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District Court 18 November 2022

R v Bellahcene; R v Perier

[2022] NSWDC 573

Drugs
CRIME DRUG OFFENCES COMMONWEALTH OFFENCES POSSESS PROHIBITED DRUG SUPPLY PROHIBITED DRUG

Citation: R v Bellahcene; R v Perier [2022] NSWDC 573
Court: District Court of New South Wales
Date: 18 November 2022
Judge(s): Scotting DCJ

Background

Two French nationals appeared before the District Court for sentencing as co-offenders after pleading guilty in the Local Court. Both had been arrested on 8 July 2021 after attending a Pack and Send store in Bondi Junction to collect a consignment that had been intercepted and examined by the Australian Border Force. The parcel, addressed to a fictitious name, contained approximately 1,056 MDMA pills concealed inside toy packaging, with a pure weight 256.8 times the marketable quantity and an estimated street value of $23,760.

The first offender (referred to here as the collector) pleaded guilty to attempting to possess a marketable quantity of a border controlled drug imported contrary to Commonwealth law, carrying a maximum penalty of 25 years imprisonment. The second offender (referred to here as the supervisor) pleaded guilty to the same Commonwealth offence, as well as a state offence of supply of a prohibited drug, with additional possession and supply offences taken into account on a Form 1.

The two men had been told the parcel contained watches purchased with a stolen credit card. Neither had actual knowledge it contained drugs, but the court found both were reckless as to its contents. Their respective personal circumstances and criminal histories differed markedly, and Scotting DCJ was required to determine appropriate sentences for each.

Legal Issues

  • Whether each offender had actual knowledge or merely recklessness as to the contents of the consignment
  • The appropriate sentence for each offender under the Commonwealth sentencing framework in Part IB of the Crimes Act 1914 (Cth), including the relevant factors in s 16A(2)
  • What discount applied to each offender for early guilty pleas
  • Whether parity between co-offenders required equivalent sentences despite differences in criminal history
  • Whether special circumstances warranted a longer parole period for the supervisor
  • Whether the supervisor's sentence should be served by way of an Intensive Corrections Order

Decision

Issue 1: Knowledge and Recklessness

The court found that neither offender had actual knowledge that the package contained drugs (at [60], [61]). Both were reckless as to its contents. In the supervisor's case, a conflict arose between the sentencing assessment report and what he had consistently told police and a psychologist. After hearing the report's author give evidence and be cross-examined, Scotting DCJ was not satisfied the supervisor knew the package contained drugs, finding it reasonably possible that the absence of an interpreter caused confusion during the assessment interview (at [61]).

Issue 2: Role and Objective Seriousness

The offenders' role was characterised as quite limited. They were involved on one day only, their task was simply to collect the package, and the offending involved minimal planning (at [59]). The collector committed the offence while on conditional liberty under both a Community Corrections Order and an Intensive Corrections Order for prior drug-related offences, including supply (at [63]). The supervisor became involved out of a misplaced sense of family loyalty, motivated by a desire to help his brother clear a debt in France rather than for financial gain (at [62]).

Issue 3: Plea Discounts and Parity

Each offender received a 25 percent discount for their guilty pleas, reflecting the significant utilitarian value of those pleas (at [8]). The court acknowledged the parity principle but found the collector's criminal history justified a more severe sentence (at [78]).

Issue 4: Personal Circumstances and Rehabilitation

The collector had prior drug supply convictions and had previously failed to take advantage of community-based orders. The court found he had some, but limited, prospects of rehabilitation (at [75]). The supervisor had no prior criminal history, suffered from depression linked to a deprived childhood involving parental neglect and family addiction, and had performed well in custody by completing courses and working in the prison kitchen. The court found he had good prospects of rehabilitation (at [76]). Special circumstances were established for the supervisor given his first period of custody, absence of family in Australia, and addiction issues, warranting a longer supervisory period on parole (at [89]). The court declined to order that his sentence be served by way of an Intensive Corrections Order, citing his limited community ties in Australia and the need for a sentence of appropriate severity (at [95]).

Orders Made

Mr Bellahcene (the collector):
- Convicted of attempting to possess a marketable quantity of a border controlled drug
- Sentenced to 3 years imprisonment dating from 8 April 2022
- To be released on 7 October 2023 (after serving 18 months) on a recognisance of $1 to be of good behaviour for 3 years

Mr Perier (the supervisor):
- Convicted of the Commonwealth offence and the state supply offence
- State offence: 2 years imprisonment with a 1-year non-parole period, dating from 8 July 2021 (head sentence expiring 7 July 2023; non-parole period expiring 7 July 2022)
- Federal offence: 2 years and 6 months imprisonment dating from 8 January 2022
- To be released on 7 January 2023 (after serving 12 months of the federal sentence) on a recognisance of $1 to be of good behaviour for 3 years
- Total effective term: 3 years imprisonment with a non-parole period of 18 months
- Intensive Corrections Order declined

Key Takeaways

  • Recklessness as to the contents of a consignment is sufficient for liability under the Commonwealth attempt-to-possess offence; actual knowledge is not required (at [60], [61]).

  • Where a sentencing assessment report conflicts with an offender's consistent account to police and a treating psychologist, and the report's author acknowledges possible confusion arising from the absence of an interpreter, a court may decline to find actual knowledge and proceed on the basis of recklessness only (at [61]).

  • The District Court treated offending while subject to existing conditional liberty orders as a significant aggravating factor, justifying departure from parity with an otherwise similarly placed co-offender (at [63], [78]).

  • A deprived upbringing involving parental neglect, exposure to addiction, and family dysfunction can reduce an offender's moral culpability and support a finding of special circumstances warranting extended parole supervision, particularly where depression and substance dependence are linked to that background (at [65], [89]).

  • General deterrence remains a fundamental sentencing consideration in serious drug offences, and the court confirmed that sentences must be severe enough to signal that financial rewards from drug-related activities will be outweighed by the risk of significant punishment (at [69]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999
- Criminal Code 1995 (Cth) .
- Drug Misuse and Trafficking Act 1985 (NSW) .

Cases
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Power v The Queen (1974) 131 CLR 623
- R v El Karhani (1990) 21 NSWLR 370
- R v Nguyen (2010) 205 A Crim R 106
- R v Olbrich (1999) 199 CLR 270