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

1. 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.

2. 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.

3. 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%.

4. 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.

5. Two co-offenders have been sentenced. Qing Shi was sentenced on 21 October 2019 by Acting Judge Armitage. That offender was not sentenced in relation to Consignment 5. The sentence imposed was 18 months imprisonment to be released on recognizance after serving 9 months in custody.

6. On 9 December 2019, the co-offender Salvatore Alfonso was sentenced by her Honour Judge Shead to 20 months imprisonment, to be released on recognizance after serving 10 months in custody. The principle of parity arises and will be considered more fully below.

Facts

7. The circumstances giving rise to the offences are set out in a statement of agreed facts. The agreed facts can be summarised as follows.

8. Between May 2016 and August 2016, the offenders together imported tobacco products, namely cigarettes, without declaring the importation or paying the required duties in order to sell those cigarettes in Australia. Australian Border Force (‘ABF’) discovered and seized six separate consignments of cigarettes that had been imported. Across these six consignments, a total of 3,872,240 cigarette sticks were imported.

9. The offenders set up a system which enabled them to work together to unlawfully import the tobacco products from China into Australia. The system involved Shi travelling to China, finding Chinese sellers of tobacco products and organising agents in China to deal with customs and export the cigarettes to Australia. I note that Shi was not involved in the importation of Consignment 5, a consignment that originated in the United Arab Emirates.

10. The offenders arranged for pallets of cigarette cartons to be sent by air freight, and they created documents that would falsely describe the contents as various products such as coffee cups or plastic bags. They addressed the consignments to a variety of different companies, some of which were owned by Mr Alfonso.

11. WeChat messages sent between the offenders discussed how they were selling illegal tobacco. Shi and Alfonso discussed the drafting of documents typically associated with importing and exporting goods so that the importations appeared legitimate, and how to pack the consignments so as to obscure the cigarette cartons in the event of inspection by authorities. There was also discussion about using legitimate companies with legitimate logos to avoid detection.

12. Mr Alfonso and this offender discussed sourcing items such as plastic containers and cups, attending to the location of the recently imported consignments and taking possession of the imported cigarettes, and discussed at various times selling the cigarettes in Australia. These discussions included the demand for cigarettes and the profits they could expect to make.

13. Until about June 2016, the offenders used the freight forwarding and customs broking company, CT Freight. This offender worked for that company until about June 2016 and had after-hours access to its warehouse premises. Once the consignment arrived at CT Freight, the offenders, using this offender’s access, removed the cigarettes from the consignments.

14. If the consignments were still under bond, the offenders removed the cigarettes and replaced them with items that would roughly match the description on the importation documents. Accordingly, if the consignment was searched by ABF officers prior to its release, they would not detect the imported cigarettes. Consignments 1 and 2 were imported in this way.

15. The offenders stopped using CT Freight from June 2016 and started using a freight forwarding company they had created themselves and which this offender and Mr Alfonso operated. This company was called QSL Freight Forwarding (‘QSL’). Mr Alfonso was the sole director and company secretary. Mr Shi was a company secretary when the company was formed but resigned his office on the same day.

16. On 8 June 2016, QSL had its application for a s 77G depot licence application approved, allowing the company to hold imported goods that are still subject to customs control and for those goods to be examined by ABF officers at the company’s location.

17. Once the consignment was delivered to QSL the offenders had direct access to the tobacco and could swap out the cigarettes. Consignments 3 to 5 were imported in this way.

18. Consignment 6 involved the use of a different freight forwarding company, but the offenders again used a fake delivery address so that the cigarettes could be retrieved by them.

Consignments 1 and 2

19. On 22 May 2016 a consignment arrived in Australia addressed to CT Freight. That consignment came from China. The description of the imported goods was “plastic bags and containers”.

20. On 23 May ABF officers attended CT Freight premises and located the consignment. Subsequent deconstruction and counting of the cigarettes revealed 256,000 cigarette sticks.

21. An electronic packing list for this consignment was located on a computer belonging to Shi. The author of the document is recorded as Mr Shi.

22. On 25 May 2016, a further consignment arrived in Australia from China. It was also addressed to CT Freight. The description of the imported goods was “plastic rubbish bags”. On 25 May ABF officers attended the premises and located the consignment. They located 240,000 cigarette sticks. An electronic commercial invoice in relation to this consignment was found on a computer belonging to Mr Shi who is recorded as the author of that document.

23. This offender was an employee of CT Freight at the relevant time. His employment facilitated the housing of these consignments at that warehouse. Clearly, he abused his position of trust which increases the objective seriousness of these two offences.

Consignment 3

24. On 26 June 2016 a consignment arrived in Australia from China, this consignment was addressed to the freight forwarding company QSL. The description of the imported goods was “plastic container”.

25. On 28 June 2016 officers located the consignment and discovered a total of 650,840 cigarette sticks. Located on a computer belonging to Mr Shi was a copy of an electronic commercial invoice and packing list purportedly issued by the consignor, but the author of the document is recorded as Mr Shi.

26. On 24 June Alfonso messaged a photograph of a notebook entry containing fake details for Coffee Tea & Me, to this offender to provide him with details. A tax invoice issued by a customs broker relating to this consignment was found in this offender’s car.

Consignment 4

27. On 30 July 2016 a consignment arrived in Australia from China addressed to QSL Freight Forwarding, with the ultimate consignee recorded as an address which was a company solely owned by Mr Alfonso.

28. ABF officers attended the Qantas Freight Sydney Terminal and located the consignment and the cigarettes within. The boxes were repacked and the consignment was placed in the Qantas Freight deadhouse and secured. Subsequent deconstruction revealed 1,665,600 cigarette sticks.

29. On 31 July, Alfonso enquired as to the status of the consignment. On 1 August both this offender and Shi separately attempted to collect the consignment. The freight was provided to this offender at about 11:20 AM on that day. ABF officers later attended to find that the consignment was no longer in the Qantas Freight deadhouse. Later that afternoon, ABF officers attended QSL Freight Forwarding and located the consignment which still contained the cigarettes.

30. The company, Capo Di Tutti Capi Pty Ltd, has been owned solely by Mr Alfonso since its registration. Examination of Mr Shi’s mobile phone revealed that he was tracking the consignment from its departure in China to its arrival in Australia.

Consignment 5

31. On 5 August a consignment arrived in Australia from the United Arab Emirates. The consignment was addressed to QSL Freight Forwarding with the ultimate consignee recorded as AussieWide Enterprises. This company was registered in July 2015 with this offender listed as a director and company secretary from 22 July 2015 to 1 August 2016.

32. The description of the imported goods was “new phone accessories”. On 6 August ABF officers located the consignment and upon examination discovered 800,000 cigarette sticks.

33. Multiple documents relating to this consignment were located in a car used by this offender as was a tax invoice issued by a customs broker to QSL relating to the consignment.

34. Mr Shi was not involved in this consignment.

Consignment 6

35. On 11 August 2016 a consignment arrived in Australia from China addressed to a freight forwarding company ACE Global Logistics. The description of the imported goods was “disposable plastic container”. On 11 August ABF officers attended the Qantas Freight Terminal and located the consignment, discovering 259,800 cigarette sticks.

36. The evidence reveals that the offenders used fake details in relation to the ultimate consignee to facilitate the importation of that consignment.

37. On 10 August 2016 warrants were executed on the residential addresses of the offenders and the freight forwarding company. This offender participated in a record of interview and told police that he worked at QSL since January 2016. Alfonso owned the company and was the boss, but he admitted that he was very involved with the decision-making process in the company. He also admitted that he formerly worked as a subcontractor with CT Freight up until three months earlier. He told police that back in the “olden days” he used to import cigarettes legally through companies that he owned, namely, Aussiewide Enterprises and Nikos Transport.

38. He initially denied knowing Shi but later agreed he had been communicating with him.

Objective Seriousness

39. I must sentence the offender in accordance with Part 1B of the Crimes Act 1914 (Cth). I must take into account the matters listed in s 16A(2)(a) insofar as they are relevant and known to the Court.

40. The offences are effectively offences against revenue. The relevant factors in informing the assessment of objective seriousness were summarised in the decision of R v Zhang [2017] 265 A Crim R 113. They include the role of the offender, the sophistication of the offending, the period over which the offences were committed, the quantity of tobacco imported, the amount of duty evaded, whether the revenue loss has been repaid, whether the offending involved other illegality such as the use of false identities, whether the offender was involved in the distribution and sale of tobacco products within Australia, and the extent to which the offender gained financially from his offending.

41. The offender gave evidence during the course of the proceedings. He said that he became involved in the offences at a time when he was in financial distress. He discussed his debts with Mr Alfonso because they had known each other from a period when they both were involved in the trucking industry. The offender was introduced to Mr Shi through Mr Alfonso. Mr Shi raised the prospect of importing tobacco from overseas to sell in Australia for profit.

42. The idea was an attractive one, having regard to the offender’s significant debts. He was not engaged in the sourcing of the tobacco. Instead, his joint responsibility was to provide premises to warehouse the consignments. It was agreed that he would get a percentage of the profits. He candidly admitted that he had made some $65,000 from the importation of tobacco products that he used to pay off his debts. The benefit that accrued to him was not insignificant. The fact that he engaged in the conduct for financial reward is a matter that increases the objective seriousness of the offences. However, I am satisfied that the financial benefit was used to pay the debilitating debts that he had accrued. This is not a case where he engaged in the criminality in an effort to enrich himself or live a lavish lifestyle.

43. While the principle of parity obviously applies, I must proceed to assess the offender’s role and the objective seriousness of the offences to which he has pleaded guilty on the basis of the evidence before me. The offender impressed me as an honest witness. Some of his responses were against interest particularly in respect of the amount of the financial reward. It is unlikely that the prosecution could have established the extent of the financial gain without his evidence.

44. There was some suggestion in the sentence proceedings of Qing Shi that he was recruited by this offender and Mr Alfonso. However, the evidence given by this offender under oath is that Mr Shi introduced the idea of importing tobacco to make money. Further, it was Mr Shi who used his contacts and language skills to source of the tobacco products from China in relation to five of the six consignments. I am satisfied on the evidence before me that Mr Shi initiated the enterprise although this offender quickly and fully participated.

45. The offending involves sourcing supplies from agents in China and, on one occasion, from the United Arab Emirates.

46. In respect of each offence the offender was aware of the scope of the offending and had a key and distinct role that was necessary for the offending to occur. His role involved engaging in WeChat conversations with Mr Alfonso in relation to selling the cigarettes for profit and discussing demand. In respect of Consignments 1 and 2 he used his position with CT Freight to gain access to the warehouse and he attended the warehouse to remove the cigarettes and replace the contents with apparently genuine items. This was a breach of trust, a matter that increases the objective seriousness of those offences.

47. Thereafter he was jointly engaged in operating the company QSL Freight Forwarding and was in possession of importation documents in relation to Consignments 3 and 5. He attended at the Qantas terminal to collect Consignment 4 and he used his position as Director and Secretary for the company Aussiewide Enterprises in relation to Consignment 5.

48. The offending took place over a not insignificant period of about 3 months. While there was some degree of organisation and planning involved, I am not persuaded that the offending reached a level of sophistication beyond that inherent in offences of this type. Furthermore, unlike other cases of this kind which come before the courts, the syndicate in this case did not involve the importation of other substances or other offending, for example, in the nature of money laundering.

49. I am satisfied that the offender’s role was important but cannot find that his role was as a “senior member in the syndicate”. I respectfully agree with the findings made by her Honour Judge Shead rejecting the Crown’s submission in that case that the offender was a senior member of the syndicate with his co-offenders. As her Honour pointed out, a finding that they were senior members of the syndicate is not open in circumstances where there is no material suggesting that there were any other members in the syndicate. Put another way, there is an absence of material from which to compare this offender’s position with the positions of other members of the syndicate.

50. The Crown, in this Court, did not submit that the offender was a senior member in the hierarchy but rather that all three offenders played critical and essential roles in the enterprise.

51. In respect of Consignments 1, 2, 3, 4 and 6, I do not agree that this offender’s role is comparable to that of Mr Shi. On the evidence that has been adduced before me in the sentence proceedings, Mr Shi’s role in these particular offences was slightly higher having regard to the fact that it was he who travelled to China, he who sought out the Chinese sellers, and he who organised the agents in China to deal with Customs. This offender had no role to play in any of those tasks.

52. I am satisfied that this offender played an essential role in the enterprise and that his role is comparable to that of his co-offender Mr Alfonso. There is little to distinguish their objective roles.

53. Overall, I am satisfied that the offences fall around the middle of the range of objective seriousness. The offences involved a significant amount of tobacco sticks and as a result a significant amount of revenue was avoided.

54. In my view, the most objectively serious offence is sequence 4 which involved the importation of 1,665,600 cigarettes sticks with an amount payable of $984,474.54. Count 5 is the next most objectively serious offence having regard to the amount of cigarette sticks and revenue defrauded.

55. Although sequence 1 involved a significantly lesser quantity of cigarettes sticks, in sentencing the offender for this offence I must have regard to the additional criminality involved in the s 16BA schedule charge. Furthermore, the objective seriousness of these two offences is increased by reason of the fact that the offender used his employment to facilitate the receipt of the consignments.

56. Deliberately defrauding revenue is a serious offence, particularly where the amount involved is large. Considerations of general deterrence and denunciation are relevant and important considerations which I have taken into account in determining the appropriate penalty. The criminality is often difficult to detect and it behoves the courts to ensure that the penalties imposed on those who are caught are high enough to operate as a real disincentive to others tempted to offend.

39. It is clear that the insertion of s 233BABAD into the Customs Act 1914 (Cth) constituted a measured and important attempt by the government to reduce the illegal importation of tobacco into Australia so as to minimise the health risks associated with evasive and unchecked practices.

Subjective Circumstances

58. The offender was born in Tripoli, Lebanon, and is the oldest of four children. He was four years old when the family moved to Qatar to be with his father who was employed there. Following financial losses, the offender, his siblings and their mother were forced to return to Lebanon. The offender was about 9 years old at the time. He described his father as irresponsible and abandoning both his family and his responsibilities.

59. It would appear that following these financial troubles his father essentially disappeared from their lives. The offender gave evidence that there was essentially no relationship whatsoever with his father having regard to his father’s absence. His mother was his main support and she provided for the family. Throughout his childhood there were periods of fighting in the war in his home town of Tripoli. It was part of the routine of daily life, although it led to instability in his schooling and home life.

60. The offender was 15 years old when his father died of a heart attack. From a relatively young age the offender became responsible for his family and siblings. From about the age of 15 he wanted to work to assist his family financially. He commenced a course in mechanical engineering which he studied part-time for three years while working.

61. Upon leaving school, he travelled to Greece to work in the hospitality industry and provide financially for his family. It was in 1998 that he migrated to Australia. He was married and had three children.

62. At about the age of 32 his marriage broke down and initially he lost custody of his three daughters. They were returned to his custody in 2010 and he described a good relationship with them. They currently reside with his mother in Lebanon.

63. Following his separation, he began using cocaine. Initially he used the drug on a monthly basis but his use began to escalate, to a point in 2016 when he was using the drug every day. The offender admits that his drug use reached a point when it was out of control and he was struggling to manage it. Clinical psychologist, Clara Fritchley, states that the offender meets the criteria for a cocaine use disorder.

64. When the authorities executed a search warrant at his premises on 10 August 2016, they located an amount of cocaine. He was charged with deemed supply and dealt with by way of an Intensive Correction Order in 2018. At the time of the commission of the present offences, he had no prior record and was a person of good character.

65. Following the raid by the authorities, the offender accessed treatment with a psychologist to address his cocaine dependence. His cocaine use decreased and he has been abstinent for a period of over one year.

66. During the assessment, he presented with symptoms of depression and anxiety and expressed a great deal of guilt and shame. I am satisfied that the offender is genuinely and deeply remorseful.

67. I accept the account given to the psychologist, as confirmed by the offender during his sworn evidence, that he became involved in the offences at a time when he was in considerable debt and struggling to repay it. He minimised the nature of his conduct to himself by reassuring himself that tobacco is a legal product. That was his state of mind during the commission of the offences. However, he has, since that time, developed a great deal of insight into the wrongfulness of his conduct.

68. Although he was interviewed about the tobacco products by the authorities on 10 August 2016, court attendance notices did not issue until May 2018, nearly 2 years after the initial interview. He is being sentenced today, 22 April 2020, a total delay of about 3 years 8 months.

69. Delay can be taken into account in respect of any demonstrated progress of the offender towards rehabilitation during the intervening period. Furthermore, sentencing for a stale crime (here, the offences were committed nearly four years ago) does call for a measure of understanding and flexibility of approach: Todd v R [1982] 2 NSWLR 517; Mill v R [1988] 166 CLR 59.

70. I accept that it is not uncommon for there to be a delay of nearly 2 years in investigations relating to the importation of tobacco products with intent to defraud revenue. However, the total period between first interview and sentence is relevant having regard to the excellent rehabilitation demonstrated by the offender. He opened a bakery in which he works seven days a week for some 15 to 16 hours per day. He employs six people who are dependent upon that employment.

71. He has remained abstinent and has not reoffended. He is assessed as a low risk of reoffending and I am satisfied that he has demonstrated excellent rehabilitation and is unlikely to reoffend.

72. I am required to impose a sentence or make an order that is of a severity appropriate in all of the circumstances of the offence. I have had regard to the objective seriousness of the offences, the offender’s subjective case and the relevant sentencing principles. Having considered all possible alternatives I am satisfied that the only appropriate penalty is one of imprisonment. I am also satisfied that I should proceed by way of an aggregate sentence. There is no issue that I can impose an aggregate sentence in accordance with s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW): Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301.

73. I am satisfied that the aggregate sentence should reflect a measure of accumulation having regard to the discrete offending conduct. However the extent of that accumulation is modest because each offence was a contravention of the same provision and the conduct represented overlaps to a degree. In determining the aggregate sentence I have also had regard to the principle of totality and the requirement that I impose a proportionate sentence in all the circumstances.

Full-Time Imprisonment or an ICO?

74. On behalf of the offender, I am urged to consider the imposition of an Intensive Correction Order (‘ICO’) as an appropriate penalty in this case particularly having regard to the delay and the excellent rehabilitation demonstrated by the offender. Further, having regard to the sentences imposed on the co-offenders, 20 months and 18 months respectively, Mr Wendler submits that it is open to impose a term of imprisonment to be served in the community.

75. The Crown submits that the only appropriate penalty is one of full-time imprisonment and that I would be falling into appellable error were I to proceed by way of ICO. In support of that contention, the Crown relies upon the Court of Criminal Appeal decision in R v Saleh [2015] NSWCCA 299.

76. In Saleh, the Crown appealed against a suspended sentence imposed upon the respondent where the amount of tax the object of the defrauding was $996,997.50. In upholding the Crown appeal, Beech-Jones J stated at [7]:

“I also consider that the necessity to correct a trend of first instance decisions that do not treat offences under s 233BABAD(1) on the approximate scale of those committed by Mr Saleh as sufficiently serious to warrant a sentence of full time imprisonment and the need for general deterrence is such that the Director has demonstrated that the discretion to re-sentence should be exercised…”

77. The respondent was resentenced to a term of imprisonment of 3 years, to be released after serving 2 years.

78. In addition, the Crown relies upon a schedule of comparative cases. That schedule contains four cases ranging in sentences from 3 years imprisonment to 2 years imprisonment. Comparative cases provide guidance as to the identification and application of relevant sentencing principles. However, four cases do not establish a discernible sentencing pattern or range that assists me in determining the appropriate penalty

79. Having regard to my findings that this offender’s role is comparable to that of Mr Alfonso, an aggregate sentence in the vicinity of 20 months imprisonment is appropriate having regard to the principles of parity. Consistency in the punishment of offences against the criminal law finds expression in the parity principle which requires that like offenders be treated in a like manner, but also allows for different sentences to be imposed for the same offences to reflect different degrees of culpability and/or different circumstances.

80. As I understand the Crown submissions, the aggregate sentence imposed upon Mr Alfonso is within range in the present case. Further, delay and demonstrated rehabilitation may operate to reduce the length of the total term and/or the non-parole period, although a period of full-time custody is said to be necessary. With respect, I have great difficulty in accepting that imposing a term of full-time imprisonment of some months on this offender will serve to fulfil any of the purposes of sentencing. This is particularly so in circumstances where he has demonstrated excellent rehabilitation, is abstinent from drug use and operates a business that employs six individuals whose families depend upon that employment.

81. I have given a great deal of consideration to the submissions made on behalf of the Crown and the principles enunciated in the case of Saleh. There is no doubt that these offences are serious, committed for financial reward. General deterrence is an important consideration, but not the only sentencing consideration. Rehabilitation, and the protection of the community that successful rehabilitation affords, is also a relevant and important matter.

82. The Court in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 stated at [124]:

“By contrast to deterrence, rehabilitation has as its purpose the remodelling of a person thinking and behaviour so that they will, notwithstanding past offending, re-establish themselves in the community with a conscious determination to denounce the wrongdoing and establish (or re-establish) themselves as an honourable law-abiding citizen…”

83. While there must be consistency in sentencing federal offenders, the administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion ensuring justice in that case: Director of Public Prosecutions v Dalgliesh [2017] 91 ALJR 1063 (at [49]).

84. In R v Pullen [2018] NSWCCA 264, Harrison J had occasion to consider what were relatively new amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW), stating that the result of the amendments is that, in cases where an offender’s prospects of rehabilitation are high and where their risk of reoffending will be better managed in the community, an Intensive Correction Order may be available even if it may not have been under the old scheme. His Honour went on to state that the new scheme makes community safety the paramount consideration: [89].

85. In R v Fangaloka [2019] NSWCCA 173, Basten JA (Johnson and Price JJ agreeing) said that the concept of community safety identified in s 66 undoubtedly covers protection of the community from the offender and the rehabilitation of the offender referred to in ss 3A(c) and (d). His Honour noted that there remains the question as to whether s 66(1) intended to confer paramountcy on community safety over other considerations which must be taken into account. His Honour was in favour of a restrictive rather than facilitative approach, stating that the paramount consideration in considering whether to impose an ICO is the assessment of whether such an order, or full-time detention, is more likely to address the offender’s risk of reoffending. His Honour went on to say: “unless a favourable opinion is reached in making that assessment, an ICO should not be imposed. At the same time, the other purposes of sentencing must all be considered and given due weight”.

86. In Casella v R [2019] NSWCCA 201, Beech-Jones J (N Adams J agreeing) took issue with the interpretation placed on s 66 in Fangaloka. His Honour stated that, on its face,

“s 66(2) only requires an assessment of whether making the order or serving the sentence by way of full-time detention is more likely to address the offender’s risk of reoffending. It does not appear to necessarily preclude the imposition of an ICO if, say, the outcome of the assessment is neutral because the offender has good prospects of rehabilitation and does not present a danger to the community, irrespective of whether he or she is incarcerated or subject to an ICO. The imposition of an ICO in such a case would still be consistent with community safety. If this is truly the effect of Fangaloka, then I have significant doubts about whether it is correct.”

87. There appears to remain some conflict in the authorities in respect of the interpretation of s 66, notwithstanding the fact that the special leave application to the High Court in Fangaloka was dismissed.

88. I am satisfied that the making of an ICO is more likely to address the offender’s risk of reoffending having regard to his excellent progress and the likelihood that that progress would be better facilitated in the community. The Attorney-General, in the Second Reading Speech for the Bill introducing the relevant amendments to the Crimes (Sentencing Procedure) Act 1999 (NSW), said the following:

“New section 66 of the Crimes (Sentencing Procedure) Act will make community safety the paramount consideration when imposing an intensive correction order on offenders whose conduct would otherwise require them to serve a term of imprisonment. Community safety is not just about incarceration. Imprisonment under two years is commonly not effective at bringing about medium- to long-term behaviour change that reduces reoffending. Evidence shows that community supervision and programs are far more effective at this. That is why new section 66 requires the sentencing court to assess whether imposing an intensive correction order or serving the sentence by way of full-time detention is more likely to address the offender's risk of reoffending.”

89. Ultimately, a balance must be struck and appropriate weight must be given to all factors which must be taken into account in arriving at the appropriate sentence by way of the instinctive synthesis discussed in Markarian v The Queen (2005) 228 CLR 357. Having done that, I am satisfied that it is appropriate in all of the circumstances to impose a term of imprisonment to be served by way of an Intensive Correction Order.

90. In doing so I have taken into account that an Intensive Correction Order, unlike a suspended sentence, involves the imposition of onerous conditions, such as a community service work component, which not only serve to facilitate rehabilitation but to fulfil the purposes of punishment and general deterrence.

Parity

91. The Crown submits that the case for this offender and the objective gravity of his offending conduct is very similar, almost identical, to that of his co-offender Alfonso, and more serious than that of his co-offender Shi. In respect of the latter submission, the Crown clarified that the submission relates to the fact that Mr Shi was not involved in Consignment 5.

92. The Crown submits that the subjective case of this offender is similar in almost every respect to the case of the co-offenders and in those circumstances the principle of parity requires that I proceed by way of a term of full-time imprisonment.

93. The Crown contends that in the case of Shi and Alfonso, there were immediate relatives with health conditions that “may suffer hardship from the absence of each offender whereas in the case of this offender, it is the employees of his business that may suffer hardship”. The Crown submits that this is a distinction without a difference as far as the weight to be given to these factors is concerned.

94. In the case of Mr Shi, his Honour said that it was not possible to determine that the offender’s mother’s medical condition constituted exceptional hardship to others so as to constitute a mitigating factor on sentence, although took it into account as part of the offender subjective case.

95. In the case of Mr Alfonso, her Honour noted that he shared the caring role of his parents with his brother and referred to the offender’s parent’s ill-health contributing to his anxiety. This was a factor taken into account as part of his subjective case.

96. Hardship to third parties such as to constitute substantial mitigation of sentence is not a finding that was made in the co-offenders’ cases. Nor is it a finding that I make in this case.

97. Instead, when assessing the extent of rehabilitation of this offender, I take into account that it is not limited to abstinence and an absence of reoffending. It extends to the offender commencing and developing a successful small business which provides a livelihood for six (now four) individuals.

98. The Crown also submits that, unlike the co-offenders, this offender has a criminal history. However, the weight to be given to that factor is very limited having regard to the fact that the convictions for supply and possession of prohibited drug arose from the same investigation that led to these proceedings. When the offender committed this offence, he had no prior criminal record.

99. In determining that it is open to proceed by way of an Intensive Correction Order, I am mindful of the principle of parity. In imposing the aggregate sentence, I have taken into account the sentences imposed upon the co-offenders. It is the Crown’s position in these proceedings that it is open to impose a similar aggregate sentence as that imposed upon the co-offenders, albeit that the term of imprisonment should be served by way of full-time custody. No complaint is made about the terms of the aggregate sentences imposed on the co-offenders.

100. I intend to impose a similar aggregate sentence as that imposed on Mr Alfonso. However, I will proceed by way of an Intensive Correction Order because, in my view, there are at least two distinguishing factors.

101. Firstly, in the present case, a great deal of reliance has been placed upon what has been referred to as “delay” and the excellent rehabilitation that has been demonstrated during the period between the offender first being interviewed and sentence.

102. A period of 3 years and 8 months has elapsed between the time the offender was first interviewed by the authorities and the date of sentence. To be clear, I do not intend to convey that this extended period between first interview and sentence is the fault of the authorities. Nor is it the fault of the offender.

103. Having regard to the excellent rehabilitation demonstrated by the offender and in particular the successful business he has embarked upon, I am satisfied that this is a distinguishing factor which leaves open an ICO.

104. Secondly, when the offender was first before the Court, there was little if any information about the COVID-19 pandemic. In the weeks since the matter was first before me, the world-wide crisis brought about by the COVID-19 pandemic has revealed the highly infectious nature of the novel coronavirus.

105. In Australia, extraordinary measures have been taken to restrict individual movement in an effort to reduce the spread of the virus. On 16 April, I received supplementary submissions on behalf of the offender in respect of the impact of COVID-19 and its relevance to the sentence proceedings. On 20 April, I received additional submissions in reply from the Crown.

106. An adjournment was granted so that the defence could put further material before me in relation to COVID-19. The 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 (Exhibit 4), recognises that:

“People deprived of their liberty, such as people in prisons and other places of detention, are likely to be more vulnerable to the coronavirus disease (COVID-19) outbreak than the general population because of the confined conditions in which they live together for prolonged periods of time.”

107. In Rakielbakhour v DPP [2020] NSWSC 323, Hamill J said: “Gaols and similar institutions are particularly susceptible to the rapid spread of the COVID-19 virus”. In doing so his Honour referred to a statement of New South Wales Health dated 20 March 2020, which said: “Based on what we know so far about COVID-19 and what we know about other coronaviruses, those at greatest risk of serious infection are … people living in group settings. This includes … people in detention facilities.”

108. His Honour also referred to information provided by Corrective Services NSW that only one case of COVID-19 had been confirmed in a New South Wales prison, being a health worker at Long Bay Hospital.

109. I am satisfied that the virus causing COVID-19 is highly contagious. Notwithstanding that there has only been one case detected in a prison, gaols and similar institutions are especially susceptible to the spread of this virus having regard to the limited capacity for social distancing: Rakielbakhour v DPP [2020] NSWSC 323 at [14].

110. Corrective Services NSW has seen fit to impose restrictions in an effort to reduce the risk of infection. The extreme nature of these restrictions demonstrates the concern of the authorities about the risk of infection. These measures include the suspension of family visits and the suspension of face-to-face legal visits.

111. In additional submissions filed on 16 April 2020, it is asserted on behalf of the offender that, since the advent of COVID-19, the offender’s bakery has succumbed to severe financial stress because he can no longer provide eat-in services. His business is now restricted to takeaway bakery products. His workforce has been reduced to four persons. However, his business continues to operate and his responsibilities to his creditors have become harder to meet. The Crown does not take issue with these additional factual matters.

112. I am urged to take into account the anxiety and stress the offender will likely suffer concerning the potential exposure to COVID-19 in the gaol setting, including the fact that he will be deprived of face-to-face contact with his family for an indeterminate period.

113. The Crown accepts that the offender’s time in custody may be more challenging if his family and friends are unable to visit him, although in written submissions the Crown observes that this is the case for both co-offenders. That may well be so. However, at the time the co-offenders’ proceedings were before the court, there was no pandemic. No submissions were made in respect of the more onerous conditions in custody. I cannot speculate as to how the respective sentencing Judges would have proceeded had the material relating to the COVID-19 pandemic been put before them.

114. I have taken into account that prisons are especially susceptible to the spread of the novel coronavirus and that extreme measures have been put in place by Corrective Services to reduce the risk of infection, including suspension of family visits. Being deprived of family visits in custody is a matter that I am satisfied would make conditions more onerous.

115. The extent to which these factors can be taken into account, if at all, is a matter to be resolved in the particular facts and circumstances of the individual case: Brown v R [2020] VSC 60 at [48].

116. In DPP (Cth) v Politopoulos [2020] VCC 338 (25 March 2020), the current crisis in relation to the COVID-19 pandemic was not sufficient reason to warrant immediate release from custody or to outweigh all other sentencing factors. It was however taken into account as adding to the concern of the offender and in moderating the sentence.

117. In DPP v Tennison [2020] VCC 343, the effect of the COVID-19 pandemic was taken into account in two ways. Firstly, there had been a suspension of personal visits. Secondly, the offender’s opportunity to work and occupy himself meaningfully in prison had been reduced. These factors were taken into account as adding to the stress of the offender’s time in custody.

118. In DPP v Morey (a pseudonym) [2020] VCC 320, the COVID-19 pandemic was taken into account because there were no face-to-face family visits in custody and because it was accepted that the offender was worried about the health, well-being and future of family members who may be affected by the virus. These factors were taken into account as playing some part in mitigating the sentence.

119. While I have taken into account the more challenging custodial conditions having regard to the restrictions that have been put in place as a result of the COVID-19 pandemic, on its own that factor would not have necessarily persuaded me to proceed by way of an ICO. It is the combination of both distinguishing factors that underpins my decision to proceed by way of an ICO.

120. The Sentencing Assessment Report dated 15 April 2020 assesses the offender as suitable to undertake community service work.

Determination

121. Accordingly, the offender is convicted of each offence.

122. I intend to set out the indicative sentences before I impose the aggregate sentence.

123. Taking into account a reduction in sentence by 25% to reflect the utilitarian value of the pleas of guilty I set out the following indicative sentences:

Sequence 1 (taking into account sequence 2)	10 months imprisonment
Sequence 3	10 months imprisonment
Sequence 4	14 months imprisonment
Sequence 5	12 months imprisonment
Sequence 6	6 months imprisonment

124. 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.

125. The standard conditions that apply to that order are:

1. you must not commit any offence, and

2. you must submit to the guidance and supervision of Community Corrections for as long as they deem necessary.

126. I impose the following additional conditions:

1. You are to undertake 150 hours of community service work.

127. I direct that the offender attend the Bankstown office of Community Corrections within 7 days of today’s date to enter into the orders and facilitate the administration of the orders.

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Decision last updated: 30 April 2020