he had been overseas for part of the period covered by the agreed facts. His prior good character was taken into account, and the indicative sentences for his three principal charges were set at three years nine months, two years, and two years three months respectively.

The court acknowledged the structural difficulty in applying parity principles. The two men faced different charges with different maximum penalties, and the agreed facts did not map neatly onto the organisational chart tendered by the prosecution. The court distinguished the two accused primarily on the basis of the nature and maximum penalties of their respective charges, rather than a simple hierarchical assessment of their roles.

Special circumstances were found in relation to both men. The relevant considerations included that each was serving imprisonment for the first time, was a foreign national with English as a second language, was distant from family support networks, and would require professional assistance upon release to adjust to community living and address drug use issues. The court expressly noted that it did not accept that either man had come to Australia for the purpose of committing crimes, though it clarified this observation was not necessarily determinative of the special circumstances finding.

Orders Made

  • Hannachi: convicted on all matters; aggregate sentence of six years' imprisonment with a non-parole period of three years and seven months, commencing 6 April 2018.
  • Chamon: convicted on all matters; aggregate sentence of five years' imprisonment (indicative sentences set out for each sequence) with a non-parole period of three years commencing 6 April 2018, and a balance of term of two years.
  • Special circumstances found under s 44 of the Crimes (Sentencing Procedure) Act 1999 for both offenders.

Key Takeaways

  • The District Court applied the totality principle to moderate individual head sentences into aggregate terms, ensuring the combined sentence reflected the overall criminality without being crushing.
  • Parity between co-accused required careful analysis: where offenders face materially different charges with different maximum penalties and standard non-parole periods, differences in sentence outcome may be fully justified even within the same criminal enterprise.
  • A breach of good behaviour bonds at the time of offending constitutes an aggravating factor under New South Wales sentencing law and can support a heavier sentence relative to a co-accused with no such history.
  • Special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 were established on the combined basis of first-time imprisonment, foreign nationality, isolation from family, English as a second language, and the anticipated need for post-release support, including drug counselling.
  • Where an agreed statement of facts does not align precisely with the charges brought, the sentencing court is constrained to the facts as agreed and the charges as framed, rather than any broader characterisation of an offender's role suggested by prosecution documents.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 25(2)

Cases
- Attorney General's Application (No 1) [2002] 56 NSWLR 147
- Bugmy v R [2013] HCA 37
- Hili and Jones v R [2011] HCA 45
- Johnson v R (2004) 78 ALJR 616
- Lee v R [2019] NSWCCA 106
- Mill v R (1988) 166 CLR 59
- Moss v R [2013] NSWCCA 242
- Muldrock v R [2011] HCA 39
- Olbrich v R (1999) 199 CLR 270
- Parente v R [2017] NSWCCA
- Pearce v R (1998) 194 CLR 610
- R v Qutami [2001] NSWCCA 353
- R v Way [2004] NSWCCA 131
- R v XX (2009) 198 A Crim R 38
- Shi v R [2004] NSWCCA 135