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 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) 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) Solicitors: Mr O Samin (offender) File Number(s): 2018/00108308 Publication restriction: No Judgment 1. 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. 2. 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. 3. The sequence 1 offence, as it is referred to in the proceedings, the knowingly take part in the supply of prohibited drug offences, an offence contrary to s 25(1) Drug (Misuse and Trafficking Act) 1985, that offence carries a maximum penalty of 15 years imprisonment and/or 2,000 penalty units. There is no standard non‑parole period for that offence. The deal with proceeds of crime offence, contrary to s 193C(2) Crimes Act 1900, carries a maximum penalty of three years. That provision contemplates dealing with suspected proceeds of crime up to the sum of $100,000. 4. In respect of the sequence 1 offence, there is a matter on a Form 1, referred to as "sequence 3", of participating in a criminal group and contributing to criminal activity with a number of people, Mr Watchou who awaits sentence, Mr Hannachi, Damien Masset and Florian Chamon. The particulars of contributing to criminal activity are particularly supply prohibited drugs and knowingly deal with the proceeds of crime. We are increasingly seeing this particular charge being brought to court in respect of matters for which there are already principal offences. 5. This matter is on a Form 1. It is an offence that is to be considered in the context of the guideline judgment in relation to Form 1 matters and other subsequent authorities, particularly Attorney‑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 correct to say that there is a requirement in dealing with matters on a Form 1 to identify a discrete way in which the offence taken into account might affect the sentencing for the principal offence. The task of the sentencer is to sentence for the principal offence taking into account the Form 1 matter to the extent that it may inform the criminality in the principal offence. 6. As the Chief Justice pointed out, ordinarily when matters are on a Form 1 greater weight should be given to the need for personal deterrence and the community's entitlement to extract retribution. His Honour said, "the entire point of the process" is usually to impose a longer sentence or to alter the nature of the sentence that would have been imposed if the principal sentence had stood alone. However, these things have to be seen in context. If you are sentencing someone for an armed robbery and four armed robberies can be taken into account on a Form 1, it would significantly affect the appropriate sentence for the principal matter, acknowledging the limitations upon that, such as the fact that one is only dealing with the principal offence and one is restrained by the maximum penalty and, of course, the principle of totality. It seems to me in the context of the facts that I have been provided, and the particulars in the charge, that the matter on the Form 1 provides a context for understanding the specific matters that are coming forward for sentence; that is, the knowingly take part in the supply of prohibited drug and deal with the proceeds of the crime. 7. The facts in relation to this matter are set out in the Agreed Statement of Facts. But there is a wider, again an often used word, "context" to this matter. Some weeks ago I sentence two men, Mr Chamon and a Mr Hannachi. They were charged in respect of their involvement in a range of activity relating to the supply of prohibited drugs. In the case of Chamon, the particulars in relation to him were concerned with events from the beginning of February up until his arrest in April. In relation to Mr Hannachi, the particulars in relation to him concern his involvement in the supply of prohibited drugs and other matters dating from November of 2017 until his arrest in early April. I do not propose to reiterate any particular matters about those offenders. 8. There are two other offenders that I am required to sentence in due course, Mr Micah and Mr Watchou. In the case of Mr Bianchi, the Statement of Agreed Facts relating to him is, in fact, a separate document from a joint Agreed Statement of Facts that relates to the other people that I have named. There are some other players in this affair the details of whom are very sketchy and what particular important roles they played are unknown to the Court. I specifically refer to a man by the name of Coulaud who, apparently, was intimately involved in a range of activities over a number of months but who has fled the jurisdiction. 9. In the Agreed Statement of Facts relating to this prisoner there is reference to a number of addresses that were concerned with the organised system for selling drugs in a range of ways and it is clear from the material available to me that the various participants from time to time were subject to a considerable amount of surveillance, both visual and electronic. The particulars that are of importance relating to this prisoner arise after 7 February 2018 and the reason for that is that this prisoner was not in the country until 7 February, as I understand it. The evidence is a little unclear as to the extent of his relationship with two of the offenders, that is, Mr Coulaud who I said escaped the jurisdiction, and Mr Chamon who I have sentenced. I notice in relation to the personal details of this prisoner that he had a painting business and I noted in relation to the sentencing of Mr Chamon that Mr Chamon's father had a painting business apparently in the same general area of France. But whether that is a basis for a relationship between this prisoner and Mr Chamon particularly I am unaware. 10. So far as one of the addresses, the address at which apparently Coulaud and Chamon lived, Steel Mill Lane Haymarket which I referred to when I sentenced Mr Chamon, was subject to surveillance both visual and electronic over a number of weeks from early March. As it relates to this particular prisoner, on 14 March 2018, that is the first date on which he comes into a specific view such as the Court can permit a fact finding, he was in company with another person by the name of Masset and they were observed attending the address at Haymarket. Masset was carrying a "Country Road" bag and the electronic surveillance revealed him to place a white plastic shopping bag on the table, presumably containing money, saying "Come here and count. We have to close the curtains". The money was counted by Masset and handed across to Chamon also to count, and there were various explanations given by Masset in relation to the source of the money, particularly specific people known as "runners" who were selling drugs on the street. It is said that Chamon and Masset counted thousands of dollars whilst talking about drug supply. 11. At about 9pm Masset picked up what is described as "a stack of money", placing it into a plastic bag and then back into the Country Road bag to which I have referred. Then the two men, Masset and Bianchi left the apartment. I note, as the facts have been provided to me, there is no reference to Bianchi doing anything beyond his presence in the room at that particular time that the money was counted. 12. The two men travelled to an address in Oxford Street, Darlinghurst, and when entering those premises Masset was stopped and searched and $10,240 in Australian currency, presumably part of the proceeds or perhaps the entire proceeds that were counted at Chamon's residence, were located inside the Country Road bag. The cash was seized and Masset was charged in relation to that sum of money. Bianchi was not charged in relation to that sum of money. 13. On 28 March 2018, coming back to the charge of taking part or knowingly take part in the supply of prohibited drugs, surveillance captured this prisoner and an English person, who is not known to the authorities, entering the premises of Mr Chamon. There is a conversation recorded where Mr Bianchi speaks to Mr Chamon, a person who he obviously knows. Chamon is shown under surveillance to pick up a sandwich bag from the side table containing a substance, hands it to Bianchi and he then handed the sandwich bag to the English male and said, "It should be enough for this week, 17 grams. If you are running out, just text me and I will help you". 1. Now, I pause for a moment to point out that in its terms that conversation reveals that Mr Bianchi, whilst he is in one sense technically involved in the supply of drugs by handing over drugs provided to him by Chamon to the English person who is unknown, he is also aware of the fact that drug supply is being orchestrated or directed by Mr Chamon and he is willing to assist on other occasions. He is certainly it seems to me, aware of the character of the business that Mr Chamon was undertaking at that particular time. 2. Bianchi then handed Chamon two sandwich bags of cash, which I am assuming, although it is not entirely clear, are related to the supply which has just occurred. They are placed in a "grey shoebox". Hannachi and Bianchi knew one another. Hannachi's role was directing street level supplies in a range of ways and was intimately involved in the business being undertaken by Mr Chamon and Mr Coulaud. 3. On 1 April 2018 Chamon is recorded counting an estimated $120,000 in the company of another person and this occurs, apparently, in the absence of Mr Bianchi. But at a later time Bianchi and Hannachi are in the apartment with another unknown person and Bianchi is observed through the surveillance equipment counting cash in the apartment. They are the specific particulars that implicate the prisoner in the way in which the knowingly supply prohibited drug charge is cast and also the participation of the prisoner in criminal activity with the group of people to whom I have referred. 4. On 6 April 2018 the prisoner and Masset were arrested at premises at Tamarama. During the search, police seized $9,350 of Australian currency from the bedroom of Bianchi, which is reasonably suspected of being the proceeds of crime. Hence the sequence 2 charge. During a police electronic interview after his arrest, the prisoner denied matters of which he must have had knowledge. When he was shown surveillance footage, he made admissions in relation to the supply of the 17 grams of 3,4‑methylenedioxymethamphetamine on 28 March stating that he was giving the drugs to a friend of his. But at the same time of course, that explanation does not fully inform the character of the transaction given the fact that it would appear that cash was handed over, passed through Bianchi to Chamon, at the time of that supply. 5. The prisoner sought to downplay his involvement with the group. There are specific pieces of information located on the prisoner's mobile phone indicating his knowledge of the group and his contact with the group and involvement in financial arrangements, at least, relating to the group's activity in relation to the supply of prohibited drugs set out in para 26. The prisoner, however, is to be sentenced in the context of the fact that both Hannachi and Chamon played leading roles in the directing of the relevant activities. The matter was addressed at considerable length in the very helpful submissions of counsel for the prisoner, and I will come back to those issues raised by him very shortly. 6. The Crown in its written submissions, particularly at para 15 and 16, sought to address the issue of the criminality of this prisoner. I bear in mind, not that I am criticising the Crown's submissions, that the Crown submissions were drafted or prepared in the context of endeavouring to deal with all of the five accused who initially appeared before me when the matter commenced. The particular attention to Bianchi is not as extensive as is the attention in those submissions to more significant players. 7. The prisoner has no prior criminal convictions. He is a native of France. He was born in December 1991 and thus at the time of the offending with which I am concerned he was a man who would be at least 26 years of age. He is a grown up, in other words, not a youth. I have a Sentencing Assessment Report from Community Corrections. It sets out a great deal of material that primarily comes from the prisoner, which I am prepared to accept because it accords with other information I have from the prisoner. 8. The prisoner came to Australia on 7 February 2018, and clearly he was drawn into a criminal enterprise that was well established by the time he arrived. It would seem to me that the common relationship with France that many of the people had was an explanation for him being drawn into the activity for which he is to be sentenced today. He came to Australia to seek an employment opportunity. I cannot conclude that he came here to commit crime. Although clearly he had a connection with Mr Chamon and Mr Hannachi by the middle of February as some of the downloaded messages to which I earlier referred confirm. 9. He has expressed regret for his involvement, claiming that he knew that it was wrong from the outset, but he became "quite curious" about the criminal activities and thus became involved. In fairness to the prisoner I have never actually heard him speak. But I am assuming he has English as a second language. He has not asked for an interpreter, and I am assuming that part of his language might be a little, if not antiquated, certainly inappropriate for what he was trying to express. He claimed that his offending was not for financial gain, but his possession of over $9,000 at the time of his arrest speaks to the contrary. 10. The prisoner claims to be from a prosocial community and family and I have a reference in English from his mother and a reference in English from his sister. The prisoner has been somewhat isolated in Australia, as one would expect, particularly since his arrest. He has sought to forge new relationships. After his release from custody he has expressed a willingness to engage in any supervision required of him or undertake community service work, but in his case there is no community service work available. He has not previously been the subject of any supervision and is assessed at a low risk of reoffending. 11. Dealing with the Community Service Assessment, whilst he is suitable to perform community service, there is no work available for him. This is a matter I predicted when I wrote a paper on ICOs some years ago when they were first introduced. That there would be a limitation of access to this sentencing alternative in the context of the incapacity of Community Corrections to provide community work. Although it has transpired, particularly with recent amendments to the Crimes (Sentencing Procedure) Act 1999, that sentences of imprisonment to be served by way of Intensive Correction Order are still available, even if community service work cannot be provided. It is a matter of disappointment that such an option is denied the Court in considering whether to impose an Intensive Correction Order in respect of a particular offender. 12. The prisoner was in custody, apparently bail refused, from the date of his arrest 6 April 2018 until 11 July 2018. That is a period of three months six days as calculated by the Crown. This would have been a salutary experience in a range of ways. Although not surprising in the circumstances of the character of the investigation being undertaken by the police, I bear in mind the difficulties for a foreign national being in custody in Australia greatly separated from members of family and possible support. 13. Other information that is relevant to this sentencing exercise is the material that has been provided to the Court, particularly in relation to the offender Damien Masset. He was sentenced by the Local Court in respect of two offences, one of dealing with proceeds of crimes with the $10,240 seized from him on 14 March 2018 and also, as I understand it, for participating in a criminal group with Chamon, this prisoner and Hannachi and contributing to criminal activity. The particulars of the Court attendance notice state, "Supply prohibited drugs and knowingly deal with proceeds of crime". But he, Masset, was not charged with drug supply. 14. I also have particulars in relation to a person called Malla who was convicted of an offence of conceal serious indictable offence in the Local Court and sentenced to a Community Correction Order for a period of 18 months. He appealed that order to the District Court unsuccessfully. Malla's sentencing is of no relevance to this sentencing exercise primarily because I have very little information about him and the character of the charge reflects no direct involvement in the criminal activity for which this prisoner is to be sentenced. 15. In respect of the sentencing of Masset, of course, it is not irrelevant to this sentencing exercise with which I am concerned. But in considering the issue of "parity", as it was identified in the very detailed and helpful written submissions of counsel for the accused, one is to bear in mind a number of issues. First of all, the prisoner was dealt with in the Local Court where the jurisdictional limit on sentencing is considerably below the limit upon sentencing prescribed by the relevant maximum penalties for the offences with which I am concerned. Masset was not charged with supplying prohibited drugs. But clearly he must have had knowledge of the fact that the cash in his possession was related to the supply of prohibited drugs. That, of course, does not make him guilty of supplying prohibited drugs, I appreciate that. But it is a relevant matter to take into account. 16. The parity principle is an aspect of the notion of "equal" justice. It has been discussed in a range of High Court judgments that I need not dwell upon. Postiglione is one such case. The dicta of Dawson and Gaudron JJ in that decision has been applied and adopted in a range of cases, most notably by the High Court more recently in a decision of Johnson. The Court of Criminal Appeal in a judgment of Jimmy from 2010 had three very learned judgments, extensive examinations of the concept of parity of sentencing. As Rothman J pointed out, equal justice is an expression of the Aristotelian principle of equality, and in the context of parity of sentencing, it involves treating alike alike and unalike unalike, to the extent of their unalikeness on rational grounds to ensure that there is no justifiable sense of grievance. 17. In the context of someone being dealt with in the Local Court at the time of the orders being made, the significance of the orders of the Local Court is not as great as if the same offender had been dealt with in the same jurisdiction as the person at bar. In regard to that, I was drawn to the fact that at the time this prisoner was committed for sentence, the supply matter with which I am concerned was not a matter that could be dealt with in the Local Court. Apparently there has been some change to the law in relation to that matter. But ultimately, having regard to the view I have taken of the appropriate way to dispose of the sentencing of this particular prisoner, the issue identified in the written submissions, whilst irrelevant to this exercise, is not highly significant. 18. I come back to the material presented on behalf of the prisoner. I have a letter of apology, which is quite extensive, typed in the English language. I have read that letter of apology and I do not believe I can do justice to all of its details. There are some matters that I might approach with some circumspection. The prisoner, in my view, by trying to identify the character of his criminality has sought to downplay it. I believe that the facts in their terms of his association with Mr Chamon and his knowledge of Mr Hannachi speak of a person with close connection to significant players in the distribution of drugs. The prisoner would appear to identify himself as more peripheral than the facts reveal. 19. That having been said and without dwelling upon a principle that is well known to all of us, I can only sentence the prisoner for what he has been charged. I can only be satisfied beyond reasonable doubt of those matters that are established to that level of proof and I essentially must rely upon the detail of the agreed facts in determining the facts adverse to the prisoner that are required to be established beyond reasonable doubt. 20. The other aspect of the matter is the constant attempts to, not necessarily in this matter, label offending with descriptions which do not assist the Court whatsoever. The High Court back in 1999 made very clear in the decision of Olbrich the obligations of the sentencing judge. The requirement of matters adverse to the prisoner in the context of what the Crown alleges against the prisoner to be established beyond reasonable doubt. Matters in mitigation by reference to the objective circumstances to be established by the prisoner on the balance of probabilities. The Court also cautioned against the use of "labels". 21. It is the fact that the prisoner, as others have been described, is described in one sense as a "runner". But the extent to which that description might describe what the prisoner did is somewhat dubious in the context of precisely what is capable of being established by the Crown beyond reasonable doubt. If the Crown can establish other matters beyond reasonable doubt, then the prisoner should be charged accordingly. Thus I proceed to sentence him in that legal context. 22. I have noted the reference of the prisoner's mother. I accept the prisoner has family support. I understand he comes from a "small community", generally described as "in the south of France". The south of France is a pretty big area, as I note from personal experience. I am not really informed greatly as to the detail of the social context of the prisoner's upbringing. But I am prepared to accept that, essentially, he comes from a law‑abiding prosocial family and I note the entreaties of mercy expressed by his mother and by his sister. His sister reflects upon the prisoner's involvement in his own painting company, to which I earlier referred, and some injuries suffered to his back which had him abandon that business. The reasons for coming to Australia to find work are not entirely clear. One might have thought that opportunities for employment in France were just as good as they were in Australia. I note in fact, when the prisoner was in Australia for a period of time, he was working as a removalist. 23. I bear in mind at the present time since his release from custody the prisoner has been in employment and I have quite a number of wages records confirming the prisoner's employment from the end of last year through to May of 2019. Thus I can accept from those records that the prisoner has been able to re‑establish in the community whilst awaiting the outcome of these proceedings, which is to his credit. 24. I am also aware that the prisoner has undertaken attendance in respect of a drug and alcohol program described as the "SMART" program and has attended upon counselling sessions in May and June of 2019. It is a modest effort, I must say, but the prisoner asserts that he has been drug free since his release from custody, and it is clear that he has severed his relationship with those that drew him into the criminal activity for which he is to be sentenced, bearing in mind that three of those principals remain in custody. 25. With regard to the sentencing of the prisoner there are a number of principles and specific issues to be taken into account, as I am reminded, in the helpful written and oral submissions of both parties. Primarily, in sentencing an offender, there are the "purposes of sentencing", as they arise under s 3A of the Crime (Sentencing Procedure) Act. I am required to ensure that an offender is adequately punished. I am required to prevent him and others from committing similar offences. I am required, to the extent that it is necessary, to protect the community from the offender, although I do not perceive the prisoner to be a danger to the community as such. 26. I am required to make him accountable for his conduct and denounce his conduct and recognise any harm done to individuals or the community. Of course, the detail of any harm done to individuals I cannot identify. But I am aware of the fact that the use of prohibited drugs in a range of ways does considerable harm to our community. One only has to sit here as a Judge of the District Court over many years and see the number of people committing crimes either as a consequence of their use of drugs or in their pursuit of the purchase of drugs to understand the damage done to the community by a range of prohibited drugs. The organisation, if I could call it that, for want of a better word, primarily directed by Coulaud and Chamon was involved in the supply of a number of prohibited drugs. 27. I am also required to promote the rehabilitation of the prisoner. I do so in the context of understanding that he is a French national and that he will ultimately return to France. But our sentencing laws in a range of ways treat both foreign nationals and citizens of our country the same. We do not discriminate. We work on the assumption that matters that are pertinent to the promotion of the rehabilitation of an offender are relevant even in circumstances where it might not transpire that the particular offender will be subject to parole. A good example of that is in fixing non‑parole periods for foreign nationals who come to our country importing drugs, for example. Sentencing those offenders in the knowledge they are to be deported still requires us to have regard to matters that would ordinarily be taken into account in fixing a non‑parole period for an Australian citizen. 28. The supply of prohibited drugs, particularly being the most serious charge the prisoner is facing, presents challenges for sentencing officials, judicial officers, required to reflect the will of the legislature. The principles to be applied in relation to such matters, putting aside the principles that will arise when one is sentencing offenders for more serious manifestations of breaches 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 Court. 29. The Court noted, amongst other matters, that the purposes of sentencing, to which I refer, assume importance in every sentencing exercise. The sentencing of offenders for supplying prohibited drugs involves consideration of a sentencing principle that applies across a range of offending. Importance is required to be placed, of course, upon general deterrence. Regard for the protection of the community is another particular matter, noting the social impact of drug use. The maximum penalty and any relevant standard non‑parole period will be legislative guideposts and, 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. 30. Simpson J's observations in an early decision of Robertson [2017] NSWCCA 205 received approval when her Honour said at [50]: "It may be accepted that examination and analysis of sentencing practices establishes that, where the facts of an offence demonstrate drug dealing 'to a substantial degree', a sentence of imprisonment will ordinarily be imposed. Moreover, recognition of the serious social implications of drug dealing (reflected, if in nothing else, in the maximum prescribed sentences) suggests that, in the order case, a sentence other than imprisonment will fail to meet sentencing objectives." 1. However, as Parente pointed out, and as her Honour went on to observe in Robertson, a judge must not sentence an offender to imprisonment unless satisfied that having regard to all possible alternatives no other penalty is appropriate (see Parente at [113]), that requires the Court to consider whether, having regard to the appropriate penalty for the actual offence for sentence (and, again, I am referring here to the offence of taking part in the supply of prohibited drugs), the Court considers the appropriate penalty and then what options may arise given that decision, consistent, of course, with a range of authorities such as Zamagias from 2002 and Johnson J's judgment in Douar from 2005. As the Court of Criminal Appeal has said in the decision of West, fulltime custody is the last choice, not the starting point, for the imposition of a sentence where other options are available (see West v R (2017) NSWCCA 271 at [60] ‑ [61]). 2. With regard to matters arising under s 21A(2), noting such matters that arise from the facts that give consideration to the terms of s 21A(1), the only possible relevant aggravating factor is the fact that the offence of supply prohibited drug was "financial reward" or financial gain as subpara (o) states. I am not satisfied that that is an aggravating factor in this matter in relation to the particular supply for which the prisoner is to be sentenced. But it is quite clear to me that the proceeds of crime offence involving his possession of a sum of over $9,000 is related to the prisoner's connection with and support of the activities of people more principally involved, Chamon, Coulaud and Hannachi. 3. With regard to mitigating factors that arise under s 21A(3) I accept that the prisoner did not have any record of previous convictions. I am prepared to accept that he was a person of good character before he became involved in the events that bring him before the Court today. I am prepared to accept, in light of the salutary experience of being in custody, he is unlikely to reoffend. Having regard to what is attested to in the references from his mother and his sister and noting his background, I am prepared to accept that he has good prospects of rehabilitation. He has demonstrated that also on his endeavours since release from custody to "reinvent himself", seeking some professional assistance, obtaining employment and the like. His plea of guilty is, of course, a relevant mitigating factor. 4. So far as the issue of remorse, I note his expressions of remorse and his expressions of "taking responsibility" for his conduct, but ultimately it is not a significant matter and not established on balance pursuant to s 21A(3)(i) of the Act. With regard to the issue of the totality of the criminality, the prisoner's possession of the proceeds of crime, to my mind, is intimately connected with the matter in the Form 1, not necessarily directly connected to the principal offence for sentence. The circumstances of the prisoner's involvement with others more energetically involved in the supply of drugs suggests, to my mind, that there should be, in respect of the 'deal with proceeds of crime' offence, a considerable degree of concurrency with the penalty to be imposed in respect of the contravention of s 25 of the Drug Misuse and Trafficking Act. 5. Insofar as reflecting upon totality of criminality, I note what was said by Street CJ in the very old decision now of Holder from 1983, in decisions such as Mill v R from 1988 and, of course, a decision of Johnson v R from the High Court in 2004. Insofar as totality of criminality is concerned, of course, I am mindful 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 dealt with in the course of my factual conclusions set out above. 6. To come back to a matter that I foreshadowed I would address. As I said earlier, the learned Crown's written submissions primarily were addressed towards the involvement of more culpable players. Specifically in relation to this prisoner, taking the written submissions together with the oral submissions of counsel for the prisoner, it can be seen, to use the Crown's words, that this prisoner is significantly below the level of culpability of Mr Hannachi, both by reference to the period of time that he was involved in the offending, the actual role he played, the extent to which the prisoner, if at all, directed any particular activity. 7. There appears to be no evidence of him directing anything by reference to the activities of other people. Thus in the context of "parity", when one has regard, for example, to Mr Hannachi, one can see his significantly greater criminality by reference to particulars of the various charges to which he pleaded guilty and the fact that he pleaded guilty to more serious charges of supply prohibited drugs with substantial standard non‑parole periods. 8. I accept what was put by counsel for the prisoner about matters that may be relevant to assessing the role of the prisoner, particularly in relation to the supply of prohibited drugs. Issues such as whether the prisoner contributed financially to the cost of setting up the drug supply arrangements. In this matter there is no evidence that the prisoner did that. Whether the prisoner stood to share in the profit as distinct from receiving payment I do not know. The sum of money in the prisoner's possession, of course, was substantial and that might be divined as "profit sharing". But significantly less, one would have thought, than such financial reward that was available to those more principally involved. The prisoner had no role in the management of the affairs of the supply of drugs to which I have referred and also there is no evidence that the prisoner had any "decision" making role other than on the occasion that he took part in the supply of drugs, introducing a person, obviously known to him, to one of the principals involved. 9. So far as the prisoner's circumstances since his release from custody, I have taken into account the significant imposition upon him of the bail conditions imposed. That having been pointed out, the only other alternative, if he was not prepared to comply with the conditions, was to stay in custody until his case was dealt with. The truth of the matter is when dealing with a foreign national, there must be stringent reporting conditions, surrender of passports and the like, to ensure that the person does attend at court to be dealt with according to law. I do not see the bail conditions as being a significant matter in this sentencing exercise, but they are a matter to take into account. 10. The learned counsel for the prisoner, apart from summarising the subjective case of the prisoner, provided an analysis of the differing involvement of the offenders that were of particular concern in the context of the written submissions of the Crown and the defence's understanding of the Crown case against the prisoner and the organisation chart shown to the Court. I believe it has already been dealt with elsewhere in the earlier judgment. I do not think there is a great deal of significance to be found in the comparative amounts of money found in the possession of each of the respective offenders referred to in that chart, that is, Mr Hannachi and Mr Masset. Particularly in the case of Mr Hannachi and his much greater role in orchestrating and directing and giving effect to the supply of prohibited drugs in a substantial quantity. Of course, "substantial quantity" for the purposes of the sentencing judge has to be seen in the context of not only the facts of the case, but the range of cases that this Court has to deal with from time to time. 11. The only other outstanding matter is addressing the essence of what I have concluded. The s 5 threshold has been passed. In my view, this is not a matter where I could appropriately deal with the prisoner by way of a Community Correction Order. However, in my view, whilst the s 5 threshold is passed, I am required, in the context of the decision such as EF and Parente itself to reflect upon what is the appropriate penalty and then consider what alternatives may reasonably be open to the Court. Ultimately I have determined that whilst a term of imprisonment must be imposed, the term of imprisonment should be served by the prisoner by way of Intensive Correction Order. 12. In respect of the offence of knowingly take part in the supply of a prohibited drug, taking into account the matter on the Form 1, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of one year three months. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order and will commence on 6 August 2019. 13. You must report to the Community Corrections office at the Sydney Community Corrections on Wednesday, 7 August 2019 at 11am. 14. The standard conditions apply. Firstly, you must not commit any offence and, secondly, you must submit to being supervised by a Community Corrections Officer. The following additional condition applies; you are not to associate with any of your co‑accused whilst subject to this order. If you fail to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning imposing more stringent conditions or may include revocation. If the order is revoked, you may be required to serve all or some of the period of your sentence in fulltime custody. 15. You are now directed to attend the Court registry where a copy of this order will be explained and given to you. 16. In relation to sequence 2, deal with suspected proceeds of crime, you are convicted. There being no other appropriate penalty, you are sentenced to a term of imprisonment for a period of six months. Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence on 6 August 2020. You must report to the Community Corrections office at Sydney Community Corrections on Wednesday 7 August 2019 at 11am. 17. The same conditions apply as I have earlier identified in relation to the other order and the same warnings are made to you that you can be subject to sanction by the Commissioner of Corrective Services or the State Parole Authority who may issue a formal warning, impose more stringent conditions or may include a revocation of the order and you may be committed back to full-time custody. 18. I note that I have not fixed a condition for the performance of community service because community service is not available at the City office of the Community Corrections Service. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2020