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Court of Criminal Appeal 20 June 2022

Ibrahim v R

[2022] NSWCCA 134

Drugs
CRIME A PPEALS A PPEAL AGAINST SENTENCE SUPPLY OF PROHIBITED DRUG COMMERCIAL AND INDICTABLE QUANTITY NO ERROR DEMONSTRATED

Citation: Ibrahim v R [2022] NSWCCA 134
Court: Court of Criminal Appeal, New South Wales
Date: 20 June 2022
Judge(s): Ward P, Adamson J, Dhanji J (judgment delivered by Dhanji J)

Background

The applicant was sentenced in the District Court at Campbelltown in May 2020 following convictions for a range of drug supply offences. The principal charges concerned agreeing to supply 3.7 kilograms of gamma-butyrolactone (GBL, a prohibited drug) in a commercial quantity, and separately supplying 49 grams of methylamphetamine and 313.3 grams of GBL in indictable quantities. Police had intercepted over 400 calls and messages during a strike force investigation into a drug supply network.

The sentencing judge found the applicant had acted as a "middleman" supplying an associate, and that the offending was motivated by funding his own drug addiction rather than commercial greed. The applicant received an aggregate sentence of six years imprisonment with a non-parole period of three years and seven months. He was also convicted without penalty for a number of lesser related offences including drug possession, driving while disqualified, and unlawful possession of property.

The applicant sought leave to appeal, arguing errors in the sentencing judge's assessment of the objective seriousness of the offending and the weight given to his deprived background in reducing moral culpability, and contending the overall sentence was unreasonable or plainly unjust.

  • Whether the sentencing judge erred in assessing the objective seriousness of the drug supply offences
  • Whether the sentencing judge erred in assessing the significance of the applicant's deprived background to his moral culpability
  • Whether the aggregate sentence of six years was unreasonable or plainly unjust

Decision

On objective seriousness, the Court of Criminal Appeal found no error in Hatzistergos DCJ's assessment. The sentencing judge had correctly identified the relevant factors from the case law, taken account of the quantities involved, the applicant's role as a middleman, the use of coded communications, and the absence of commercial motivation. The resulting assessments placing sequence 1 in the broad mid-range, sequence 3 towards the lower range, and sequence 15 below mid-range were each open on the evidence.

On the deprived background ground, the applicant argued the sentencing judge should have gone further in reducing moral culpability by reference to his disadvantaged upbringing, applying the principles in Bugmy v The Queen (2013) 249 CLR 571. The Court acknowledged the applicant's background but found the sentencing judge had in fact accepted that moral culpability was reduced, particularly by reference to evidence of the applicant's anxiety and depression. The Court confirmed that the weight to be given to such evidence, balanced against the competing purposes of sentencing, was a matter for the sentencing judge. No error was established.

On the question of whether the sentence was unreasonable or plainly unjust, the Court was satisfied the six-year aggregate, with its indicative sentences and non-parole period, fell within the available range. The Court noted the non-parole period reflected a generous reduction for special circumstances, appropriately recognising the applicant's rehabilitative progress. Statistical comparisons and results in other drug supply cases referred to by the applicant were not found to be of assistance on the particular facts.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • No error was established in the sentencing judge's assessment of objective seriousness where the judge correctly identified the relevant factors, considered the drug quantities and the applicant's role, and reached assessments that were open on the evidence.
  • Under the principles in Bugmy v The Queen, a sentencing court is required to consider a deprived background when assessing moral culpability, but the weight given to that evidence alongside competing sentencing purposes remains a matter of judicial discretion.
  • A finding that moral culpability is "reduced somewhat" by mental health evidence does not require a sentencing judge to give that factor maximum or determinative weight, provided the judge has genuinely engaged with the evidence.
  • In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that aggregate sentence comparisons with other drug supply cases are of limited assistance, and that the proper comparison, where relevant, is between the indicative sentence for the principal offence and sentences imposed in comparable cases for that specific offence type.
  • A non-parole period reflecting a generous reduction for special circumstances can be appropriate where the sentencing record demonstrates genuine rehabilitative progress by the offender.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 53A
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Criminal Procedure Act 1986 (NSW), s 166
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25
- Poisons and Therapeutic Goods Act 1966 (NSW), s 16
- Road Transport Act 2013 (NSW), ss 54, 205A

Cases
- Bugmy v The Queen (2013) 249 CLR 571
- Hoskins v R [2021] NSWCCA 169
- Kentwell v The Queen (2014) 252 CLR 601
- Lloyd v R [2022] NSWCCA 18
- Markarian v The Queen (2006) 228 CLR 357
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120
- Nasrallah v R [2021] NSWCCA 207
- Newman (a pseudonym) v R [2019] NSWCCA 157
- Obeid v R (2017) 96 NSWLR 155
- R v Henry (1999) 46 NSWLR 346
- R v Ibrahim [2020] NSWDC 257
- R v Millwood [2012] NSWCCA 2
- The Queen v Olbrich (1999) 199 CLR 270
- Vu v R [2006] NSWCCA 188
- Zreika v R [2012] NSWCCA 44