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Court of Criminal Appeal 15 August 2019

Ibrahim v R

[2019] NSWCCA 188

Firearms & weapons
CRIME FIREARMS OFFENCES APPEAL AGAINST SENTENCE OFFENDERS DISCOUNT FOR PLEA OF GUILTY APPEAL AGAINST SENTENCE

Citation: Ibrahim v R [2019] NSWCCA 188
Court: NSW Court of Criminal Appeal
Date: 15 August 2019
Judges: Bathurst CJ (with Price J and N Adams J agreeing)

Background

The applicant pleaded guilty to conspiring to unlawfully supply pistols or prohibited firearms. The conspiracy involved four co-offenders and was directed at supplying Glock pistols to a purchaser who was, in fact, an undercover police operative. Intercepted phone calls and surveillance recordings established the applicant's central role in organising and funding the scheme.

The applicant was sentenced to nine years' imprisonment with a non-parole period of six years and six months. At sentencing, the judge found the applicant to be "the controlling mind," "the essential beneficiary," and the most significant participant in the conspiracy. The sentence was backdated and partially accumulated on an earlier, unrelated term of imprisonment.

The applicant sought leave to appeal on the grounds that the sentencing judge erred in assessing his criminality, applied a lower guilty plea discount than that given to his co-offenders, and failed to give meaningful effect to a finding of special circumstances when setting the non-parole period.

  • Whether the sentencing judge made factual findings about the applicant's role in the conspiracy that were not available on the evidence
  • Whether the sentencing judge erred by giving the applicant a 10% guilty plea discount rather than the 15% discount given to co-offenders who entered pleas only days earlier
  • Whether the sentencing judge failed to give meaningful effect to a finding of special circumstances when the partial accumulation of sentences resulted in an effective overall non-parole period only marginally below the statutory ratio

Decision

On the factual findings issue, Bathurst CJ held that it was open on the evidence to find the applicant was the "moving party" behind the conspiracy and that he was funding the firearms purchase. However, there was insufficient evidence to establish beyond reasonable doubt that the applicant was "the essential beneficiary," as no adequate evidence of the proposed division of proceeds had been established. It was therefore unnecessary to determine whether the "controlling mind" finding was also in error.

On the guilty plea discount, the Crown conceded the sentencing judge erred. The applicant's plea was entered on 17 November 2016, only three days after two co-offenders and one day after a third. That short interval did not justify reducing the discount from 15% to 10%.

On the special circumstances point, the Court found that while the sentencing judge identified special circumstances and expressed an intention to reduce the statutory non-parole proportion, he failed to carry that intention through in any meaningful way. Once the accumulation on the earlier sentence was taken into account, the actual adjustment to the non-parole period amounted to only marginally more than one month. That fell well short of reflecting the finding of special circumstances.

On resentencing, Bathurst CJ applied a 15% guilty plea discount and reduced the non-parole proportion to 70% of the total term. This produced a revised sentence of eight years and six months, with a non-parole period of five years and nine months.

Orders Made

  • Extension of time for notice of application for leave to appeal granted up to and including 18 February 2019
  • Leave to appeal granted
  • Appeal allowed
  • Original sentence quashed and replaced with a term of imprisonment of 8 years and 6 months commencing 9 December 2014, with a non-parole period of 5 years and 9 months expiring 8 September 2020 and a balance of term of 2 years and 9 months expiring 8 June 2023
  • Earliest eligible parole release date: 8 September 2020

Key Takeaways

  • A factual finding adverse to a defendant at sentencing must be established beyond reasonable doubt; where the evidence is insufficient to sustain a particular characterisation of the offender's role (here, "essential beneficiary"), that finding cannot stand.
  • A small difference in the timing of guilty pleas among co-offenders does not, without more, justify a lower discount for one co-offender than the others; three days' difference was insufficient to warrant reducing the discount from 15% to 10%.
  • Where a sentencing court finds special circumstances and forms an intention to reduce the non-parole period below the statutory ratio, the reduction must be genuine and meaningful in practical effect, not merely nominal after accumulation calculations are applied.
  • Partial accumulation of a new sentence upon an existing sentence requires the sentencing court to factor the accumulated structure into any adjustment made for special circumstances, so that the stated intention translates into an actual variation in the overall non-parole period.
  • In resentencing following a successful appeal, the Court of Criminal Appeal must itself assess whether a lesser sentence is warranted in law, applying the principles in Kentwell v The Queen (2014) 252 CLR 601.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), s 474.15(1)
- Firearms Act 1996 (NSW)

Cases:
- Borg v R [2019] NSWCCA 129
- El-Ahmad v R [2015] NSWCCA 65
- Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- PG v R [2017] NSWCCA 179
- R v Fidow [2004] NSWCCA 172
- R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
- R v Sutton [2004] NSWCCA 225
- Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25
- Tyler v The Queen (2007) 173 A Crim R 458