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Court of Criminal Appeal 1 August 2022

Ibrahim v R

[2022] NSWCCA 161

DrugsFraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE TOBACCO SMUGGLING COMMONWEALTH OFFENCES AGGREGATE SENTENCE

Citation: Ibrahim v R [2022] NSWCCA 161
Court: NSW Court of Criminal Appeal
Date: 1 August 2022
Judge(s): Harrison J, Davies J (primary judgment), Hallen J

Background

The appellant pleaded guilty in the Local Court to five Commonwealth offences arising from his participation in three criminal syndicates between November 2016 and July 2017. The offences included two conspiracies to import commercial quantities of MDMA (totalling over 1,300 kg across both conspiracies), tobacco smuggling, and multiple counts of dealing with instruments of crime involving millions of dollars. The offending was uncovered through a major controlled operation conducted by the Australian Federal Police, in which an undercover operative (referred to as "UCO Zane") played a central role in presenting the appellant with opportunities to engage in the criminal activity.

The appellant was committed to the District Court for sentence, where Yehia SC DCJ sentenced him to an aggregate term of 30 years' imprisonment with a non-parole period of 18 years. The sentencing judge found that while the appellant would not have committed the offences but for the undercover operative's involvement, he was nonetheless a willing, trusted participant who expected significant financial gain, and that his culpability was diminished but not substantially.

The appellant sought leave to appeal, challenging multiple aspects of the sentence: the treatment of the undercover operative's role in reducing culpability, the relevance of deterrence in the context of a controlled operation, the 25% guilty plea discount, parity with a co-offender, and whether the aggregate sentence was manifestly excessive.

  • Whether the sentencing judge erred in finding that the undercover operative's involvement did not substantially diminish the appellant's culpability
  • Whether there is a distinction between coercive and non-coercive police conduct for the purposes of assessing culpability reduction
  • Whether the sentencing judge adequately addressed specific and general deterrence given the involvement of law enforcement in creating the opportunity to offend
  • Whether the 25% discount for the utilitarian value of the guilty plea was appropriate
  • Whether the appellant had a justifiable sense of grievance on parity grounds compared to a co-offender
  • Whether the aggregate sentence of 30 years was manifestly excessive
  • Whether an aggregate sentence could lawfully be imposed for multiple Commonwealth offences

Decision

The Court of Criminal Appeal (Davies J, with Harrison and Hallen JJ agreeing) granted leave to appeal and allowed the appeal, but only on the ground that the aggregate sentence was manifestly excessive. On all other grounds, the Court upheld the sentencing judge's approach.

The Court confirmed that the assessment of culpability arising from police involvement in an offence forms part of the instinctive synthesis of sentencing. A challenge to that assessment must identify error in the sense established by House v The King (1936) 55 CLR 499, and a bare argument that insufficient weight was given to police involvement does not establish such error. The Court rejected the appellant's contention that a finding of causal connection between police conduct and the offending necessarily requires a substantial reduction in culpability. The Court also rejected any suggested dichotomy between coercive and non-coercive police behaviour, holding instead that the impact of police involvement falls along a spectrum, and coercion is simply one factor that would increase the degree of diminution.

On deterrence, the Court found no error in the sentencing judge's treatment of both specific and general deterrence. Because the issue of how police involvement bore on deterrence was not squarely raised before the sentencing judge, no error was established on appeal. On parity, the Court held that where the same judge sentences multiple co-offenders with detailed reasons, appellate courts will be cautious before finding a justifiable sense of grievance, and the disparity here was not gross, marked, or glaring. The 25% plea discount was also upheld as appropriate.

On manifest excess, however, the Court found that the undiscounted indicative sentences for the two narcotics conspiracies (28 and 30 years respectively) fell outside the range of reasonable sentences for the appellant's offending. The notional accumulation adopted by the sentencing judge was also found to be unreasonable given the inter-relationship of all offences in time, money, and personnel. The Court re-sentenced the appellant to an aggregate sentence of 25 years with a non-parole period of 15 years. The Court also confirmed, following DPP (Cth) v Beattie, that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available for multiple Commonwealth offences.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court on 20 May 2020 quashed
  • Appellant re-sentenced to an aggregate term of 25 years' imprisonment commencing 8 August 2017 and expiring 7 August 2042, with a non-parole period of 15 years expiring 7 August 2032

Key Takeaways

  • A finding that an offender would not have committed an offence but for the involvement of an undercover operative does not automatically require a substantial reduction in culpability; the sentencing court must assess the full nature of the offender's participation, including willingness, enthusiasm, and expected financial gain.
  • The assessment of culpability reduction arising from police involvement is part of the instinctive synthesis of sentencing. Appellate challenge requires demonstrable error of the House v The King kind, and disagreement about the weight assigned to a sentencing factor does not itself constitute error.
  • No binary distinction exists between coercive and non-coercive police conduct for sentencing purposes. Police involvement operates along a spectrum, and coercion is one aggravating element within that spectrum rather than a threshold requirement before culpability reduction applies.
  • Where a single judge sentences multiple co-offenders and gives detailed comparative reasons, the Court of Criminal Appeal confirmed it will be cautious before concluding that one offender has a justifiable sense of grievance arising from the outcome.
  • The Court of Criminal Appeal confirmed that an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) is available when sentencing for multiple Commonwealth offences, following DPP (Cth) v Beattie.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 15GI(2)(f), 19(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Code (Cth), ss 11.2(1), 11.5(1), 302.2(1), 307.1(1), 400.3(1)
- Customs Act 1901 (Cth), s 233BABAD(1)
- Evidence Act 1995 (Cth), s 138

Cases
- House v The King (1936) 55 CLR 499
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
- Haval Kada v The Queen [2017] VSCA 339
- R v Taouk (1992) 65 A Crim R 387
- R v N [1999] NSWCCA 187
- Dwayhi v R; Bechara v R [2011] NSWCCA 67
- Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191
- Director of Public Prosecutions (Vic) v Kumas [2021] VSCA 215
- Majid v R [2010] NSWCCA 121
- Morgan v R [2017] NSWCCA 269
- Gill v R [2010] NSWCCA 236
- Lam v R [2014] NSWCCA 5
- Patel v R [2022] NSWCCA 3
- R v Delzotto [2022] NSWCCA 117
- R v Ibrahim, Moustafa [2020] NSWDC 254