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Court of Criminal Appeal 18 September 2020

Ibrahim v R

[2020] NSWCCA 241

Drugs
CRIME APPEALS APPEAL AGAINST SENTENCE NO LESSER SENTENCE WARRANTED APPLICATION FOR LEAVE FILED OUT OF TIME

Citation: Ibrahim v R [2020] NSWCCA 241
Court: NSW Court of Criminal Appeal
Date: 18 September 2020
Judge(s): Payne JA; Beech-Jones J; Fagan J

Background

The applicant was sentenced in October 2014 to 16 years imprisonment, with a non-parole period of 10 years, for importing a commercial quantity of opium into Australia contrary to s 307.1 of the Criminal Code (Cth). He had been arrested in March 2011 after taking delivery of 176 kg of opium concealed in a freight consignment from Iran. The maximum penalty for the offence is life imprisonment.

The applicant's trial commenced in June 2013. On day six of what had been estimated as a five-week trial, he changed his plea to guilty. The sentencing judge characterised the change of plea as an acceptance of the inevitable given the strength of the Crown case, and allowed a 10% discount, but did not separately assess any utilitarian value of the plea.

The applicant sought leave to appeal against his sentence, arguing that the sentencing judge erred by failing to take into account the utilitarian value of his guilty plea. The application was filed out of time, including more than two and a half years after the relevant Court of Criminal Appeal decision on this point was handed down in early 2018.

  • Whether the sentencing judge erred by failing to assess and take into account the utilitarian value of the guilty plea, in light of the principles later confirmed in Xiao v R (2018)
  • Whether, if error was established, a lesser sentence would nonetheless be warranted in law
  • Whether leave to appeal should be granted, given the application was filed significantly out of time

Decision

Payne JA acknowledged that, through no fault of the sentencing judge, an error had technically occurred. The sentence was passed before the Court of Criminal Appeal's 2018 decision in Xiao v R, which clarified the obligation to assess the utilitarian value of a guilty plea separately. That error was therefore conceded.

However, the Court found that the utilitarian value of a plea entered on day six of a five-week trial was, in the circumstances, negligible. By that point, the substantial costs of preparing and embarking upon the trial had already been incurred: counsel had been briefed, witnesses marshalled, a jury empanelled, and the Crown was well into presenting its case. The opportunity for any meaningful utilitarian saving had effectively passed.

Payne JA concluded that, even on the assumption leave were granted and the Court proceeded to resentence, no lesser sentence would be warranted in law, applying the test in Kentwell v The Queen (2014) 252 CLR 601. This conclusion took into account four matters raised by the applicant: his custodial record, his remorse, his current health, and the effects of the COVID-19 pandemic.

Because the appeal had no arguable prospect of success, the Court declined to grant the considerable enlargement of time that would have been required. Leave to appeal was refused.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the obligation to assess the utilitarian value of a guilty plea, as clarified in Xiao v R, does not automatically produce a lesser sentence where the plea was entered very late in the trial process.
  • A guilty plea entered on day six of a five-week trial attracted negligible utilitarian value, because the significant costs of preparing and commencing the trial had already been incurred by that point.
  • Under the Kentwell v The Queen principle, even where a sentencing error is established, an appeal will not succeed if no lesser sentence would be warranted in law having regard to all relevant circumstances.
  • Refusing leave, the Court held that the absence of any arguable prospect of success on the merits was a sufficient basis to decline the enlargement of time required for an out-of-time application, even where the delay was partly attributable to a change in the law.
  • Personal circumstances raised by an applicant on resentencing, including health concerns and the impact of the COVID-19 pandemic, were considered but did not alter the outcome where the original sentence remained appropriate.

Legislation and Cases Referenced

Legislation
- Criminal Code (Cth), s 307.1

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4