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R v Dib [2020] NSWDC 145

sentence — conspiring with others to import commercial quantity of border-controlled drug offence contrary to sections 11.5(1) and 307.1(1) of the Commonwealth Criminal Code — offence relates to 594.43kg of pure MDMA — guilty plea — plea of guilty at first opportunity, with reduction in sentence by 25% appropriate to reflect utilitarian value of the plea and facilitating course of justice — had matter proceeded to trial, would have been very lengthy and required undercover operative to give evidence — contrition — s 16A(2)(f)(ii) — satisfied offender remorseful for actions, as following plea of guilty instructed representatives to enter complex negotiations to settle agreed facts, cooperated with authorities and did not oppose extradition — nature and circumstances of the offence — s 16A(2)(a) —  quantity of MDMA very substantial —  offender stood to obtain significant financial benefit, motivated primarily by desire to pay off debts —  remains aggravating factor offender participated for financial reward — weight given to aggravating factor less than if had been motivated by desire to profit so as to reinvest in further illegal importations — no act of offender that resulted in drugs not being disseminated into community — offence objectively very serious — sentencing judge not satisfied offender had substantial decision-making role — while offender played crucial role in connecting two groups, sentencing judge not satisfied offender indispensable, particularly as conspiracy progressed — general deterrence — s 16A(2)(ja) — condign punishment must be meted out to those who are willing to engage in activities with intention of importing substantial quantities of illegal drugs into Australia — specific deterrence — s 16A(2)(j) — offender has criminal record that includes convictions for serious offences committed as a child — offender’s record disentitles them from leniency for first-time offender or minor record — prior conviction for supplying prohibited drug — mental condition —  s 16A(2)(m) — sentencing judge not satisfied of nexus between offender’s mental health issues and commission of offence such as to reduce moral culpability — mental health issues are relevant to subjective case — penalty will add to offender’s depressed mood and anxiety — offender will require extended period once released to assist in readjusting to life in community and in particular to provide with treatment and supervision in respect of mental health issues — offender has spent most part of adult years in custody — sentencing judge satisfied that if not already institutionalised, offender will be by time eligible for release to parole — totality — significant portion of offender’s time in custody relates to periods where denied parole or bail-refused in respect of murder charge ultimately acquitted of — offender served 5 ½ years uncredited custody — clear position in NSW where offender sentenced in relation to one matter, time spent in custody referable exclusively to successfully appealed unrelated offence is not to be taken into account as form of credit — in light of NSW authorities, difficult to take into account prior uncredited custody served by offender by either backdating commencement date or in applying principle of totality — appreciating difference of approach between jurisdictions, sentencing judge sentenced offender in accordance with principles enunciated by NSW courts — sentencing judge took into account significant period of uncredited custody as part of offender’ subjective case — issue of institutionalisation bears upon assessment of minimum time justice requires offender spend in custody — hardship to the offender —  offender’s periods of incarceration have been onerous and there is no reason to conclude that conditions will not continue in future particularly in respect of curtailed visits — COVID-19 — COVID-19 pandemic made conditions in custody more onerous for offender because measures implanted to control outbreaks have increased offender’s level of stress — primary reason that time in custody is more onerous is very limited contact that offender is allowed to have with family members — extra-curial punishment — offender was detained in Dubai for 5 weeks and tortured on number of occasions — rehabilitation — s 16A(2)(n) — sentencing judge guarded about offender’s prospects of rehabilitation — offender has prior criminal history including at least two serious offences for which they were sentenced to lengthy periods of imprisonment — offence was committed about one year after being released from custody — offender must serve lengthy period in custody having regard to objective gravity of offence — offender’s inevitable institutionalisation and isolation in custody are factors that are less conducive to rehabilitation — parity — due to distinguishing features from co-offender, sentencing judge satisfied starting point of sentence should be significantly higher than 16 years — starting point before 30% reduction is 26 years imprisonment — sentence — imposed 18 years’ and 2 months imprisonment with a 12 year non-parole period  
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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