R v Lorenzo Fiordelli - [2020] NSWDC 154

District Court

New South Wales

Medium Neutral Citation: R v Lorenzo Fiordelli [2020] NSWDC 154
Hearing dates: 11 March 2020
Date of orders: 20 April 2020
Decision date: 20 April 2020
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
Pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate sentence of 20 months imprisonment to be served by way of an Intensive Correction Order. Full orders set out at [121]–[127].

Catchwords:
CRIME – importing tobacco products with intent to defraud revenue – substantial amount of money defrauded

SENTENCING – application of the principle of parity where co-offenders sentenced to full-time imprisonment

SENTENCING – availability of an Intensive Correction Order where excellent rehabilitation has been demonstrated
SENTENCING – relevance of the COVID-19 pandemic on sentence
Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), s 66
Criminal Code (Cth), s 11.2A(1)
Customs Act 1901 (Cth), s 233BABAD(1)
Cases Cited: Brown v R [2020] VSC 60
Casella v R [2019] NSWCCA 201
Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Director of Public Prosecutions v Dalgliesh [2017] 91 ALJR 1063
DPP (Cth) v Politopoulos [2020] VCC 338
DPP v Morey (a pseudonym) [2020] VCC 320
DPP v Tennison [2020] VCC 343
Markarian v The Queen (2005) 228 CLR 357
Mill v R [1988] 166 CLR 59
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
Todd v R [1982] 2 NSWLR 517
Texts Cited:
New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017 (Mark Speakman, Attorney-General) 274
World Health Organization report, Preparedness, prevention and control of COVID-19 in Prisons and Other Places of Detention (2020): Interim Guidance, dated 15 March 2020
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
Lorenzo Fiordelli
Representation: R McCaw (CDPP)
G D Wendler (Offender)

File Number(s): 2018/00164001

Judgment

The offender comes before me to be sentenced in respect of six offences of jointly importing tobacco products with intent to defraud revenue. The offences are contrary to s 233BABAD(1) of the Customs Act 1901 (Cth) and s 11.2A(1) of the Criminal Code (Cth) and each carries a maximum penalty of 10 years imprisonment and/or a fine of $180,000.
When I sentence the offender for sequence 1, I take into account a further offence of jointly importing tobacco products with intent to defraud revenue (sequence 2) which is contained on a s 16BA schedule.
The offender pleaded guilty at the first opportunity and I am satisfied that the utilitarian value of the plea warrants a reduction in sentence by 25%.
The case against him was a strong Crown case. However, I am satisfied having regard to the evidence before me that the plea of guilty also reflects remorse and contrition and an acceptance of responsibility for his criminal acts.
Two co-offenders have been sentenced. Qing Shi…

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: [2020] NSWDC 154
Decision Date: 20 April 2020

CaseChat Overview and Summary

Lorenzo Fiordelli, the appellant, faced charges related to the importation of tobacco products with the intent to defraud revenue. The case was heard in the District Court of New South Wales. The primary issue before the court was the appropriate sentence to be imposed on Fiordelli, considering the nature of the offence and the principle of parity in sentencing co-offenders, as well as the impact of the COVID-19 pandemic on sentencing considerations.

The court considered whether Fiordelli's demonstrated excellent rehabilitation warranted the imposition of an Intensive Correction Order (ICO) instead of full-time imprisonment. Given the substantial amount of money defrauded, the court had to balance Fiordelli's rehabilitation against the seriousness of the crime. The COVID-19 pandemic was also a factor, as the court recognised the unique challenges it posed to the correctional system and Fiordelli's potential risk of contracting the virus in prison.

The court held that Fiordelli's case warranted a sentence that reflected both the seriousness of the offence and his demonstrated rehabilitation. The principle of parity in sentencing co-offenders meant that Fiordelli's sentence should be comparable to those of his co-offenders. However, Fiordelli's excellent rehabilitation and the impact of the COVID-19 pandemic led the court to conclude that an ICO was more appropriate. The court imposed an aggregate sentence of 20 months imprisonment to be served by way of an ICO. Full orders were set out at [121]–[127].

Orders

Orders of the court

Pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate sentence of 20 months imprisonment to be served by way of an Intensive Correction Order. Full orders set out at [121]–[127].

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 Lorenzo Fiordelli [2020] NSWDC 154
Hearing dates:	11 March 2020
Date of orders:	20 April 2020
Decision date:	20 April 2020
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	Pursuant to s 68 of the Crimes (Sentencing Procedure) Act 1999 (NSW), I impose an aggregate sentence of 20 months imprisonment to be served by way of an Intensive Correction Order. Full orders set out at [121]–[127].
Catchwords:	CRIME – importing tobacco products with intent to defraud revenue – substantial amount of money defrauded SENTENCING – application of the principle of parity where co-offenders sentenced to full-time imprisonment SENTENCING – availability of an Intensive Correction Order where excellent rehabilitation has been demonstrated SENTENCING – relevance of the COVID-19 pandemic on sentence
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 66 Criminal Code (Cth), s 11.2A(1) Customs Act 1901 (Cth), s 233BABAD(1)
Cases Cited:	Brown v R [2020] VSC 60 Casella v R [2019] NSWCCA 201 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301 Director of Public Prosecutions v Dalgliesh [2017] 91 ALJR 1063 DPP (Cth) v Politopoulos [2020] VCC 338 DPP v Morey (a pseudonym) [2020] VCC 320 DPP v Tennison [2020] VCC 343 Markarian v The Queen (2005) 228 CLR 357 Mill v R [1988] 166 CLR 59 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 Todd v R [1982] 2 NSWLR 517
Texts Cited:	New South Wales, Parliamentary Debates, Legislative Assembly, 11 October 2017 (Mark Speakman, Attorney-General) 274 World Health Organization report, Preparedness, prevention and control of COVID-19 in Prisons and Other Places of Detention (2020): Interim Guidance, dated 15 March 2020
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Lorenzo Fiordelli
Representation:	R McCaw (CDPP) G D Wendler (Offender)
File Number(s):	2018/00164001