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10
Court of Criminal Appeal 17 February 2005

R v Ibrahim

[2005] NSWCCA 43

DrugsFirearms & weapons
SENTENCING POSSESSION OF AN UNAUTHORISED FIREARM SUPPLY CANNABIS ACCUMULATION OF SENTENCES PRODUCES NON

Citation: R v Ibrahim [2005] NSWCCA 43
Court: NSW Court of Criminal Appeal
Date: 17 February 2005
Judges: Grove J, Bell J, Buddin J

Background

The applicant pleaded guilty in the District Court to offences arising from two separate indictments. The first indictment covered an incident in which he entered premises and threatened the occupant with serious violence, returned the following day in possession of a loaded semi-automatic handgun, and was found with cocaine. The second indictment arose from three separate small-scale cannabis supplies to an undercover police operative at a café, as well as facilitating an amphetamine purchase. The drug offences occurred while the applicant was on bail for the earlier matters, which was treated as an aggravating circumstance.

The District Court sentenced the applicant to a total effective head sentence of approximately four years and two months, with a non-parole period of three years and nine months. The applicant sought leave to appeal on the ground that the sentences were excessive.

  • Whether the overall accumulation of sentences produced a non-parole period that was disproportionate to the head sentence
  • Whether the sentencing judge had correctly applied the Form 1 procedure, specifically whether the Form 1 offences from the first indictment were properly taken into account at the time of sentencing on that indictment
  • Whether the Court of Criminal Appeal should intervene and re-sentence the applicant

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. The central problem identified by Buddin J was that the accumulation of sentences produced a non-parole period that was disproportionate when measured against the overall head sentence. In other words, the ratio of the minimum custodial time to the total term had become imbalanced as a result of the way the sentences were stacked.

The Court also identified errors in the handling of the Form 1 documents. The sentencing judge had failed to expressly take the Form 1 offences related to the first indictment into account at the time of sentencing on that indictment, referencing them instead only when dealing with the second indictment. The endorsements on the indictment did not clarify matters. While these errors could potentially have been corrected by application to the sentencing judge under section 43 of the Crimes (Sentencing Procedure) Act 1999, the Court of Criminal Appeal considered it appropriate to correct them on appeal.

The Court proceeded to re-sentence the applicant. The revised structure reduced the overall non-parole period and corrected the Form 1 attribution, producing a sentence where the final non-parole component of six months attaches to the last count, with a total term extending to 15 March 2008 and release to parole directed on 15 March 2007.

Orders Made

  • Leave to appeal granted
  • Appeals allowed; sentences imposed in the District Court quashed
  • Count 1 of the first indictment (entering building with intent): fixed term of 18 months, commencing 16 March 2004, expiring 15 September 2005 (incorporating Form 1 matters)
  • Count 2 of the first indictment (intimidation): fixed term of 12 months, commencing 16 March 2004, expiring 15 March 2005
  • Count 3 of the first indictment (unauthorised possession of firearm): fixed term of 12 months, commencing 16 September 2005, expiring 15 September 2006
  • Counts 1 and 2 of the second indictment (supply cannabis): fixed terms of six months each, commencing 16 March 2005, expiring 15 September 2005
  • Count 3 of the second indictment (supply cannabis, incorporating Form 1 matter): non-parole period of six months commencing 16 September 2006, expiring 15 March 2007; balance of term of 12 months expiring 15 March 2008
  • Applicant directed to be released to parole on 15 March 2007

Key Takeaways

  • Accumulating sentences across multiple indictments can produce a non-parole period that is disproportionate to the overall head sentence, constituting a sentencing error that warrants appellate intervention.
  • The Form 1 procedure requires that additional offences on a schedule be expressly taken into account at the time of sentencing on the associated count; failing to do so at the correct stage is an error, even if it can sometimes be remedied under section 43 of the Crimes (Sentencing Procedure) Act 1999.
  • Where a sentencing error is not corrected at first instance, the Court of Criminal Appeal has the power to correct Form 1 attribution errors on appeal.
  • In re-sentencing, the Court restructured the terms so that the non-parole period bore a proportionate relationship to the head sentence across the accumulated offences.
  • Aggravating features such as committing offences while on bail, the presence of a loaded firearm, and an extensive prior criminal history were all reflected in the revised sentences, but did not override the proportionality requirement.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43

Cases
- R v Bolamutu [2002] NSWCCA 454
- R v Clissold [2002] NSWCCA 356
- R v Close (1993) 31 NSWLR 743
- R v Keen [2004] NSWCCA 86
- R v Lupton [2003] NSWCCA 200
- R v LWP [2003] NSWCCA 215
- R v Simpson (1992) 61 A Crim R 58
- R v So [2004] NSWCCA 362
- R v Tran [2005] NSWCCA 35