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Ibrahim v The Queen [2022] NSWCCA 161

The offender was sentenced following pleas of guilty to 2 counts 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 and 3 counts of dealing with an instrument of crime contrary to s 400.3(1) of the Commonwealth Criminal Code. Additional customs, proceeds of crime, and drug trafficking offences were taken into account under s 16BA. Offending related to 1,331.98 kilograms of MDMA, 91.87 kilograms of cocaine and 12.04 kilograms of methamphetamine. Original sentence imposed 30 years imprisonment with a non-parole period of 18 years. Offender appealed on grounds that the sentencing judge erred in considering the involvement of an undercover operative, erred in finding that the offender’s role was more significant than their co-offender, applied an inadequate discount for offender’s plea, and issued a manifestly excessive sentence.

Nature and Circumstances: Grounds 1 and 2 effectively challenge the assessment of offender’s culpability. It is necessary to point to a House v The King error to disturb a sentencing judge’s assessment of objective seriousness. It is clear that the sentencing judge gave full consideration to offender’s culpability in light of the way that they came to be involved in the drug transactions. The conclusion that the offender’s culpability was diminished was all that needed to be said. The diminution of culpability simply falls into the instinctive synthesis. The assertion that the effect given to the culpability finding was de minimis is not supported.

Parity: Where the same judge sentences both offenders and gives detailed reasons for the sentences imposed on each offender, this Court will be cautious before determining that one of the offenders has a justifiable sense of grievance because of sentence outcomes. The sentencing judge carefully considered the roles of each of the offenders, and where each stood in the hierarchy. All the matters identified by the offender to have been found or emphasised differently were carefully considered. The difference between Dib’s sentence and the offender’s was small and is explicable by the different findings as to role, position in the hierarchy, and subjective matters and findings. The disparity is not gross, marked or glaring.

Manifest Excess: The undiscounted indicative sentences for the narcotics offences (of 28 and 30 years) fall outside the range of reasonable sentences in the circumstances of this case. The sentencing judge found that there was no evidence that the offender was contemplating or engaging in drug-related activity before the opportunity was presented to them. That meant that the offending was not of the highest order, and the offender’s culpability was diminished. Even without a reduction of the indicative sentences for the narcotics offences, the notional accumulation of the tobacco offences on the narcotics offences seems to be plainly unreasonable.

Leave to appeal granted. Appeal allowed. Offender resentenced to 25 years imprisonment with a non-parole period of 15 years.
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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