R v Bellahcene; R v Perier

[2022] NSWDC 573

District Court

New South Wales

Medium Neutral Citation:

R v Bellahcene; R v Perier [2022] NSWDC 573

Hearing dates:

16 September 2022, 18 November 2022

Date of orders:

18 November 2022

Decision date:

18 November 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Penalty – Mr Bellahcene

1 Mr Bellahcene is convicted.
2 I impose a term of imprisonment of 3 years to date from 8 April 2022.
3 Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 7 October 2023, having served 18 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 3 years.

Penalty – Mr Perier

4 Mr Perier is convicted.
5 For the state offence, taking into account the matters on the Form 1, I impose a term of imprisonment of 2 years with a non-parole period of 1 year to date from 8 July 2021. The head sentence will expire on 7 July 2023 and the non-parole period will expire on 7 July 2022.
6 For the federal offence, I impose a term of imprisonment of 2 years and 6 months to date from 8 January 2022.
7 Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 7 January 2023, having served 12 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 3 years.
8 The total effective term of imprisonment I have imposed on Mr Perier is 3 years with a non-parole period of 18 months.

Catchwords:

CRIME — Drug offences — Commonwealth offences

CRIME — Drug offences — Possess prohibited drug

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Criminal Code 1995 (Cth).

Drug Misuse and Trafficking Act 1985 (NSW).

Cases Cited:

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

Category:

Sentence

Parties:

Commonwealth Director of Public Prosecutions (Crown)
Karin/Karim Bellahcene (Offender)
Dylan Perier (Offender)

Representation:

Counsel:
D Jordan (Crown)
P Baume (Bellahcene)
G Brady SC (Perier)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Benjamin Leonardo Criminal Lawyers (Perier)

File Number(s):

2021/197059
2021/196213

Publication restriction:

None

Judgment

1. Karim Bellahcene appears for sentence after pleading guilty in the Local Court to an offence that he attempted to possess a marketable quantity of a border controlled drug (3,4-methylenedioxymethamphetamine or MDMA) that had been imported contrary to s 307.6(1) and s 11.1(1) Criminal Code 1995 (Cth). The maximum penalty for the offence is 25 years imprisonment.

2. Dylan Kristian Cyril Perier appears for sentence after pleading guilty in the Local Court to the following offences:

1. that between 24 June 2021 and 8 July 2021 he attempted to possess a marketable quantity of a border controlled drug (MDMA) that had been imported contrary to s 307.6(1) and s 11.1(1) Criminal Code 1995 (Cth). The maximum penalty for the offence is 25 years imprisonment;

2. that on 8 July 2021 he did supply a prohibited drug (lysergide) in an amount not less that the large commercial quantity contrary to s 25(2) Drug Misuse and Trafficking Act 1985 (NSW). The maximum penalty for the offence is life imprisonment. Parliament has also prescribed a standard non-parole period of 15 years.

3. Mr Perier also asks the Court to take into account an offence of supply prohibited drug and an offence of possess prohibited drug on a Form 1 when passing sentence for the supply offence.

4. The offenders are co-offenders in the Commonwealth offence.

Approach to Sentencing

5. To the extent that I make findings of fact adverse to an offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

Federal offences

6. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

7. A court determining a sentence in respect of any person for a federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

8. The offenders entered pleas of guilty to the Commonwealth offences in the Local Court. The pleas of guilty have saved the need for witnesses to be called at trial and there is significant utilitarian value in the pleas of guilty. The appropriate discount for each offender is 25%.

9. I have had regard to the principles relevant to sentencing serious federal drug offenders set out in R v Nguyen (2010) 205 A Crim R 106 at [72] (Johnson J).

10. For a federal offence, the minimum period that justice requires the offender to serve in custody, is fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

State offence

11. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of that Act.

12. Mr Perier entered a plea of guilty in the Local Court to the state offence and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

13. The parties presented an Agreed Statement of Facts in each matter that can be summarised as follows.

14. Mr Bellahcene is a 35-year-old French national. He arrived in Australia in 2019.

15. Mr Perier is a 28-year-old French national. He arrived in Australia in 2017.

16. On 27 June 2021 a consignment arrived at Sydney Airport addressed to Anna Piezo at an address in Nelson Street Bondi Junction.

17. On examination by the Australian Border Force, the consignment consisted of a box containing one pair of black pants and two toy packages branded “City Life Playmobil”. The consignment returned a positive presumptive test for methamphetamine or MDMA.

18. On 5 July 2021 New South Wales Police took possession of the consignment and deconstructed it finding grey coloured pills with a Maserati logo stamp on them within the toy packages.

19. On 7 July 2021 police left a UPS Info Notice collection card for the consignment on the patio of the address in Bondi Junction.

20. At about 12:52pm on 8 July 2021, Mr Bellahcene and Mr Perier were observed by police walking towards the Bondi Junction Pack and Send (the store). Mr Bellahcene entered the store and Mr Perier remained outside.

21. Mr Bellahcene presented the UPS collection card and wrote the name “Samy Taddet” and a mobile telephone number on the page of a telephone message note pad, which he provided to the Pack and Send staff before he took possession of the consignment. He exited the store and headed eastbound along Oxford Street. Mr Perier followed, staying about 20-30 metres behind.

22. When Mr Bellahcene was approached by police, he dropped the parcel and ran before being apprehended by plain clothes officers. Mr Perier was arrested and did not resist.

23. The consignment was found to contain approximately 1,056 pills with a net weight 475.7g. Forensic analysis found the substance to be MDMA, with a purity of 27%, giving a pure weight of 128.44g. The marketable quantity of MDMA is 0.5g. The pure weight was 256.8 times the marketable quantity. The estimated street value of the MDMA was $23,760.

24. Mr Bellahcene participated in a Record of Interview. He told the police that he did not use his real name to collect the package. He was initially offered $100 and then $400 to collect a package containing watches that had been purchased with a stolen credit card. He admitted that the request was not normal. He denied that he knew that the package contained drugs. He had a friend who collected a package and discovered drugs when he opened it. He stated that he had not been to the consignment address. He had downloaded Wickr about a year previously and deleted it. He downloaded it again on the day before his arrest. He declined to implicate anyone involved because he was scared of reprisals.

25. A search warrant was executed at Mr Perier’s residence in Bondi. Police located:

1. a clear resealable bag containing white powder that was later analysed as 9.16g of cocaine. The weight of the cocaine was about 1.8 times the indictable quantity. The estimated street value of the cocaine was $3,778.50;

2. a clear resealable bag containing white powder that was later analysed to 7.05g ketamine The estimated street value of the ketamine was between $1,269 and $1,833; and

3. 386 tabs of lysergide (LSD), totalling 5.6054g including the weight of the paper that the substance was fused into. The weight of the LSD was about 2.8 times the large commercial quantity. The estimated street value of the LSD was $9,650.

26. Mr Perier participated in a Record of Interview. He told the police that he was paid $400 to get the consignment. He said that the person who asked him to pick up the package wanted him to pick up three packages and this was the first of them. He was told that the package contained watches and that he communicated with the person via Wickr. He thought it was strange to get paid to pick up watches. He contacted Mr Bellahcene about an hour before to come with him because he did not feel comfortable about picking up the package. He was paid by transfer into a different person’s bank account and that person gave him cash. He recognised the mobile telephone number because it related to a SIM card that someone had given him, which he had thrown out three weeks earlier. He admitted that the drugs found at his residence were his.

Sentencing Assessment Report – Mr Bellahcene

27. The court received a Sentencing Assessment Report (SAR) for Mr Bellahcene dated 8 September 2022. The report can be summarised as follows.

28. Mr Bellahcene came to Australia in 2019 on a working holiday visa. He is well educated having attained a Bachelor of Accounting degree in France.

29. After arriving in Australia he worked as a landscape gardener and an Uber driver, until the COVID-19 restrictions were introduced.

30. Mr Bellahcene accepted responsibility for his offending behaviour and expressed a degree of remorse. He stated that he understood the impact of drugs in the community. He acknowledged that he had pursued a hedonistic lifestyle since arriving in Australia, with like-minded peers who regularly used illicit drugs. He was not under the influence at the time of the offences because he had been unemployed as a result of the pandemic and could not afford to purchase drugs. He committed the offence for financial gain.

31. He expressed a willingness to undertake interventions. He was assessed as unsuitable for supervision because it was expected that he would be deported on his release from prison.

Sentencing Assessment Report – Mr Perier

32. The court received a Sentencing Assessment Report (SAR) for Mr Perier dated 13 September 2022. The report can be summarised as follows.

33. Mr Perier has travelled extensively and worked in a number of different roles.

34. The SAR recorded that Mr Perier told the author that he was aware of the content of the package and that he intended to share the drugs with friends but not to sell them for financial gain.

35. He was assessed as a medium risk of reoffending and suitable for supervision which would include referrals to drug rehabilitation programs.

Mr Bellahcene’s Case on Sentence

36. Mr Bellahcene tendered the following documents:

1. character reference of Lucie Dauvigier (friend) dated 10 September 2022;

2. character reference of Maxime Spazzini (colleague) dated 15 September 2022;

3. letter from Dr Joseph Magdy (cardiologist) dated 3 November 2021;

4. letter of apology from offender dated 15 September 2021.

37. The following is a summary of the evidence relied upon by Mr Bellahcene. I will try not to repeat matters referred to in the SAR.

38. Mr Bellahcene was born in France in 1987. He was 34 years of age at the time of the offending. He grew up in France with his family.

39. Mr Bellahcene suffers from a cardiac condition, paroxysmal atrial fibrillation. He has been admitted to hospital several times whilst on remand for this condition, the first admission being in July 2021. He currently takes Metoprolol 50 milligrams twice daily and Apixaban 5 milligrams twice daily. He commenced these medications after his first hospital admission. This condition requires ongoing monitoring, assessment and treatment. Mr Bellahcene contracted COVID-19 in custody in July 2022.

40. Mr Bellahcene expressed remorse in his letter to the Court. He acknowledged the impact that drugs can have on the community. He stated that his period of incarceration has been a salutary experience.

41. Mr Bellahcene’s friend, Ms Dauvigier and work colleague Mr Spazzini, both wrote he is a caring, attentive person. Mr Bellahcene has expressed remorse to both of them.

Mr Perier’s Case on Sentence

42. Mr Perier tendered the following documents:

1. Affidavit of Dylan Perier sworn 6 September 2022;

2. Case Note Report from Corrective Services;

3. Work Program Report from MRRC;

4. records of completion of programs in custody;

5. letter from Victoria Mieri dated 6 September 2022;

6. letter from Arthur Roux dated 27 August 2022;

7. reports of Sam Borenstein, psychologist, dated 17 August 2022 and 8 September 2022.

43. The following is a summary of the evidence relied on by Mr Perier.

44. Mr Perier was born in Paris and moved to La Rochelle with his mother and younger brother when he was three or four years old, because his parents separated. His father went to gaol at this time.

45. In his early years, he looked after his younger brother and made sure that he got to school because his mother neglected the children. When he was eight years old he was put into foster care because his mother could not care for them. He was separated from his brother. He stayed in the same foster placement for about four years. His brother came to live with him when he was about 10.

46. Mr Perier and his brother moved back with his mother for about six months, before being removed from her care because they were not going to school. He was separated from his brother again and sent to a refuge for about 18 months, until he was 15. When they tried to put him in a different refuge, he left after eight or nine months and moved back with his mother until the age of 19.

47. About six months later, Mr Perier moved to a seaside resort town, Royan and got a job in a clothing shop. He worked there for about six months during the summer.

48. When he was about 20, he moved to St Martin in the Caribbean. He got a job at a pizzeria, delivering pizza at first, then as a waiter and also as a cook. He stayed in this work for about nine months. At this time met his girlfriend, Victoria Mieri and they have been together since, a period of about five years.

49. After working at the pizzeria, he returned with Victoria to Royan and worked at the clothing shop again for about four months.

50. In November 2017 Mr Perier, Victoria and a friend came to Australia on a working holiday visa. They stayed in a hostel for three weeks and then started renting an apartment in Pyrmont.

51. In December 2017 Mr Perier commenced work as a landscape gardener. He worked there for about 5 months before travelling through Asia for about two months. In June 2018 he got a job as a labourer on a building site in Green Square for about 12 months. In about May 2019 he commenced work for a removalist. In July and August 2019 he returned to France to see his brother who was in gaol and visited his mother. In September 2019 he returned to Australia and to his job as a removalist. He also did some labouring work on a construction site. He became unemployed during the COVID–19 lockdowns affecting Sydney.

52. Mr Perier told the psychologist that his family have “the big problem with addiction”. His father and younger brother are addicted to heroin and have been in and out of gaol. He was drinking a lot of alcohol and using a variety of drugs prior to the offences. He has been drug-free in custody and is happy to be abstinent.

53. Mr Perier told the psychologist that he was very protective of his brother and became involved in the offending conduct to help his brother clear a debt that he owed in France.

54. Mr Perier deposed that his time in gaol has been difficult because of the COVID-19 restrictions that have resulted in 24-hour lockdowns. He annexed a list of lock-in days to his affidavit. Mr Perier has sought to consult a psychologist in prison to discuss his past and to ensure he remains abstinent.

55. Mr Perier commenced working in the kitchen in July 2021. He enjoys working in the kitchen and wants to eventually open his own restaurant in the Caribbean. He has also undertaken physical training. He has completed a number of courses in custody, including a drug and alcohol course, a food safety course and a Certificate II in hospitality. He is also a member of the hygiene crew cleaning COVID positive cells on the weekends. He is considered to be a model prisoner and an excellent worker.

56. Mr Perier deposed that he was very sorry for what he had done. Being in custody has helped him to understand the effects of drugs on the community. He looks forward to the opportunity to make amends for his behaviour. Mr Perier also expressed remorse to the psychologist.

57. The psychologist opined that Mr Perier’s early childhood and adolescent development was negatively impacted by his father’s heroin addiction and imprisonment, together with his mother’s physical and emotional neglect. The psychologist believes that Mr Perier suffers from major depression. As a result of his history of emotional deprivation he used illicit substances to self-medicate and that his substance use was a contributing factor to his offending conduct.

58. The psychologist recommended that Mr Perier have psychological treatment to prevent relapse into drug use.

Consideration

The nature and circumstances of the offences

59. The offenders’ role in the attempt to possess offence was quite limited. They were involved in the offence on one day. Their role was to collect the package. The offence was committed for financial gain, but the amount of the gain was small. The offence involved minimal planning.

60. Mr Bellahcene did not have actual knowledge that the package contained drugs but was reckless to the fact.

61. The only evidence that Mr Perier knew that the package collected from Pack and Send contained drugs was the statement of the author of the SAR, Tamieka Moss. Otherwise, Mr Perier was consistent in what he told the police and the psychologist. Ms Moss was called to give evidence and cross-examined on this point. The interview between Ms Moss and Mr Perier was conducted without an interpreter being present because Mr Perier did not think it was necessary. The record made by Ms Moss reads as if there was only one offence committed by Mr Perier and that there was a link between the collected package and the drugs located at his residence. The discrete offences arising from the drugs located in his residence were not specifically referred to. Ms Moss did not believe that Mr Perier demonstrated any misunderstanding in the interview but conceded that he may have been confused. I am not satisfied that Mr Perier had knowledge that the package contained drugs. I am satisfied that he was told that the package contained watches that had been purchased with a stolen credit card, but that he suspected it may have contained drugs. It is reasonably possible that this was the source of the confusion. I am satisfied that Mr Perier was reckless to the fact that the package contained drugs.

59. Mr Perier became involved out of a misplaced sense of family loyalty. However, that loyalty is understandable considering the central role he played in his younger brother’s upbringing. I am not satisfied that he would have participated in the offence for a payment of $400.

60. Mr Bellahcene committed the offence while he was on conditional liberty, in the form of a Community Corrections Order and an Intensive Corrections Order, both of which he received for drug-related offences including supply.

61. As to the supply offence, the weight of the drugs included the weight of the paper that it was fused into. The estimated value of the drugs was relatively low. The drug could not be cut and multiplied for the purpose of on-supply to others. Mr Perier used the LSD himself and probably intended to ingest a large proportion of the drugs located. By his plea, Mr Perier accepts that he had the drug in his possession for the purposes of supply. There was no indicia of supply for reward or that Mr Perier was in the business of supply. The offence involved minimal planning.

62. Mr Perier has had a deprived upbringing. He was exposed to addiction, imprisonment and neglect as a child. His emotional deprivation led to a persistent depressive disorder which led him to self-medicating with illicit substances and alcohol. There is some nexus between his substance abuse and his offending behaviour. His moral culpability for the offences is reduced to some extent.

63. I have taken into account the maximum penalty for the offences.

Contrition

67. Mr Perier expressed contrition to the psychologist and to the Court. Mr Perier has accepted responsibility for his actions and understands the impact they have had on the community. I accept that his expressed contrition is genuine.

68. Mr Bellahcene has expressed remorse to his referees and to the Court. I accept that he is genuinely contrite.

Deterrence

69. General deterrence is a fundamental consideration in drug offences. The sentence must be of such severity to deter others from engaging in drug related activities. The sentence must signal to would be participants in drug offences that the financial rewards will be neutralised by the risk of condign punishment.

70. The penalties imposed must also provide for specific deterrence.

71. Mr Bellahcene has committed a number of offences in Australia. He needs to understand by reference to the penalty imposed on him that if he continues to commit offences that he will be met with condign punishment.

72. Mr Perier has no prior criminal record. It is likely that he will be deported on his release from custody and specific deterrence can be afforded less weight.

Character, antecedents, age, physical and mental condition

73. Mr Bellahcene is 35 years of age and has a serious cardiac condition. On 6 October 2020, he was convicted of an offence of supply prohibited drug. He was ordered to enter into a Community Corrections Order for a period of 24 months, concluding on 5 October 2024. On 20 May 2021, he was sentenced to 26 months imprisonment, to be served by way of an Intensive Corrections Order for a number of supply prohibited drug offences, expiring on 19 July 2023. He was arrested for this matter on 8 July 2021. On 27 July 2021, the ICO was revoked by the State Parole Authority and the full remaining term of 2 years and 12 days imposed as a fixed term of imprisonment to date from 8 July 2021. It seems unlikely that his serious cardiac condition was taken into account by the State Parole Authority at the time of its decision, because the diagnosis was only confirmed in November 2021.

74. Mr Perier is 28 years of age, he has no prior criminal convictions and was a person of good character. He has drug addiction issues and suffers from depression stemming from the impacts of his deprived upbringing.

Prospects of rehabilitation

75. Mr Bellahcene has some prospects of rehabilitation. He has accepted responsibility for his actions, but he has shunned prior opportunities to rehabilitate himself when given the opportunity to do so.

76. Mr Perier has good prospects of rehabilitation. He has demonstrated by his actions in custody, that he is a good worker and has plans for the future. He has the support of his girlfriend and friends.

Comparable sentences

77. I have taken into account the comparable sentences referred to me by the parties and the sentencing statistics for the federal offence. I note the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520.

Parity

78. I have had regard to the issue of parity in passing sentence for the federal offence. Mr Bellahcene’s criminal history justifies the imposition of different sentences on the offenders for the federal offence.

Pre-sentence custody

79. The offenders have been in custody since their arrest on 8 July 2021. Mr Bellachene has been serving a sentence imposed on him by the SPA for breach of his ICO. I will partially backdate the sentence I will impose, so as to partially accumulate the sentences.

80. Mr Perier is entitled to full credit for his time in custody.

81. I have taken into account the conditions imposed on prisoners in New South Wales in response to the COVID-19 pandemic and the impact those conditions have had on the offenders. I have taken into account that such measures will remain in place for some time into the future.

Penalty – Mr Bellahcene

82. I have had regard to s 17A Crimes Act 1914 (Cth). I am satisfied having considered all other available sentences that no sentence other than imprisonment is appropriate in all the circumstances of the case, for the reasons I have given in this judgment.

83. Mr Bellahcene is convicted.

84. I impose a term of imprisonment of 3 years to date from 8 April 2022.

85. Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 7 October 2023, having served 18 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 3 years.

86. If the offender fails to comply with the recognisance release order, further action may be taken against him. This may require him to return to court.

Penalty – Mr Perier

87. I have had regard to s 17A Crimes Act 1914 (Cth) and s 5 Crimes (Sentencing Procedure Act 1999. I am satisfied having considered all other available sentences that no sentence other than imprisonment is appropriate in all the circumstances of the case, for the reasons I have given in this judgment.

88. Mr Perier is convicted.

89. I make a finding of special circumstances. This is Mr Perier’s first time in custody, he has no family in Australia and he has addiction issues. In combination, these factors warrant a longer period of supervision on parole.

90. For the state offence, taking into account the matters on the Form 1, I impose a term of imprisonment of 2 years with a non-parole period of 1 year to date from 8 July 2021. The head sentence will expire on 7 July 2023 and the non-parole period will expire on 7 July 2022.

91. For the federal offence, I impose a term of imprisonment of 2 years and 6 months to date from 8 January 2022.

92. Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 7 January 2023, having served 12 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 3 years.

93. If the offender fails to comply with the recognisance release order, further action may be taken against him. This may require him to return to court.

94. The total effective term of imprisonment I have imposed on Mr Perier is 3 years with a non-parole period of 18 months.

95. I have considered s 66 Crimes (Sentencing Procedure) Act 1999 and decline to make an order that the sentence be served by way of an Intensive Corrections Order (ICO) for the following reasons. First, Mr Perier has few family and community ties in Australia to satisfy me that the community would be adequately protected, and second, in all of the circumstances an ICO would not be a penalty of appropriate severity.

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Decision last updated: 22 November 2022