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Court of Criminal Appeal 28 November 2014

Ibrahim Jidah v R

[2014] NSWCCA 269

Drugs
CRIMINAL APPEAL CONVICTION APPEAL SENTENCE APPEAL

Citation: Ibrahim Jidah v R [2014] NSWCCA 269
Court: NSW Court of Criminal Appeal
Date: 28 November 2014
Judge(s): Bathurst CJ; Fullerton J; Davies J

Background

The appellant was tried jointly with four others on drug offences under the Drug Misuse and Trafficking Act 1983 (NSW). He was convicted on two counts: supplying pseudoephedrine (a prohibited drug) in an amount not less than the large commercial quantity, and attempting to possess pseudoephedrine as a precursor intended for drug manufacture. The offences arose from events in August 2008 involving the movement of a very large quantity of pseudoephedrine tablets.

At first instance in the District Court, the appellant received a head sentence of 15 years and 9 months for the supply count, with 18 months served concurrently for the precursor possession count. The sentencing judge found the objective seriousness of the supply offending to be close to the top of the mid-range, describing the appellant's role as that of organiser and overseer, including recruiting his brother as a driver and overseeing the safeguarding of the drugs in transit.

The appellant challenged both his convictions and his sentence on appeal. His sentence appeal was heard alongside those of his co-offenders, including his brother, who were also seeking to have their sentences adjusted.

  • Whether dual convictions for supplying a prohibited drug (Count 6) and attempting to possess the same substance as a precursor (Count 7) involved a miscarriage of justice, because the elements of one offence were said to be contained within the elements of the other.
  • Whether the sentencing judge failed to account for the interrelated nature of the two offences when assessing the objective seriousness of the supply count.
  • Whether the sentencing judge erred in inferring the appellant's knowledge of the approximate size of the drug enterprise.
  • Whether the sentencing judge applied an incorrect approach to the standard non-parole period, in breach of the High Court's decision in Muldrock v The Queen (a Muldrock error).
  • Whether the sentence produced an unjustified disparity with sentences imposed on co-offenders who were more senior in the drug enterprise and who had since been resentenced.

Decision

Conviction appeal: The Court dismissed the conviction appeal, following the reasoning in the companion decision of Yousef Jidah v R [2014] NSWCCA 270. The argument that the elements of the supply offence were wholly subsumed by those of the precursor possession offence did not succeed. No miscarriage of justice arising from the dual convictions was established.

Muldrock error: The Crown conceded that the sentencing judge had applied an erroneous approach to the standard non-parole period, inconsistent with Muldrock v The Queen. This concession enlivened the Court's jurisdiction to resentence the appellant, and the Court proceeded accordingly.

Objective seriousness and knowledge: The Court accepted the sentencing judge's factual findings about the appellant's role, including the inference that the appellant had knowledge of at least the approximate quantity of drugs involved. The appellant's counsel did not directly challenge the characterisation of the offending as close to the top of the mid-range, though it was maintained that the sentence did not adequately reflect the limits of the appellant's actual tasks.

Parity: Co-offenders who were more senior in the drug enterprise had been resentenced in related appeals heard at the same time. To preserve the appropriate sentencing relativity reflecting the appellant's lesser role relative to those co-offenders, and to correct the Muldrock error, the Court resentenced the appellant. The Court also took into account positive developments in the appellant's conduct and rehabilitation in custody since the original sentence. A sentence of 12 years and 6 months, with a non-parole period of 8 years and 6 months, was substituted.

Orders Made

  • Appeal against conviction dismissed.
  • Leave to appeal against sentence granted.
  • The sentence imposed in the District Court on 23 September 2011 on Count 6 is quashed.
  • In lieu thereof, a sentence of 12 years and 6 months imprisonment is imposed, commencing 27 April 2010 and expiring 26 October 2022, comprising a non-parole period of 8 years and 6 months and an additional term of 4 years.
  • The appellant becomes eligible for release on parole on 26 October 2018.

Key Takeaways

  • In dismissing the conviction appeal, the Court of Criminal Appeal confirmed, consistently with Yousef Jidah v R, that dual convictions for supplying a prohibited drug and possessing the same substance as a precursor do not necessarily constitute a miscarriage of justice, even where the same substance underlies both charges.
  • A conceded Muldrock error (that is, applying the standard non-parole period as a statutory norm or starting point rather than as a legislative guidepost) is sufficient to re-enliven the appellate court's sentencing discretion.
  • Parity between co-offenders is an active consideration on resentencing: where more senior participants in a drug enterprise have their sentences reduced on appeal, a less culpable participant's sentence may require adjustment to preserve proper relativity.
  • Positive post-sentence conduct, including rehabilitation programs, disciplinary compliance, and changed personal circumstances, can be taken into account as fresh material on resentencing by an appellate court.
  • Under the Drug Misuse and Trafficking Act 1983 (NSW), pseudoephedrine is both a prohibited drug (Schedule 1) and a prescribed precursor for the purposes of section 24A, meaning the same substance can simultaneously found charges under both sections 25 and 24A.

Legislation and Cases Referenced

Legislation:
- Drug Misuse and Trafficking Act 1983 (NSW), ss 3, 24A, 25, 33, 33AB and Schedule 1
- Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Division 1A
- Criminal Appeal Act 1912 (NSW), s 6

Cases:
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- Yousef Jidah v R [2014] NSWCCA 270
- Lachlan Wilson v R [2014] NSWCCA 266
- DS v R [2014] NSWCCA 267
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
- Crystal Lee England v R [2009] NSWCCA 274
- Gill v R [2010] NSWCCA 236