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District Court 21 May 2020

R v Ibrahim

[2020] NSWDC 257

Drugs
SENTENCING SECTION 166 MATTERS OFFENDER CAUGHT DURING POLICE OPERATION SELF RANGE OF OBJECTIVE SERIOUSNESS PLEA OF GUILTY

Citation: R v Ibrahim [2020] NSWDC 257
Court: District Court of New South Wales
Date: 21 May 2020
Judge: Hatzistergos DCJ

Background

The offender, who came to Australia as a refugee, was identified during a police strike force operation investigating the ongoing supply of prohibited drugs by an associate. Police intercepted over 400 phone calls and text messages, during which the offender agreed to supply 3.7 kilograms of gamma butyrolactone (GBL) and separately supplied 49 grams of methylamphetamine. He was arrested in Newtown in the early hours of 9 August 2018 and found in possession of further drugs, disqualified-driver-related contraventions, diazepam, MDMA, dexamphetamine, and cards suspected of being unlawfully obtained.

The offender appeared for sentence on three principal drug supply charges and five additional matters dealt with on a Section 166 certificate (meaning they were taken into account at sentencing without a separate conviction being recorded for each). The principal charges carried maximum penalties of up to 20 years imprisonment. At the time of offending, the offender was estranged from his family, living in difficult circumstances, and supplying drugs partly to support his own addiction.

  • Whether the drug offences were aggravated by planning or commission for financial gain under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • The objective seriousness of each offence and where each fell on the range
  • Whether self-induced intoxication at the time of offending could mitigate the sentence
  • Whether anxiety and depression reduced the offender's moral culpability
  • The applicable discount for the guilty plea, including whether ss 25D and 25E of the Crimes (Sentencing Procedure) Act 1999 applied to limit that discount
  • How the offender's refugee background, history of drug abuse, mental health, autoimmune disease, genuine remorse, and rehabilitation efforts bore on the sentence
  • The potential impact of COVID-19 on the offender's conditions of custody
  • The structure of the aggregate sentence under the totality principle

Decision

Objective seriousness: Hatzistergos DCJ rejected the Crown's submissions that planning and financial gain were aggravating factors. Planning is ordinarily inherent in drug supply offences and can only aggravate if it exceeds what would normally be expected, which was not established here. The financial gain factor also did not apply because the offender's unchallenged evidence was that he supplied drugs to fund his own addiction rather than for profit. The offending was assessed as ranging from the lower end to the mid-range of objective seriousness across the various charges.

Subjective factors: The offender's history of anxiety and depression was found to reduce his moral culpability. By contrast, self-induced intoxication at the time of offending provided no mitigating effect. His refugee background, history of trauma, drug dependency, and the difficulties he had experienced were taken into account, as were his genuine remorse and his notably impressive rehabilitation efforts, which gave rise to good prospects of rehabilitation.

Guilty plea discount: A 25% discount applied to Sequence 3 and the Section 166 matters. The court considered whether ss 25D and 25E of the Crimes (Sentencing Procedure) Act 1999 operated to limit the discount available for the plea, resolving that question in the context of the timing and circumstances of the offender's cooperation and admissions. The potential impact of COVID-19 on the offender, particularly given his autoimmune condition, was acknowledged as a relevant consideration in fixing conditions of custody.

Sentence structure: Applying the totality principle, the court imposed an aggregate sentence with the non-parole period set to reflect the overall criminality across the principal and ancillary offences, with the earliest possible release date set at 18 April 2023.

Orders Made

  • Aggregate sentence of imprisonment imposed across the principal drug supply charges and Section 166 matters
  • Non-parole period fixed, with the offender eligible for release to parole from 18 April 2023
  • Licence disqualification period imposed in relation to the driving-whilst-disqualified offence (Sequence 9)

[Full details of the head sentence length and individual sequences are not fully reproduced in the provided text.]

Key Takeaways

  • Planning is generally an inherent feature of drug supply offences; it only operates as an aggravating factor under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999 where the degree of planning exceeds what would ordinarily be expected for that type of offence.
  • Where an offender supplies drugs to fund personal addiction rather than for commercial profit, the "financial gain" aggravating factor under s 21A(2)(o) does not automatically apply simply because money changes hands.
  • Self-induced intoxication at the time of offending does not reduce an offender's moral culpability or otherwise mitigate sentence in New South Wales.
  • A diagnosed mental health condition such as anxiety and depression can reduce moral culpability and thereby influence the sentencing outcome, provided the connection between the condition and the offending is established.
  • The potential impact of COVID-19 on an offender with a serious underlying health condition (here, an autoimmune disease) is a factor a sentencing court may take into account when assessing the conditions of custody.

Legislation and Cases Referenced

Legislation:
- Drugs, Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1), 25(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5(1), 10A, 21A, 22, 24, 25A, 25B, 25D, 25E, 54B
- Criminal Procedure Act 1986 (NSW), s 166(1)
- Crimes Act 1900 (NSW), s 527C(1)(a)
- Road Transport Act 2013 (NSW), s 54(1)(a)
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16(1)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 276

Cases:
- R v Henry (1999) 46 NSWLR 346
- R v Thomson and Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- R v Webb (2004) 149 A Crim R 167
- Vu v R [2006] NSWCCA 188
- R v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97
- Cicciarello v R [2009] NSWCCA 272
- R v West [2014] NSWCCA 250
- Parente v R (2017) 96 NSWLR 633; [2017] NSWCCA 284
- Huang v R [2017] NSWCCA 312
- R v Qi [2019] NSWCCA 73
- R v RC [2020] NSWCCA 76
- Scott v R [2020] NSWCCA 81