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Court of Criminal Appeal 8 February 2001

R v Ibrahim

[2001] NSWCCA 14

Drugs
CRIMINAL LAW AND PROCEDURE SENTENCE DRUG TRAFFICKING MEDICAL CONDITION OF APPELLANT RELEVANCE TO QUANTUM OF SENTENCE

Citation: Ibrahim v R [2001] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 8 February 2001
Judge(s): Sheller JA, Grove J, Kirby J

Background

The appellant was convicted in the Lismore District Court of supplying traffickable quantities of cocaine and cannabis following a trial before Ducker DCJ and a jury. Police intercepted the appellant while he was driving near Ballina, and a search uncovered approximately 160 grams of pure cocaine, $24,000 in cash, and gift-wrapped cannabis. The central issue at trial was whether the appellant was in possession of the drugs; the Crown called the appellant's then-partner to give evidence on that point.

The appellant received a total term of five years' imprisonment for the cocaine supply offence, divided into minimum and additional terms of two years and six months each, with a concurrent nine-month sentence for the cannabis offence. He abandoned a conviction appeal and pursued only a challenge to the sentence.

The appellant was a pensioner of Iraqi origin, born in 1948, who had undergone coronary artery bypass surgery in 1992. A cardiologist's report placed his life expectancy at no more than five years and raised the prospect that his vein grafts could fail within two to three years.

  • Whether the five-year total sentence was manifestly excessive
  • Whether the sentencing judge erred in finding that the appellant was deeply involved in drug supply in the Far North Coast region
  • Whether the sentencing judge applied the correct legal principles in assessing the relevance of the appellant's serious cardiac condition to the quantum of the sentence

Decision

The Court of Criminal Appeal rejected the argument that the sentencing judge was wrong to infer significant involvement in drug supply. The appellant was not a drug user himself, the large cash sum was entirely unexplained despite his status as a pensioner, and he offered no evidence to counter the inference that the cocaine was destined for unlawful commercial activity. Grove J found it was plainly open to the sentencing judge to draw that conclusion.

On manifest excess, the Court noted the maximum penalty for the offence was fifteen years' imprisonment, and a total term of five years amounted to approximately one-third of that maximum. The appellant had no significant prior record, but there was very little subjective material operating in his favour. He had pleaded not guilty, continued to assert innocence when interviewed by a probation officer, showed no remorse, and appeared less than frank to that officer.

The principal argument on appeal concerned the cardiac evidence. The applicable principle, drawn from the South Australian case of R v Smith and endorsed in this Court's own decision in R v McDonald, is that ill health mitigates punishment only where imprisonment will be a greater burden on the offender by reason of that health condition, or where there is a serious risk that imprisonment will have a gravely adverse effect on health. The Court found that the cardiologist's report contained no specific evidence directed to either of those tests. The reference to the stress of prison was a circumstance common to all prisoners, not a finding specific to this appellant's condition.

The sentencing judge had, however, taken the health material into account in finding "special circumstances," which extended the additional (parole-eligible) portion of the sentence. Grove J observed that this operated to the appellant's benefit. No error in principle or in result was established, and the appeal was dismissed.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that ill health mitigates punishment only when evidence establishes either that imprisonment will be a greater burden on the particular offender by reason of that condition, or that there is a serious risk of imprisonment gravely and adversely affecting health. General references to the stress of incarceration do not satisfy that test.
  • A sentencing court is entitled to infer deep commercial involvement in drug supply where an offender, who is not a user, is found in possession of a large traffickable quantity of drugs together with a substantial and unexplained sum of cash inconsistent with their financial circumstances.
  • Extending the additional (parole-eligible) term by finding "special circumstances" is a legitimate means of acknowledging health concerns at sentence, even where those concerns do not meet the threshold required to reduce the total sentence.
  • In dismissing the appeal, the Court treated a total term of approximately one-third of the prescribed maximum as within the sound exercise of sentencing discretion, particularly where subjective factors were sparse and the inference of significant commercial involvement was supported.
  • No evidence of remorse, and a continued assertion of innocence after conviction, were among the factors the sentencing court weighed against the appellant in assessing the limited mitigating material available.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act (NSW), s 6(3)

Cases:
- R v Smith (1987) 44 SASR 587
- R v McDonald (1988) 38 A Crim R 470
- R v L (NSWCCA, unreported, 17 June 1996)