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Dib v The King [2023] NSWCCA 243

See full judgment: Austlii.

The offender was sentenced following a plea of guilty to 1 count of conspiring to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Commonwealth Criminal Code. Original sentence imposed 18 years and 2 months imprisonment with a non-parole period of 12 years. Offender appealed on the grounds that the sentencing judge failed to credit pre-sentence custody, that the sentencing judge erred in assessing parity, and that the sentence was manifestly excessive.

Commencement of Sentence: Ground concerns the period which offender spent in custody following conviction for offences for which they were subsequently acquitted. The sentencing judge calculated the total period of custody not referable to any conviction to be ‘in the order of 5 ½ years’. In NSW, offenders will not be given quantified reductions in sentence to take account of periods in custody other than those referable to the offence for which sentence is to be imposed. On one reading, Crimes Act 1914 s 16E(1) might pick up a law of a state or territory that required or permitted a court to recognise time wrongly served in custody by the offender in relation to unrelated offending. However, there is in NSW no such statute. If offender had established that a ‘practice’ existed in Victoria, or other states and territories, of the kind for which they contend, the Court would be confronted with the choice of conflicting practices to follow and apply. A relevant practice has not been established. Ground rejected.

Parity: At sentence, the indicative starting point for co-offender if sentenced separately for the conspiracy offence was imprisonment for 28 years. After resentence, the starting point was 24 years. The result is that, notwithstanding that the sentencing judge found offender was less culpable, the head sentence to which offender is subject is 2 months longer. Both offenders were personally invested in the importation, performed crucial physical acts, and were entrusted to make decisions. Ibrahim undertook less ‘hands on’ tasks than offender but played a slightly more serious role. Ibrahim occupied a slightly higher position in the organisation. Given that no issue has been taken with the relativity assessed by the sentencing judge between the culpability of Ibrahim and that of offender, it seems reasonable that offender is left with a justifiable sense of grievance. Ground upheld.

Manifest Excess: For an offence of conspiracy to import a commercial quantity of MDMA, a maximum sentence of life imprisonment is prescribed. A commercial quantity of MDMA is constituted by half a kilogram. The quantity of pure MDMA the subject of offence is 594.43 kilograms — almost 1,200 times the quantity necessary to expose them to a sentence of life imprisonment. One relevant consideration in this case is that offender has previously served a term of imprisonment for drug offences. The broadly comparable cases provided by the Crown to the sentencing judge do not indicate that a starting point of 26 years was manifestly excessive. Ground rejected.

Leave to appeal allowed. Appeal on ground 2 allowed. Offender resentenced to 15 years and 7 months imprisonment with a non-parole period of 10 years and 4 months.

The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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