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District Court 6 August 2019

R v Bianchi

[2019] NSWDC 926

DrugsFraud & dishonesty
CRIME SENTENCE METHYLENEDIOXYMETHAMPHETAMINE DEAL WITH PROCEEDS CRIME PARTICIPATE IN CRIMINAL GROUP FOREIGN NATIONAL

Citation: R v Bianchi [2019] NSWDC 926
Court: District Court of New South Wales
Date: 6 August 2019
Judge(s): Norrish QC DCJ

Background

The offender, a foreign national, was one of several co-accused involved in an organised drug supply network operating across Sydney. He arrived in Australia on 7 February 2018 and came to the attention of authorities only after that date, limiting his identified involvement to a discrete window in March and April 2018.

The offender faced two principal charges. The first was knowingly taking part in the supply of 17 grams of MDMA (methylenedioxymethamphetamine) at Haymarket on 28 March 2018, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, which carries a maximum of 15 years imprisonment. The second was dealing with suspected proceeds of crime totalling $9,350 between 14 March and 6 April 2018, contrary to s 193C(2) of the Crimes Act 1900, which carries a maximum of three years.

A third charge, participating in a criminal group, was placed on a Form 1 to be taken into account on sentence alongside the principal offences. The offender had spent approximately three months and six days in pre-sentence custody.

  • How should a Form 1 charge of participating in a criminal group affect the sentence for the principal drug supply offence, in circumstances where the Form 1 conduct substantially overlaps with the principal charges?
  • What was the appropriate sentence given the offender's comparatively low level of culpability within the broader criminal enterprise?
  • How should parity with already-sentenced co-offenders and the principle of totality inform the final sentence?
  • Whether an Intensive Correction Order (ICO) was an appropriate alternative to full-time custody in the circumstances.

Decision

Norrish QC DCJ carefully considered the role of the Form 1 participating-in-a-criminal-group charge. His Honour noted the growing frequency with which this charge accompanies drug supply offences and applied the guideline in Attorney-General's Application No 1 of 2002, which requires a sentencer to identify a discrete way in which the Form 1 matter informs the principal offence. In this case, the Form 1 charge largely provided contextual background for the principal charges rather than significantly expanding the criminality already captured by them.

On the question of culpability, his Honour found the offender's role was at the lower end of the scale within the broader network. Surveillance evidence showed that on the proceeds of crime occasion, the offender was merely present while another co-accused counted money. On the drug supply occasion, the offender acted as a conduit, passing a 17-gram quantity of MDMA from Chamon to an unidentified English male. His Honour accepted the offender's pleas of guilty, expressions of remorse, prior good character, efforts to re-establish himself since his earlier period in custody, and the support of his family as relevant mitigating factors.

Parity with the sentences imposed on co-accused Chamon and Hannachi was considered. His Honour was satisfied that a sentence reflecting the offender's more limited involvement and shorter period of participation was justified. The principle of totality was applied to the two sentences to ensure the overall sentencing outcome was proportionate to the totality of the offender's criminality.

His Honour concluded that an Intensive Correction Order was appropriate for both charges rather than full-time custody, taking into account the pre-sentence custody already served, the offender's rehabilitation efforts, and his relatively peripheral role.

Orders Made

  • Sequence 1 (drug supply): Convicted; sentenced to 1 year 3 months imprisonment, to be served by Intensive Correction Order commencing 6 August 2019.
  • Sequence 2 (proceeds of crime): Convicted; sentenced to 6 months imprisonment, to be served by Intensive Correction Order commencing 6 August 2020.
  • Standard ICO conditions imposed: no further offences; supervision by a Community Corrections Officer.
  • Additional condition: no association with any co-accused while subject to the order.
  • The offender was directed to report to Sydney Community Corrections on 7 August 2019 at 11am.
  • Community service was not imposed as it was unavailable at the relevant Community Corrections office.

Key Takeaways

  • A Form 1 charge of participating in a criminal group does not automatically increase a sentence significantly where the conduct in the Form 1 substantially overlaps with and contextualises the conduct already captured by the principal offences.
  • Under the guideline in Attorney-General's Application No 1 of 2002, a sentencing court must identify a discrete way in which a Form 1 matter affects the principal sentence; the mere presence of a Form 1 charge does not compel a heavier outcome.
  • Where a foreign national's involvement in a drug network was limited in time (commencing only on arrival in the jurisdiction) and functionally peripheral to the network's core operations, that limited culpability is a significant factor bearing on the appropriate sentence.
  • Parity with co-accused and the totality principle operate together to shape individual sentences within a multi-offender sentencing exercise, ensuring that each participant's sentence reflects their relative role.
  • An Intensive Correction Order remained available as a sentencing option even for offences carrying serious maximum penalties, where the combination of mitigating factors, pre-sentence custody, and low-level culpability made full-time custody disproportionate.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes Act 1900 (NSW), s 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 7(1)

Cases
- Attorney-General's Application No 1 of 2002 (2002) 53 NSWLR 146; [2002] NSWCCA 518
- Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
- EF v R [2015] NSWCCA 36
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Johnson v R [2004] HCA 15; (2004) 78 ALJR 616
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- Mill v R (1988) 166 CLR 59; [1988] HCA 70
- Olbrich v R [1999] HCA 54
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Postiglione v R (1997) 189 CLR 295; [1997] HCA 26
- R v Hammoud [2000] NSWCCA 540; (2000) 118 A Crim R 66
- R v Holder (1983) 3 NSWLR 245
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- R v Zamagias [2002] NSWCCA 17
- Robertson v R [2017] NSWCCA 205
- West v R (2017) NSWCCA 271