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Court of Criminal Appeal 13 November 2019

Ebrahami v R

[2019] NSWCCA 273

DrugsFraud & dishonesty
CRIMINAL LAW

Citation: Ebrahami v R [2019] NSWCCA 273
Court: NSW Court of Criminal Appeal
Date: 13 November 2019
Judges: Leeming JA, Davies J, Hidden AJ

Background

The appellant pleaded guilty in the District Court to supplying a large commercial quantity of methylamphetamine (858.9 grams) and knowingly dealing with the proceeds of crime ($44,130 in cash). Both items were found near him in the rear yard of a property in North Parramatta in the early hours of 11 August 2017. The appellant had been discovered by police with a bloodied face and a fractured nose; the circumstances surrounding his injuries were never explained.

The appellant is an Iranian-born refugee in his early forties with a minor driving record. He had fled Iran in 2010 following imprisonment for attending a political protest and arrived in Australia by sea. He had no family in Australia, suffered from significant mental health issues including depression and anxiety, and had developed a severe methylamphetamine dependency roughly six months before the offences.

The sentencing judge in the District Court imposed an aggregate sentence of 11 years and 6 months imprisonment with a non-parole period of 7 years and 6 months. The appellant sought leave to appeal on two grounds: that the sentencing judge erred in assessing the objective seriousness of the supply offence, and that the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in assessing the objective seriousness of the drug supply offence
  • Whether the aggregate sentence of 11 years and 6 months was manifestly excessive in light of comparable cases and sentencing statistics that were not placed before the sentencing judge

Decision

On the first ground, the Court of Criminal Appeal rejected the challenge to the sentencing judge's assessment of objective seriousness. His Honour had placed the offence "slightly below the mid-range," noting that the appellant had given no evidence about his role in any broader drug enterprise. The Court accepted that finding and the appellant's counsel did not press the warehouse-keeper argument on appeal.

On the second ground, the Court found the aggregate sentence was manifestly excessive. Comparable cases provided by the appellant's appeal counsel, who had not appeared below, showed that the sentence sat well towards the top of the range. Critically, most of those comparable cases involved quantities significantly larger than the prescribed large commercial quantity and multiple similar offences. The Court was satisfied that, without the benefit of those comparable cases and statistics, the sentencing judge had imposed an aggregate sentence that could not be sustained.

The Court proceeded to resentence. It applied a 20% discount for the pleas of guilty (consistent with what the sentencing judge had done) and found special circumstances justifying a longer parole period. The approach to resentencing reflected the Court's satisfaction with the appellant's conduct in custody, including work release and English language study.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Aggregate sentence of 11 years and 6 months quashed
  • In lieu, aggregate sentence of 8 years imprisonment imposed, with a non-parole period of 5 years, commencing 11 August 2017
  • Indicative sentence for drug supply: 7 years with a non-parole period of 4 years
  • Indicative sentence for dealing with proceeds of crime: 2 years and 6 months
  • Eligible for parole from 11 August 2022

Key Takeaways

  • The Court of Criminal Appeal confirmed that an aggregate sentence can be manifestly excessive even where objective seriousness has been correctly assessed, if the sentence is not anchored to comparable cases and statistics.
  • A positive duty rests on both Crown and defence representatives to place relevant comparable cases and sentencing statistics before the sentencing judge. The Court emphasised that District Court judges carry heavy workloads across the full range of indictable offences and are entitled to expect that assistance.
  • Where comparable cases are not put to the sentencing judge at first instance, an appeal court may be left to correct the resulting error on resentence, but the omission is treated as a failure of the representatives, not the judge.
  • Davies J added a pointed observation that this Court sees such appeals too frequently, echoing the principle stated in Zreika v R [2012] NSWCCA 44 that all relevant matters must be placed before the sentencing court.
  • Findings of special circumstances can justify a departure from the standard ratio between head sentence and non-parole period, particularly where rehabilitation prospects and conditions of imprisonment are relevant considerations.

Legislation and Cases Referenced

Legislation
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 29
- Crimes Act 1900 (NSW), s 193B

Cases
- Zreika v R [2012] NSWCCA 44
- Hili & Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Abdul v R [2019] NSWCCA 18
- Assam v R [2019] NSWCCA 12
- Matu v R [2019] NSWCCA 23
- Mihelic v R [2019] NSWCCA 2
- Battersby v R [2018] NSWCCA 141
- Gilmour v R [2018] NSWCCA 295
- Healey v R [2018] NSWCCA 214
- DS v R [2017] NSWCCA 37
- Salafia v R [2015] NSWCCA 141
- Mulato v R [2006] NSWCCA 282