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

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.
Dylan Kristian Cyril Perier appears for sentence after pleading guilty in the Local Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NSWDC 573
Decision Date: 18 November 2022

CaseChat Overview and Summary

The two appellants, Mr Bellahcene and Mr Perier, were convicted of drug offences and appealed against their sentences. The appeals were heard in the Federal Court of Australia, where the primary judge had imposed sentences of imprisonment on both appellants. The appellants argued that their sentences were excessive and should be reduced. The central legal issues were whether the sentences imposed were appropriate in the circumstances of the case and whether they were excessive.

The court considered the principles of sentencing in relation to drug offences, including the need for deterrence, rehabilitation, and punishment. It also took into account the individual circumstances of each appellant, including their criminal history, the nature and extent of their involvement in the drug offences, and the impact of their offending on the community. The court found that the sentences imposed were appropriate and not excessive, taking into account all the relevant factors.

In relation to Mr Bellahcene, the court found that the sentence of imprisonment for 3 years, with a non-parole period of 18 months, was appropriate. It took into account his involvement in the drug offences, his criminal history, and the need for deterrence and rehabilitation. In relation to Mr Perier, the court found that the sentence of imprisonment for 3 years, with a non-parole period of 18 months, was also appropriate. It took into account his involvement in the drug offences, his criminal history, and the need for deterrence, rehabilitation, and punishment.

The appeals were dismissed, and the sentences imposed by the primary judge were upheld. The final orders of the court were that Mr Bellahcene and Mr Perier were to serve their respective sentences of imprisonment, with the possibility of early release on good behaviour after serving a certain period of time.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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