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District Court 20 May 2020

R v Ibrahim, Moustafa

[2020] NSWDC 254

Drugs
CRIME TOBACCO SMUGGLING

Citation: R v Ibrahim, Moustafa [2020] NSWDC 254
Court: District Court of New South Wales
Date: 20 May 2020
Judge(s): Yehia SC DCJ

Background

The offender was a participant in a series of criminal enterprises uncovered by the Australian Federal Police during Operation Veyda between 2016 and 2017. The operation involved extensive surveillance and, critically, the deployment of an undercover operative known as "Zane," who introduced the offender to a "door" service purportedly guaranteeing the undetected importation of goods into Australia.

The offender pleaded guilty to offences spanning three overlapping syndicates: a tobacco smuggling syndicate, a conspiracy to import approximately 800 kg of MDMA linked to an overseas syndicate through a co-conspirator named Dib (syndicate one), and a second drug importation conspiracy involving a separate overseas supplier named Elmir (syndicate two). Co-conspirators including Watsford, Dib, Ahmad, and Fakhreddine were sentenced separately.

The central dispute at sentence concerned the extent of the offender's culpability, his role in the hierarchy of each syndicate, and whether the involvement of the undercover operative reduced his moral responsibility for the drug importation offences.

Legal Issues

  • Whether an apparent agreement between an offender and an undercover operative can constitute an overt act in furtherance of a conspiracy, or whether conspiratorial liability requires a meeting of minds between the offender and a genuine co-conspirator
  • Whether and to what extent the involvement, encouragement, or incitement of police through an undercover operation operates to reduce an offender's culpability for sentence purposes
  • The offender's role in the hierarchy of each syndicate and how that role compared to co-offenders including Watsford and Dib
  • Whether the offender was a willing or reluctant participant in the drug importation conspiracies
  • Whether the offender was party to the second transaction of the syndicate two conspiracy, given his limited direct involvement in communications between Zane and Elmir

Decision

Issue 1: Conspiratorial liability and the undercover operative

The court found that arrangements made solely between the offender and Zane, as an undercover operative acting pursuant to a controlled operation, did not constitute overt acts in furtherance of a conspiracy. Because Zane had no genuine criminal intention, no common design existed between them alone (at [173]). However, the court held that on those occasions where the offender participated in conversations involving a genuine co-conspirator, a meeting of minds existed sufficient to establish conspiratorial liability (at [173]). The court also found that the conversations and arrangements between the offender and Zane remained relevant to assessing his motivation and willingness to participate in the conspiracies (at [174]).

Issue 2: Role of the undercover operative in reducing culpability

Applying the principle from R v Taouk (1992), the court accepted that police involvement can reduce culpability where there is a real possibility that the offender would not have committed the offence but for that involvement. The court found there was no evidence the offender had contemplated drug importation or tobacco smuggling before Zane introduced the door service, and that he could not have reached the overseas syndicates without it (at [236]-[240]). On that basis, the court found the offender's culpability was diminished to some extent (at [241]). However, the diminution was not substantial because no coercion or pressure was applied, and the offender was a willing participant who embraced the opportunity for substantial financial gain once it was presented (at [242]).

Issue 3: The offender's role and comparison with co-offenders

The court rejected the submission that the offender's role was comparable to Watsford's. The court found he played a significantly more senior role, exercising autonomy and decision-making power, making introductions that were essential to establishing each drug conspiracy, vouching for Zane to reduce the risk of the enterprise being disrupted, and contributing financially to the door fee (at [210]-[212]). His role was found to be slightly higher than Dib's in the syndicate one conspiracy, because his participation guaranteed trust between the parties and he introduced an alternative supply source when tensions arose (at [271]). In the tobacco transactions, the court found the offender exercised control and directed others, playing a more senior role than both Watsford and Derbas (at [220]-[224]).

Issue 4: Willingness to participate in drug conspiracies

Despite the offender's periodic expressions of disinterest in the drug importations, the court was not persuaded he was a reluctant, unwilling, or naive participant (at [186]-[187]). The court rejected submissions that Zane manipulated or emotionally coerced him (at [252]). The court found the offender embraced the drug conspiracies, made the introductions necessary to facilitate them, stood to receive a substantial cut of the drugs, and participated in not one but two separate importation conspiracies (at [187]).

Issue 5: Second transaction of the syndicate two conspiracy

The court found the Crown had established the offender's conspiratorial liability for the second transaction beyond reasonable doubt. Even if no meeting of minds existed between the offender and Zane alone, the court found there was a meeting of minds between the offender and Elmir, evidenced by the offender's agreement to share a 20% commission, his vouching for Zane to ensure Elmir's continued participation, and his acknowledgment of the transaction (at [159]-[161]). The offender's direct involvement in this second transaction was nonetheless found to be significantly less than his role in the syndicate one conspiracy (at [162]-[163]).

Orders Made

  • An aggregate sentence of 30 years imprisonment was imposed, commencing 8 August 2017 and expiring 7 August 2047
  • A non-parole period of 18 years was fixed, commencing 8 August 2017 and expiring 7 August 2035
  • The offender is eligible for consideration for release on parole at the expiration of the non-parole period, subject to the guidance and supervision of Community Corrections

Key Takeaways

  • Arrangements made solely between an offender and an undercover operative do not constitute overt acts in furtherance of a conspiracy, because the operative lacks genuine criminal intent and no true meeting of minds exists; however, those arrangements remain relevant to assessing the offender's motivation and willingness to engage in criminal conduct (at [173]-[174]).

  • Under the principle in R v Taouk, police involvement through an undercover operation can reduce an offender's culpability for sentencing purposes, but only where the circumstances support a finding that the offender would not have committed the offence but for that involvement; the reduction is not substantial where no coercion occurred and the offender was a willing participant motivated by profit (at [231], [241]-[242]).

  • The District Court confirmed that the absence of any real risk of drugs reaching the community, because of the nature of the undercover operation, does not constitute a mitigating factor that reduces the offender's moral culpability; the offender's intention that the drugs reach Australia remains a primary consideration (at [194]).

  • An offender's periodic expressions of disinterest in criminal enterprises do not establish reluctance or unwillingness to participate where the totality of their conduct demonstrates a sustained commitment to the enterprise and an expectation of substantial financial gain (at [186]-[187]).

  • Where multiple co-offenders are sentenced separately, a court may reach findings in one proceeding that differ from findings in another, as a consequence of each proceeding being determined on its own evidence and submissions; the parity principle remains relevant but does not require identical findings across separate proceedings (at [10], [264]-[265]).

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 17A

Cases
- Cam Huynh Giang v R [2017] NSWCCA 25 DPP v Fabriczy [2010] VSCA 334 Haval Kada v The Queen; Hadil Kada v The Queen [2017] VSCA 339 Hili v The Queen; Jones v The Queen (2010) 242 CLR 520 Markarian v The Queen (2005) 228 CLR 357 Mihelic v R [2019] NSWCCA 2 Parris v R [2013] NSWCCA 5 R v Elomar & Ors [2010] NSWSC 10 R v Ong [2007] VSCA 206 R v Pham (2015) 256 CLR 550 R v Taouk (1992) 65 A Crim 387 Rex v Segal (1929) 45 CCC 32 Wong v The Queen; Leung v The Queen (2001) 207 CLR 584