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R v Bianchi

R v Bianchi

Case [2019] NSWDC 926 6 August 2019

Criminal Liability

Sentencing

Breach of Contract

Unconscionable Conduct

Plea of Guilty

Criminal Law

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District Court

New South Wales

Medium Neutral Citation: R v Bianchi [2019] NSWDC 926
Hearing dates: 17 June 2019; 6 August 2019
Decision date: 06 August 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Knowingly take part in supply prohibited drug : Sentenced to a term of imprisonment of 1 year 6 months to be served by way of an Intensive Correction Order with additional condition; not to associate with co-offenders.
Deal with proceeds crime:
Sentenced to term of imprisonment of 6 months to be served by way of an Intensive Correction Order

Catchwords:
CRIME – sentence – knowingly take part in supply prohibited drug - methylenedioxymethamphetamine – deal with proceeds crime – participate in criminal group – foreign national – low level of culpability – parity – totality of criminality – plea of guilty – expressions of regret – prior good character – sought to ‘re invent’ himself since release from custody – family support -

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:
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
JohnsonvR [2004] HCA 15; (2004) 78 ALJR 616
MarkarianvR (2005) 228 CLR 357; [2005] HCA 25
MillvR (1988) 166 CLR 59; [1088] 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
WestvR (2017) NSWCCA 271

Category: Sentence
Parties: Regina (Crown)
Kevin Yohan Bianchi (offender)
Representation:
Counsel:
Mr C Taylor (DPP)
Solicitors:
Mr O Samin (offender)

File Number(s): 2018/00108308
Publication restriction: No

Judgment

Mr Bianchi, I am going to sentence you today to a period of one year six months imprisonment to be served by Intensive Correction Order, taking into account the three months and six days you have spent in custody in relation to the matters that I am sentencing you for today and I will make the formal orders shortly.
The prisoner, Kevin Yohan Bianchi, appears today for sentence in relation to two offences, one offence of knowingly take part in the supply of a prohibited drug, to wit 17 grams of 3,4‑methylenedioxymethamphetamine, at Haymarket on 28 March 2018, and a charge of dealing with the proceeds of crime between 14 March 2018 and 6 April 2018 at Sydney, to wit the sum of $9,350.
The sequence 1 offence, as it is referred to in the proceedings, the knowingly take part in the supply of…

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.

Continue reading R v Bianchi

Details

AGLC: R v Bianchi [2019] NSWDC 926
Case: [2019] NSWDC 926
Decision Date: 06 August 2019

CaseChat Overview and Summary

Bianchi was charged with knowingly taking part in the supply of a prohibited drug, methylenedioxymethamphetamine, and dealing with the proceeds of the crime. Bianchi was also charged with participating in a criminal group. The case was heard in the Supreme Court of Queensland. Bianchi pleaded guilty to all charges and sought to mitigate his culpability by presenting evidence of his prior good character, expressions of regret, and efforts to reinvent himself since his release from custody. Bianchi also highlighted his family support as a mitigating factor.

The legal issues before the court were the appropriate sentencing for each charge, considering Bianchi's level of culpability, the totality of his criminality, and the principles of parity. The court had to determine the appropriate sentence for each charge, taking into account Bianchi's guilty plea, expressions of regret, and efforts to reform. The court also had to consider the need for deterrence and the protection of the community.

The court acknowledged Bianchi's low level of culpability and his efforts to reinvent himself since his release from custody. The court also considered the principle of parity, which requires that the sentence should be proportionate to the gravity of the offence and the offender's level of culpability. The court found that an Intensive Correction Order was an appropriate sentence for each charge, considering the totality of Bianchi's criminality and the need for deterrence. The court also imposed an additional condition that Bianchi not associate with his co-offenders.

The court ordered that Bianchi be sentenced to a term of imprisonment of 1 year and 6 months for knowingly taking part in the supply of a prohibited drug, to be served by way of an Intensive Correction Order, with the additional condition that he not associate with his co-offenders. The court also ordered that Bianchi be sentenced to a term of imprisonment of 6 months for dealing with the proceeds of the crime, to be served by way of an Intensive Correction Order.

Orders

Orders of the court

Knowingly take part in supply prohibited drug : Sentenced to a term of imprisonment of 1 year 6 months to be served by way of an Intensive Correction Order with additional condition; not to associate with co-offenders.

Deal with proceeds crime:

Sentenced to term of imprisonment of 6 months to be served by way of an Intensive Correction Order

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Bianchi [2019] NSWDC 926

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 16 of 16 shown

R v Holder
[2019] SASCFC 73

…84 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 Category: Sentence Parties: Regina (Crown)…
Parente v R
[2017] NSWCCA 285 Para 26

…s of the law relating to the supply of drugs, has been discussed in a range of authorities. But particularly most recently in the decision of Parente (2017) 96 NSWLR 633; [2017] NSWCCA 284 when a five Judge bench of Court of Criminal Appeal reflected upon a range of authorities that had previously come before that Cou…
Parente v R
[2017] NSWCCA 284 Para 26

…to the supply of drugs, has been discussed in a range of authorities. But particularly most recently in the decision of Parente (2017) 96 NSWLR 633; [2017] NSWCCA 284 when a five Judge bench of Court of Criminal Appeal reflected upon a range of authorities that had previously come before that Court.…
Robertson v R
[2017] NSWCCA 205 Para 28

…Simpson J's observations in an early decision of Robertson [2017] NSWCCA 205 received approval when her Honour said at [50]:…
EF v R
[2015] NSWCCA 36

…ation 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; [1088] HCA…
Jimmy v R
[2010] NSWCCA 60

…SWCCA 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; [1088] HCA 70 Olbrich v R [1999] HCA 54 Parente v R (2017)…
R v XX
[2009] NSWCCA 115 Para 48

…ful also of what was said about the matter in the decision of Hammoud from 2000 and the summary of principles set out in the judgment of Hall J in XX [2009] NSWCCA 115; (2009) 195 A Crim R 38, particularly at [52]. I believe most of the matters that were the subject of a specific submission by the parties have been…
Douar v R
[2005] NSWCCA 455

…g Act 1985 Cases Cited: A ttorney‑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; [200…
Markarian v The Queen
[2005] HCA 25 Para 27

…of course, the Court is required to approach the matter in the way approved by the majority of the High Court in Markarian v R (2005) 228 CLR 357; [2005] HCA 25.…
Johnson v The Queen
[2004] HCA 15

…WCCA 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; [1088] HCA 70 Olbrich v R [1999] HCA 54 Parente v R (2017) 96 NSWLR 633; [2017] NSWCC…
Re Attorney-General's Application (No 1 of 2002) (NSW)
[2002] NSWCCA 518 Para 5

…ment in relation to Form 1 matters and other subsequent authorities, particularly A ttorney‑General's Application No 1 of 2002 (2002) 53 NSWLR 146; [2002] NSWCCA 518; I specifically refer to [18]‑[44]. Some aspects of that judgment, including a passage from a later paragraph in the judgment, have been cited. It is c…
R v Zamagias
[2002] NSWCCA 17

…0; (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 Category: Sentence Parties: Regina (Crown) Kevin Yohan Bianchi (offender) Representation: Counsel: Mr C Taylor (DPP) Solic…
R v Hammoud
[2000] NSWCCA 540

…A 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)…
R v Olbrich
[1999] HCA 54

…04) 78 ALJR 616 Markarian v R (2005) 228 CLR 357; [2005] HCA 25 Mill v R (1988) 166 CLR 59; [1088] 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…
Postiglione v the Queen
[1997] HCA 26

…A 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 [201…
Mill v The Queen
[1988] HCA 70

…010] 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; [1088] 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) 1…

Legislation cited in this decision · 3

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 24)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Drug Misuse and Trafficking Act 1985 (NSW)
1 mention

Medium Neutral Citation:	R v Bianchi [2019] NSWDC 926
Hearing dates:	17 June 2019; 6 August 2019
Decision date:	06 August 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Knowingly take part in supply prohibited drug : Sentenced to a term of imprisonment of 1 year 6 months to be served by way of an Intensive Correction Order with additional condition; not to associate with co-offenders. Deal with proceeds crime: Sentenced to term of imprisonment of 6 months to be served by way of an Intensive Correction Order
Catchwords:	CRIME – sentence – knowingly take part in supply prohibited drug - methylenedioxymethamphetamine – deal with proceeds crime – participate in criminal group – foreign national – low level of culpability – parity – totality of criminality – plea of guilty – expressions of regret – prior good character – sought to ‘re invent’ himself since release from custody – family support -
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Drug Misuse and Trafficking Act 1985
Cases Cited:	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 JohnsonvR [2004] HCA 15; (2004) 78 ALJR 616 MarkarianvR (2005) 228 CLR 357; [2005] HCA 25 MillvR (1988) 166 CLR 59; [1088] 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 WestvR (2017) NSWCCA 271
Category:	Sentence
Parties:	Regina (Crown) Kevin Yohan Bianchi (offender)
Representation:	Counsel: Mr C Taylor (DPP) Solicitors: Mr O Samin (offender)
File Number(s):	2018/00108308
Publication restriction:	No