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District Court 20 April 2020

R v Lorenzo Fiordelli

[2020] NSWDC 154

Fraud & dishonesty
CRIME OFFENDERS SENTENCED TO FULL TIME IMPRISONMENT SENTENCING RELEVANCE OF THE COVID 19 PANDEMIC ON SENTENCE

Citation: R v Lorenzo Fiordelli [2020] NSWDC 154
Court: District Court of New South Wales
Date: 20 April 2020
Judge(s): Yehia SC DCJ

Background

The offender faced sentencing on six counts of jointly importing tobacco products with intent to defraud revenue, contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) and s 11.2A(1) of the Criminal Code (Cth). A seventh offence was taken into account on a schedule. Each offence carried a maximum penalty of 10 years imprisonment and/or a $180,000 fine.

Between May and August 2016, the offender and two co-offenders smuggled nearly 3.9 million cigarette sticks into Australia across six consignments, predominantly from China. The group used falsified import documents, fake company addresses, and substitution schemes to conceal cigarettes from Australian Border Force officers. The offender contributed directly through his employment at a freight forwarding company, which gave him after-hours warehouse access used to remove cigarettes from bonded consignments and replace them with decoy goods.

Two co-offenders had already been sentenced: Qing Shi received 18 months imprisonment (released after 9 months on recognizance) and Salvatore Alfonso received 20 months imprisonment (released after 10 months on recognizance). Both received full-time custodial sentences. The question before the court was whether the current offender should receive the same, or whether distinguishing factors justified a different approach.

  • Whether the principle of parity required the court to impose a sentence broadly consistent with those received by the co-offenders (who both served full-time custody)
  • Whether an Intensive Correction Order (ICO) was available and appropriate given the offender's demonstrated rehabilitation
  • Whether and how the COVID-19 pandemic should be taken into account in sentencing
  • What weight to give the offender's guilty plea, remorse, and other mitigating factors

Decision

The court found that parity must be considered, but does not mandate identical sentences. It accepted that the offender had demonstrated exceptional and genuine rehabilitation since the offending, supported by a range of evidence including character references, evidence of stable employment, family circumstances, and community contributions. These factors, combined with the absence of prior criminal history and the genuine remorse reflected in the early guilty plea, distinguished his case from those of the co-offenders.

On the question of an ICO, the court was satisfied that the offender's rehabilitation was sufficiently compelling to justify departing from full-time imprisonment, notwithstanding the serious nature of the offences and the substantial revenue defrauded. An ICO is a form of imprisonment served in the community under strict supervision conditions, and its imposition does not trivialise the gravity of the offending.

The court also addressed the COVID-19 pandemic as a sentencing consideration, following several recent Victorian decisions. Restrictions on prison visits and reduced opportunities for meaningful work and occupation in custody were accepted as factors adding to the burden of imprisonment. However, the court was explicit that the pandemic alone would not have been sufficient to justify an ICO. It was the combination of outstanding rehabilitation and the pandemic's impact that together underpinned the decision.

After applying a 25% reduction for the utilitarian value of the early guilty plea, the court imposed an aggregate sentence of 20 months imprisonment, structured to be served by way of an ICO with community service conditions.

Orders Made

  • The offender was convicted of each offence
  • Indicative sentences were set for each sequence (ranging from 6 to 14 months), each reflecting a 25% discount for the early guilty plea
  • An aggregate sentence of 20 months imprisonment was imposed, to be served by way of an Intensive Correction Order (ICO) pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Standard ICO conditions imposed: no further offences; submission to the supervision of Community Corrections
  • Additional condition: 150 hours of community service work
  • The offender was directed to report to the Bankstown office of Community Corrections within 7 days

Key Takeaways

  • The District Court confirmed that the parity principle does not automatically preclude an ICO where co-offenders received full-time imprisonment; genuine and exceptional rehabilitation can constitute a sufficient distinguishing factor.
  • Where an offender demonstrates outstanding post-offence rehabilitation, supported by credible evidence, a sentencing court retains discretion to impose an ICO even for serious Commonwealth offending involving substantial fraud.
  • The COVID-19 pandemic was treated as a relevant but limited mitigating factor, with the court noting that harsher custodial conditions (including suspension of visits and reduced productive activity) added to the hardship of imprisonment, following the approach in several 2020 Victorian County Court decisions.
  • An early guilty plea reflecting both utilitarian value and genuine remorse attracted a 25% sentence reduction, consistent with established principles.
  • Abuse of a position of trust (in this case, the offender's employment at a freight forwarding company) was identified as a factor increasing the objective seriousness of specific offences within the overall course of conduct.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BABAD(1)
- Criminal Code (Cth), s 11.2A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 66, 68

Cases:
- Markarian v The Queen (2005) 228 CLR 357
- Mill v R (1988) 166 CLR 59
- Todd v R [1982] 2 NSWLR 517
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Director of Public Prosecutions v Dalgliesh [2017] 91 ALJR 1063
- Casella v R [2019] NSWCCA 201
- R v Fangaloka [2019] NSWCCA 173
- R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225
- R v Pullen [2018] NSWCCA 264
- R v Saleh [2015] NSWCCA 299
- R v Zhang [2017] 265 A Crim R 113
- Rakielbakhour v DPP [2020] NSWSC 323
- Brown v R [2020] VSC 60
- DPP (Cth) v Politopoulos [2020] VCC 338
- DPP v Morey (a pseudonym) [2020] VCC 320
- DPP v Tennison [2020] VCC 343