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Court of Criminal Appeal 10 February 2016

Ibrahim v R

[2016] NSWCCA 6

Drugs
CRIMINAL LAW APPEAL SENTENCE APPLICANT PLEADED GUILTY MID NO INJUSTICE ESTABLISHED NO ERROR ESTABLISHED CRIMINAL LAW

Citation: Ibrahim v R [2016] NSWCCA 6
Court: Court of Criminal Appeal, NSW
Date: 10 February 2016
Judges: Macfarlan JA, Rothman J, Bellew J

Background

The applicant pleaded not guilty at the outset of a joint trial with her brother for offences arising from the importation of approximately 176 kilograms of opium concealed in glass jars within a shipping container from Iran. On the seventh day of trial, she changed her plea to guilty on a charge of attempting to possess a commercial quantity of a border controlled drug, contrary to the Criminal Code 1995 (Cth). The Crown accepted the plea in full satisfaction of the indictment, and a further drug possession offence was taken into account on sentence under s 16BA of the Crimes Act 1914 (Cth).

The applicant was sentenced on 17 October 2014, after sentencing proceedings spanning more than a year, to 12 years and 6 months imprisonment commencing 17 March 2011, with a non-parole period of 7 years and 6 months. A psychologist's report tendered at the sentence hearing diagnosed the applicant with mild mental retardation, but no submissions were put to the sentencing judge about the principles applicable to mentally ill offenders.

The applicant sought leave to appeal on two grounds: that the sentencing judge failed to approach her mental health in a principled way, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to apply the principles applicable to mentally ill offenders, given the psychologist's diagnosis of mild mental retardation
  • Whether any serious injustice arose from defence counsel's failure to put relevant mental health submissions to the sentencing judge
  • Whether the sentence of 12 years and 6 months imprisonment with a 7 year and 6 month non-parole period was manifestly excessive in all the circumstances

Decision

On the mental health ground, the Court of Criminal Appeal found no error and no injustice. Because no submissions on the applicable principles had been put to the sentencing judge, the sentencing court could not be criticised for failing to apply them. The applicant was required to demonstrate that a serious injustice had resulted from the omission by her counsel, and the Court found she had not done so.

On manifest excess, the Court examined the objective seriousness of the offending in detail. The sentencing judge found the applicant's role to be substantial and deliberate. Intercepted telephone conversations showed she was aware of the nature of the importation from an early stage, including a reference she made to "nineteen" boxes (the exact number concealing the drugs) and her question to a co-offender about whether he had packed the boxes "with his own hands." The Court accepted those findings and rejected any characterisation of the offending as naive or unsophisticated.

The Court also noted that the additional possession offence, taken into account under s 16BA, was not a trivial matter and was properly reflected in the overall sentence. Consistency in sentencing does not require numerical equivalence across cases; the applicant was required to show the sentence was unreasonable or plainly unjust, and she failed to do so.

Rothman J added a brief observation that the relative weight given to general deterrence versus subjective circumstances depends on both the nature of the offence and the individual offender, forming part of the intuitive synthesis required in sentencing.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error is established where a sentencing judge does not apply principles applicable to mentally ill offenders if those principles were never raised by counsel; the applicant must demonstrate a resulting serious injustice, not merely an omission.
  • A mid-trial guilty plea does not automatically attract reduced culpability where intercepted communications and other evidence establish a substantial and knowing role in a serious drug importation.
  • Under s 16BA of the Crimes Act 1914 (Cth), offences taken into account on sentence carry genuine weight and must be meaningfully reflected in the overall penalty, not merely noted.
  • Consistency in sentencing does not mean numerical equivalence across comparable cases; the test for manifest excess remains whether the sentence was unreasonable or plainly unjust (Dinsdale v The Queen (2000) 202 CLR 321).
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that general deterrence retains significant weight in commercial drug importation cases, even where subjective circumstances such as a mental health diagnosis are present.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16BA
- Criminal Code 1995 (Cth), ss 11.1, 307.5

Cases
- Dicianni v R; Pintabona v R [2015] NSWCCA 201
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1
- Director of Public Prosecutions (Cth) v El Kaharni (1990) 21 NSWLR 370
- Garcia v R [2013] NSWCCA 241
- R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152
- R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106
- R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524
- R v Todd (NSWCCA, unreported, 7 February 1994)
- Romero v R [2011] VSCA 45; (2011) 32 VR 486
- The Queen v Pham [2015] HCA 39
- Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
- Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460