AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
2
Court of Criminal Appeal 6 October 2023

Dib v Rex

[2023] NSWCCA 243

Drugs
SENTENCING CONSIDERATION OF INTERSTATE AUTHORITIES FEDERAL OFFENDERS CONSISTENCY CRIME APPEALS APPEAL AGAINST SENTENCE

Citation: Dib v Rex [2023] NSWCCA 243
Court: NSW Court of Criminal Appeal
Date: 6 October 2023
Judge(s): Simpson AJA (primary reasons); Garling J and Ierace J agreeing

Background

The applicant pleaded guilty in the District Court to conspiracy to import a commercial quantity of MDMA, contrary to the Criminal Code (Cth). The offending spanned six months in 2017 and involved a plan, ultimately frustrated by Dutch police, to import just under 800 kilograms of MDMA with a pure weight of 594.43 kilograms. The applicant was one of several co-conspirators and was actively involved in funding and coordinating the importation. He was sentenced to 18 years and 2 months imprisonment with a non-parole period of 12 years.

Before committing this offence, the applicant had served more than three years and eight months in custody following a murder conviction from which he was ultimately acquitted on appeal. That custody was entirely unrelated to the drug importation. He argued at sentencing that his sentence should be backdated or reduced to account for that wrongful imprisonment, but the sentencing judge declined, treating it instead as a subjective circumstance.

A co-offender sentenced by the same judge, Mr Ibrahim, subsequently succeeded on his own sentence appeal. After resentencing, Mr Ibrahim's indicative sentence for the conspiracy offence was two months shorter than the sentence imposed on the applicant, even though the sentencing judge had assessed Mr Ibrahim as more culpable. The applicant then sought leave to appeal out of time on three grounds: the wrongful custody issue, parity with Mr Ibrahim's post-appeal sentence, and manifest excess.

  • Whether a sentencing court in NSW can backdate or reduce a sentence to account for time wrongly spent in custody on an unrelated charge for which the offender was later acquitted on appeal.
  • Whether the applicant suffered a justifiable sense of grievance arising from the disparity between his sentence and the lower post-appeal sentence of his more culpable co-offender, Mr Ibrahim.
  • Whether the original sentence of 18 years and 2 months was manifestly excessive.

Decision

Ground 1: Wrongful custody on an unrelated charge. The Court confirmed that NSW law is well settled on this point: a sentencing court does not adjust a sentence, whether by backdating or quantified reduction, to account for uncredited time spent in custody on an unrelated matter. The Court examined interstate decisions and considered whether any common law principle recognised in other jurisdictions would warrant departing from the established NSW position. It found no such principle, and declined to depart from existing authority.

Ground 2: Parity. The Court accepted that the applicant was left with a justifiable sense of grievance. The sentencing judge had assessed Mr Ibrahim as more culpable than the applicant and imposed a longer sentence on him accordingly. Following Mr Ibrahim's successful appeal, his indicative sentence fell below the applicant's, inverting the relativity the sentencing judge had deliberately established. The Court held that unwarranted disparity of this kind can itself constitute an error warranting intervention, without the need to identify a further House v The King-style error in the exercise of the sentencing discretion.

The Court distinguished this situation from cases where a full re-exercise of the sentencing discretion is required. Because there was no error in the original sentencing discretion as exercised, the appropriate remedy was simply to restore the relativity the sentencing judge had set. Recalculating from Mr Ibrahim's post-appeal indicative sentence and maintaining the 30% discount for the guilty plea, the Court arrived at a revised sentence.

Ground 3: Manifest excess. The Court found the original sentence was not manifestly excessive, and this ground was dismissed.

Orders Made

  • The time to appeal was extended to 6 September 2022.
  • Leave to appeal was granted.
  • The District Court sentence of 27 April 2020 was set aside.
  • The applicant was resentenced to imprisonment with a non-parole period of 10 years and 4 months, commencing 8 August 2017 and expiring 7 December 2027, with a balance of term of 5 years and 3 months, expiring 7 March 2033.

Key Takeaways

  • In NSW, a sentencing court will not backdate or reduce a sentence to account for time wrongly spent in custody on a separate, unrelated charge, even where the offender was subsequently acquitted on appeal. This position remains settled and was not displaced by any identified interstate authority or common law principle.
  • Unwarranted disparity between an applicant's sentence and that of a co-offender, arising from the co-offender's successful appeal, can constitute a standalone appellate error. The Court of Criminal Appeal does not need to identify an additional House v The King error before intervening on parity grounds.
  • Where the original sentencing discretion was soundly exercised and parity is the sole basis for intervention, restoring the relativity between co-offenders' sentences is the appropriate remedy. A full re-exercise of the sentencing discretion is not required in those circumstances.
  • The Court of Criminal Appeal confirmed that a ground of manifest excess and a ground of parity can operate independently: dismissing the manifest excess ground does not prevent the court from allowing an appeal on parity.
  • Assessing comparative culpability between co-offenders is a deliberate exercise by the sentencing judge, and any subsequent disturbance of one co-offender's sentence that inverts those relativities is capable of generating a justifiable grievance for the other.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth), ss 11.5, 302.2, 307.1, 307.2
- Crimes Act 1914 (Cth), ss 16A, 16BA, 16E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 53A
- Criminal Appeal Act 1912 (NSW), ss 6, 6AA
- Judiciary Act 1903 (Cth), s 68
- Sentencing Act 1991 (Vic), s 18

Key Cases:
- Ibrahim v R [2022] NSWCCA 161
- Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193
- Jones v The Queen (1993) 67 ALJR 376
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29
- Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Green v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Dib v R [2016] NSWCCA 15
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
- Karpinski v R (2011) 32 VR 85; [2011] VSCA 94