Ahmad v R

Court of Criminal Appeal (NSW)|2023-05-01|Before: Leeming JA, Rothman J, Garling J, Mr P

Introduction

Where a sentencing judge has acted upon a wrong principle, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. Rather, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh: Kentwell at [42]-[43]. I now move to consider a resentence of the appellant.
I note that except for the issue raised by ground one, the appellant on appeal did not challenge any of the specific findings of the sentencing Judge in relation to the facts the subject of the offending (including his role in the joint criminal enterprise) or the subjective case of the appellant except for the matters relating to family hardship. It is appropriate to proceed to resentence upon the basis of those findings.
Accordingly, in re‑sentencing the appellant, I have had careful consideration to those findings, and adopt them all. It is appropriate to provide a summary of her Honour's relevant and important findings, and to make additional observations and findings as appropriate.

Objective Seriousness

In considering the objective seriousness of the offence, the sentencing Judge made findings about the appellant's role and involvement in the scheme. Her Honour found that appellant was initially promised between $250,000 and $300,000 for his participation in the scheme. He, together with Mr Fakhreddine, operated initially to provide distance or separation between the senior members of the scheme on each side. As the scheme progressed, the appellant's role changed from one of being simply a conduit of information and providing security for Mr Dib, to someone whom Mr Dib could refer to, or rely upon, for various defined tasks. For example, Mr Dib relied upon the appellant to ensure that various calculations in relation to commissions and breakdowns of various figures were accurate.
There was also an understanding or agreement that the appellant was going to contribute a portion of the "door" fee and a portion of the shortfall of the purchase price for the MDMA (after it increased from €4000 to €4500 per kilogram). The appellant did not have the cash to make the contributions upfront.
Her Honour found that the appellant's role in the scheme was not a decision‑making role of any significance and that he did not have any control over the "door", nor the drugs sourced in the Netherlands, the pricing, the packaging or the transportation of the drug. Nevertheless, her Honour was satisfied that the appellant participated in the enterprise for a number of months and had played an important role in it. He was aware at all times of the nature and scope of the MDMA importation scheme. His role was not limited to merely being a mindless conduit of information between the two groups or simply to provide "muscle" for Mr Dib. However, he was not Dib's "partner", and he was not a lynchpin in the scheme. The importation could still have succeeded without the appellant being involved. But he chose to become involved.
The sentencing Judge was satisfied that prior to the MDMA importation scheme, the appellant had not been involved in any drug‑related activity and had not attempted to import border‑controlled drugs. Zane presented the opportunity of "the door" to the senior participants who in turn engaged the appellant.
After considering the offender's role in the scheme, the fact that the maximum penalty for the offence is life imprisonment, the quantity of the drugs involved, and the fact that the drugs were not disseminated into the community, the sentencing Judge concluded, correctly in my view, that the offence was objectively very serious.
In relation to the role of the undercover operative, her Honour found that although he was pivotal to the scheme, the appellant was, nevertheless, at all times a willing participant in the MDMA importation scheme. There was no occasion on which he expressed any reluctance, disinterest or hesitation in his involvement in the enterprise.

Subjective Case of the Appellant

The sentencing Judge also made findings about the subjective case of the appellant. He grew up in a family with a strong sense of family unity, but one in which physical aggression was prevalent. The appellant married at the age of 21 and has three sons and one daughter. He has been the primary caretaker for the children for most of their lives due to his wife's medical conditions.
The appellant's brother was murdered in April 2016, and this event had a devastating and traumatic impact on him. After this, in addition to grieving his brother, the offender had to deal with media exposure, the need to repay his brother's debts, and ostracization by his friends and work colleagues. He was also subject to a substantial number of searches of his premises by police whom he felt were deliberately harassing him.
The sentencing Judge found that the appellant's high level of stress, anxiety and depression following the murder of his brother, and the events thereafter, did contribute to his decision-making when he agreed to take part in the offence, and that his psychological state operated to reduce his moral culpability. However, her Honour found that the extent to which his moral culpability was reduced was limited having regard to the extent of his criminality and the period of time that he was involved in this offence. He was fully aware of the scope of the scheme, the substantial quantity of drugs that were being imported into Australia and engaged in the conduct for financial reward.
The sentencing Judge found that the offender had reasonable prospects of rehabilitation. He had shown remorse. The sentencing Judge also took into account a number of other matters which do not need elaboration here. They are relevant to any sentence which may be imposed on the appellant, and full consideration has been given to them.
The sentencing Judge noted that the appellant was subject to onerous conditions in custody prior to sentencing, and that those onerous conditions would continue after sentencing. He was, at the time of his sentencing, classified as an Extremely High Security Inmate, with nothing to suggest that that would change in the future. Since that time, his classification has been revised.
In re‑sentencing the appellant, I take into account, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth), the adverse effect of the appellant's incarceration on his family and dependents. I have previously noted that the appellant has been the primary caretaker for the children for most of their lives due to his wife's medical conditions. He was also the primary caretaker to his elderly parents at the time he was arrested. The appellant's incarceration obviously interrupts those caretaking arrangements. Alternative arrangements have had to have been made which were not as appropriate.
In addition, there is evidence which suggests that the behaviour of at least two of the appellant's sons has declined since his incarceration. The appellant's eldest brother participated in a harm prevention program following his incarceration.
I am satisfied that the appellant's incarceration has had and will have a negative impact causing hardship on his family and dependents. I take that matter into account on resentencing.

Parity

In re-sentencing the appellant, it is necessary to have careful regard to the principle of parity.
When the sentencing Judge sentenced the appellant , she did so in the context of also sentencing other participants for their role in the MDMA importation scheme. The sentencing Judge approached the matter, carefully considering the objective criminality of each of the offenders, together with other relevant matters on sentence, and imposed sentences which reflected the seriousness of the offending and the role played by the individuals in the MDMA importation scheme and concluded that the appellant's objective criminality and his role in the importation was less serious than either of Mr Ibrahim or Mr Dib. She concluded that the appellant's criminality and role in the MDMA importation scheme was more serious than another co‑accused, Mr Fakhreddine, and was of the same order as Mr Watsford.
By his written submissions supplied on 9 October 2023 in accordance with leave, the appellant draws attention to the fact that the sentences imposed with respect to the MDMA importation scheme upon Mr Ibrahim and Mr Dib have been reduced as a consequence of their respectively successful appeals to the Court of Criminal Appeal: see Ibrahim v R [2022] NSWCCA 161 and; Dib (supra). The appellant submits that upon re‑sentencing, the Court should have regard to the principle of parity by reference to those sentences.
Mr Ibrahim was sentenced by way of an aggregate sentence for eight separate charges, including one which related to the MDMA importation scheme with which the appellant was also charged. Mr Ibrahim was charged with an offence of conspiracy to import the commercial quantity of the MDMA. The maximum penalty for that offence was life imprisonment. The appellant was charged with an attempt to import a commercial quantity of MDMA. That offence also carries a penalty of life imprisonment. For the purposes of this appeal, it is appropriate to regard these offences as comparable.
Although the Court of Criminal Appeal was dealing with the aggregate sentence which was imposed, it was necessary for it to consider the indicative sentences for Mr Ibrahim. The sentence indicated by the sentencing Judge for the importation of the MDMA was 21 years imprisonment after allowing a 25% discount for the plea of guilty. That indicative sentence was one of two indicative sentences which exceeded 20 years, and which were material contributors to the aggregate sentence ultimately imposed.
Davies J (with whom Harrison and Hallen JJ agreed) noted that that sentence was indicated after a reduction of 25% for a plea of guilty. He said at [110]: "110 In my opinion, the undiscounted indicative sentence for the narcotics offences (of 28 and 30 years) fall outside the range of reasonable sentences in the circumstances of the offending in this case."
At [115], his Honour concluded: "115 Where the two longest indicative sentences fall outside the range for this offending, and where the notional accumulation is unreasonable, the aggregate sentence is plainly unjust."
The Court set aside the aggregate sentence and proceeded to re-sentence Mr Ibrahim. Insofar as is relevant, the sentence indicated by Davies J for the MDMA importation scheme was 18 years imprisonment. That sentence was indicated after taking into account a 25% discount for a plea of guilty. Accordingly, the undiscounted starting point for that indicative sentence was 24 years.
In light of, and consequent upon, that judgment, Mr Dib appealed to the Court of Criminal Appeal. Mr Ibrahim was found by the sentencing Judge as more culpable than Mr Dib. She had imposed a longer indicative sentence on Mr Ibrahim in respect of the MDMA importation scheme.
Although he raised other grounds, ultimately, Mr Dib succeeded on his appeal to the Court of Criminal Appeal on the basis that he was left with a justifiable sense of grievance following the Court of Criminal Appeal's decision in Ibrahim.
The sentencing Judge imposed a term of imprisonment of 18 years and 2 months with a non-parole period of 12 years on Mr Dib. That sentence was imposed after a reduction of 30%. The starting point of the sentence before that reduction was 26 years with a non-parole period of 17 years.
Simpson AJA (with whom Ierace J and I agreed) concluded that by reason of the reduction in the sentence imposed on Mr Ibrahim in the Court of Criminal Appeal, and the disparity so created, the appellant, Mr Dib, had a justifiable sense of grievance and the appeal ought be upheld. Her Honour concluded that the relativity between Mr Ibrahim and Mr Dib established by the sentencing Judge should be restored. Accordingly, the Court of Criminal Appeal re-sentenced Mr Dib to a term of imprisonment of 15 years and 7 months, with a non-parole period of 10 years and 4 months. That was after a reduction of 30%. The undiscounted starting point for the sentence was 22 years and 3 months.
In this Court, the appellant accepted and did not seek to challenge any of the findings of the sentencing Judge with respect to the relativities of those two participants in the importation. In particular, the appellant accepted that he was less culpable than either Mr Ibrahim or Mr Dib.
The appellant submitted that the Court should have regard on the question of parity, also, to the sentence imposed on Hassan Fakhreddine - who was sentenced at the same time as he was for the same offence relating to the MDMA importation scheme. The sentencing Judge, after taking into account a discount of 20% for the plea of guilty, had sentenced Mr Fakhreddine to a term of imprisonment of 13 years and 7 months with a non‑parole period of 8 years. The starting point, undiscounted, for that sentence was 17 years. The appellant submitted that upon a careful analysis, there was no basis upon which the sentence imposed on him should exceed that imposed on Mr Fakhreddine.
I note that as yet there has been no appeal by Mr Fakhreddine.
It is convenient to now set out a table by reference to the undiscounted starting points of the sentences which were ultimately imposed and then after successful appeal to the Court of Criminal Appeal. Name Sentencing Judge Court of Criminal Appeal Ibrahim 28 years 24 years Dib 26 years 22 years 3 months Ahmad 19 years Fakhreddine 17 years

I have earlier discussed the range of other matters which need to be taken into account with respect to the re-sentencing of Mr Ahmad. In particular, I have noted and will take into account the adverse effect on his family members of his incarceration. He relied upon additional material available on re-sentencing. It is unnecessary to set out all of that material in this judgment. I take it into account in assessing the appropriate sentence to be imposed. I note that the appellant has been well-behaved whilst in custody and that his pro-social attitudes towards his duties and his positive engagement with staff and other inmates have been observed over time. This has been reflected in the reduction in his security classification. Whilst in custody in recent times the appellant has engaged in and completed a number of education programs. There are indications that his rehabilitation is progressing successfully.
To the extent to which they have occurred, these indicators would suggest that the need for specific deterrence in imposing this sentence is somewhat less than it otherwise might be.
Nevertheless, in imposing a sentence on the appellant, it is necessary to keep in mind the seriousness of the conduct in which he engaged, including but not limited to the size of the importation, its complexity, the period over which it occurred, and the planning which was necessary to give effect to it.
As Simpson AJA noted in Dib, it is important in light of the reductions in the sentences in the Court of Criminal Appeal of Mr Ibrahim and Mr Dib, the lack of an attack on the findings of objective seriousness, and the participation of both of them in the commission of the same importation offence, to maintain as closely as possible the relativity identified by the sentencing Judge. Precise mathematical calculations are not necessarily appropriate as the way to achieve this, but it is necessary to keep in mind the restoration of the relativity imposed by the sentencing Judge who sentenced all the offenders either at the same time or else within a short period of time thereafter. But in this appeal, those relativities will be more favourable to the appellant because of the need to take into account the matters set out at [61]-[62] above, and the adverse effect on the appellant's family by reason of his imprisonment.
Taking all these matters into account, in my view a sentence undiscounted for the effects of the plea would be 15 years and 10 months. The appropriate reduction to reflect the appellant's plea of guilty is 20%. In those circumstances, the appropriate sentence is 12 years and 8 months.
The appellant's non-parole period was a little under 60% of the head sentence. A similar proportion ought be maintained. This would mean that a non-parole period of 7 years and 6 months would be the appropriate period to impose.
As this sentence will be less than that originally imposed upon Mr Fakhreddine (on an undiscounted basis), the appellant's submissions about the appropriateness of reducing his sentence by reference to Mr Fakhreddine's sentence, as imposed by the trial Judge, need no further separate consideration on the appeal.

Summary

I propose the following orders: 1. Extend time within which to seek leave to appeal to 14 February 2023. 2. Grant leave to appeal. 3. The sentence imposed by the District Court on 22 June 2020 be set aside. 4. The appellant is sentenced to imprisonment comprising a non-parole period of 7 years and 6 months with a balance of term of 5 years and 2 months, commencing on 8 August 2017. The appellant will be first eligible for release to parole on 7 February 2025.

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HEADNOTE [This headnote is not to be read as part of the judgment] The appellant, Ahmad Ahmad, pleaded guilty to a charge of attempting to import a commercial quantity of a border-controlled drug contrary to ss 11.1(1) and 307.1(1) with ss 11.2A(1)(a) and 11.2A(1)(b)(ii) of the Criminal Code (Cth). The charge related to a period of ten months in 2016-2017, during which the appellant, with a number of others, attempted to import just under 800 kilograms of MDMA, with a pure weight of 594.43 kilograms. The offence carries a maximum penalty of imprisonment for life. The appellant was sentenced in the District Court to 15 years and 2 months' imprisonment with a non-parole period of 8 years and 9 months, commencing 8 August 2017. The appellant sought leave to raise three grounds of appeal. First, that the sentencing Judge erred in failing to take into account hardship to the appellant's family or alternatively in applying a wrong principle to the consideration of the matter. Secondly, that the sentence is manifestly excessive. Thirdly, that the appellant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Hassan Fakhreddine. The Court held, granting leave to appeal and resentencing the applicant to 12 years and 8 months' imprisonment with a non-parole period of 7 years and 6 months (per Garling J at [3], Leeming JA agreeing at [1] and Rothman J agreeing at [2]): 1. A court sentencing a federal offender does not need to find exceptional circumstances or "exceptional hardship" before having regard to the probable effect of a sentence on a family member or dependant: [10]. The sentencing Judge, acting upon an understanding of the law which was then conventional, erred in failing to take into account matters relevant to family hardship that her Honour did not regard as amounting to "exceptional circumstances": [11]. The appellant should thus be resentenced: [14]. Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied; Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied. 1. Where error has been established and the Court of Criminal Appeal is to embark on the exercise of the sentencing discretion afresh, there is no utility in the Court considering whether a sentence which is the product of legal error is manifestly excessive: [16]. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied. 1. This Court only comes to consider a question of parity in circumstances where it is accepted that the sentence is in all other respects an appropriate one and one falling within the proper discretionary range of sentences applicable in the circumstances: [19]. The appellant's abandonment of ground three is appropriate and the principle of parity is considered in his resentence. Clarke v R [2021] NSWCCA 248 (at [6], citing Jimmy v R [2010] NSWCCA 60 at [251]; (2010) 77 NSWLR 540), applied.

JUDGMENT

LEEMING JA: I agree with Garling J.
ROTHMAN J: I have had the advantage of reading the reasons for judgment of Garling J. I agree with his Honour's reasons and with the orders he proposes.
GARLING J: The applicant, Mr Ahmad Ahmad, seeks leave to appeal pursuant to s 5(1)(c) of the Criminal Appeal Act 1912, against a sentence imposed on him by Yehia SC DCJ (as her Honour then was) in the District Court of New South Wales. He also seeks an extension of time within which to seek leave to appeal.
The applicant pleaded guilty to a charge that between about 25 February 2017 and 8 August 2017, he attempted, with Hassan Fakhreddine, Hakan Arif, Nejmi Saki, Mostafa Dib, Moustafa Ibrahim and Ryan Watsford, to import a commercial quantity of a border-controlled drug, namely MDMA. That offence was contrary to ss 11.1(1) and 307.1(1) with ss 11.2A(1)(a) and 11.2A(1)(b)(ii) of the Criminal Code (Cth). It carries a maximum penalty of life imprisonment.
On 22 June 2020, Yehia SC DCJ ("the sentencing Judge") sentenced the applicant to 15 years and 2 months' imprisonment, commencing on 8 August 2017 and expiring on 7 October 2032: see R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020] NSWDC 370. A non-parole period of 8 years and 9 months was specified to commence on 8 August 2017.
The applicant seeks leave to raise three grounds of appeal. First, that the sentencing Judge erred in failing to take into account hardship to the applicant's family or alternatively in applying a wrong principle to the consideration of the matter. Secondly, that the sentence is manifestly excessive. Thirdly, that the applicant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Hassan Fakhreddine.
For reasons which will shortly appear having regard to the Crown's attitude to the application, it is appropriate for the Court to grant leave to appeal. I will refer to the applicant as the appellant.
It was necessary for this Court to delay its delivery of judgment to enable a proper consideration of the principle of parity and to allow further submissions to be made until a time after the delivery of the judgment in Dib v Rex [2023] NSWCCA 243.

Ground Three

Ground three is a parity ground which asserts that the appellant has a justifiable sense of grievance as a result of the sentence imposed upon his co-offender Hassan Fakhreddine. In oral argument, this ground was not pressed, as a result of the Crown's concession that ground one had been made out and that the Court would be proceeding to a fresh exercise of the sentencing discretion.
As I observed in Clarke v R [2021] NSWCCA 248 (at [6], citing Jimmy v R [2010] NSWCCA 60 at [251]; (2010) 77 NSWLR 540): "[the] Court only comes to consider a question of parity, or alternatively put, an inappropriate degree of disparity between sentences, in circumstances where it is accepted that the sentence is in all other respects an appropriate one and one falling within the proper discretionary range of sentences applicable in the circumstances."
Accordingly, the appellant's abandonment of ground three is appropriate. However, I note that in embarking upon any resentencing considerations, the principle of parity will need to be considered.

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