Dib v Rex [2023] NSWCCA 243 | Case summary | Zoe

NSWNSWCCA

Dib v Rex

[2023] NSWCCA 243

Court of Criminal Appeal (NSW)|2023-03-17|Before: Garling J, Ierace J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2023-03-17

Before

Garling J, Ierace J

Catchwords

[1993] HCA 15 Baxter v R [2007] NSWCCA 237
(2007) 173 A Crim R 284 Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638
[2000] HCA 54 DS v R [2014] NSWCCA 267 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
[2007] HCA 22 Gett v Tabet (2009) 109 NSWLR 1

Source

Original judgment source is linked above.

Catchwords

[1993] HCA 15 Baxter v R [2007] NSWCCA 237(2007) 173 A Crim R 284 Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638[2000] HCA 54 DS v R [2014] NSWCCA 267 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89[2007] HCA 22 Gett v Tabet (2009) 109 NSWLR 1[2009] NSWCA 76 Green v The Queen (2011) 244 CLR 462[2011] HCA 49 Hampton v R [2014] NSWCCA 131(2014) 243 A Crim R 193 Hili v The Queen (2010) 242 CLR 520[2010] HCA 45 Ibrahim v R [2022] NSWCCA 161 Johnson v The Queen [2004] HCA 1578 ALJR 616 Jomaa v R [2022] NSWCCA 112 Jones v The Queen (1993) 67 ALJR 376 Karpinski v R (2011) 32 VR 85[2011] VSCA 94207 A Crim R 429 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520[1997] HCA 25 Leeth v The Commonwealth (1992) 174 CLR 455[1992] HCA 29 Lehn v R (2016) 93 NSWLR 205[2016] NSWCCA 255 Lipohar v The Queen (1999) 200 CLR 485

Judgment (8 paragraphs)

[1]

The applicant's personal circumstances

The applicant did not give oral evidence in the sentencing proceedings. He affirmed an affidavit on 31 January 2020. From that, and other evidence to which I will refer, the following emerges. The applicant was born in December 1982, of Lebanese immigrants. His parents are devout Muslims. The applicant is one of 5 male children, one brother having died at the age of 3 when struck by a car, an event that was devastating for the family. An older brother had taken to criminality. The applicant was exposed to his brother's friends, many of whom are now serving prison sentences for murder.
The applicant has a criminal history dating back to 1999 (when he was 17 years of age). In 2002 he entered a plea of guilty to a charge of manslaughter, an offence committed when he was 15 years of age. He was sentenced to imprisonment for 10 years with a non-parole period of 5 years, which expired on 25 May 2006. In 2004 the applicant was convicted of supplying prohibited drugs and sentenced to imprisonment for 6 years with a non-parole period of 4 years.
The applicant explained the circumstances in which he committed the manslaughter. He said that it was a "tragic mistake" that he had always regretted. He said that he saw "a bunch of Asian kids" fighting his brother and others in a brawl, and his brother get knocked to the ground. He (the applicant) panicked, ran back to his house, obtained a knife and joined in the fight to assist his brother. He stabbed one of the youths who subsequently died.
The applicant said that in March 2000 he was charged with a shooting offence, in relation to which he spent almost six months in custody on remand before being found not guilty at trial.
In 2000 the applicant was charged with the murder of Anita Vrzina, who had died by shooting in November 2000. The prosecution of the charge was tortuous. Two trials, fixed for September 2003, were aborted for reasons it is not necessary to explore. Three dates in 2005 and 2008 later fixed for the commencement of the trial were vacated. In 2008 the Director of Public Prosecutions filed a nolle prosequi, but recommenced the proceedings in 2011. In November 2012 the applicant was convicted of the murder and sentenced to imprisonment for 35 years with a non-parole period of 25 years: R v Dib [2012] NSWSC 1431. In February 2016 an appeal against the conviction was upheld and a verdict of acquittal entered: Dib v R [2016] NSWCCA 15. The applicant was released. He had by that time served 1345 days (3 years, 8 months and 6 days) in custody referable to that charge, comprising 29 days on remand in 2000 when he was first charged with the offence, and 1316 days from his conviction in November 2012 through to his acquittal in February 2016.
The applicant said that on his release he found it difficult to adjust to life in the community and became a regular user of MDMA. He suffered depression and a persistent preoccupation with the injustice of his incarceration.
The applicant explained his involvement in the present offence by saying that he wanted to repay his family for significant sums that they had raised for his defence of the murder charge and the subsequent appeal. In an affidavit, his solicitor, Ms Parker, estimated that the fees paid on behalf of the applicant by members of his family amount to a little under $800,000.
The applicant also relied on a report of Dr Stephen Allnutt, a forensic psychiatrist. Dr Allnutt recorded the history he took from the applicant, which included his use of MDMA after his 2016 release from prison. Dr Allnutt recorded symptoms of depression, which he considered to be consistent with "a chronic adjustment disorder with a depressed and anxious mood". He said: "[the applicant] said that when he was released from gaol in February 2016, he expected some form of compensation, but this was not forthcoming. He felt he owed his family financially because of their assistance during his trial, and this formed an underlying motivator towards his offending. In addition, he continued to have unresolved feelings about his prior incarceration - related I would regard his behaviour [sic], to some degree, as a form of 'acting out' his frustration about his prior incarceration as this was something that was frequently on his mind. His offending behaviour could be regarded as being at least partially be understood [sic] as a maladaptive way of dealing with his distress at being wrongly incarcerated previously. There appears to have been a constellation of factors - wrongful incarceration, unresolved feelings in relation to that wrongful incarceration, motivation to obtain money to pay back his family, involvement with MDMA as a form of self-medication for his depressive and social anxiety disorder, involvement with antisocial and drug-abusing associates, introduction to offending and therefore opportunity to offend."
Dr Allnut considered the applicant's prospects for rehabilitation to be "relatively positive".

[2]

The findings of the sentencing judge

The sentencing judge accepted that the applicant's plea of guilty had been entered at the earliest available opportunity and allowed a reduction of 25% on the sentence she otherwise would have imposed. To that she added a further reduction of 5%. Her Honour considered that the applicant was "a willing and enthusiastic participant" in the conspiracy. Her Honour found: "101. The offender was part of a professional criminal syndicate with international links. The illegal activity involved planning and organisation, although I am unable to find that the degree of sophistication was more than that inherent in offences of this type, namely, agreements to import substantial quantities of border controlled drugs. 102. Having regard to the quantity and value of the drug, the nature of the conspiratorial agreement and the methodology used, I am satisfied that the offence is properly characterised as objectively very serious." No challenge is made to these findings and they are plainly correct.
With respect to the applicant's role in the conspiracy her Honour found that the enterprise comprised two groups, one based in the Netherlands and one in Australia, and that the applicant was engaged in bringing the two groups together for the purpose of facilitating the importation. While she declined to find that the applicant's role was limited to being a "conduit" or "intermediary", she also was not persuaded that the applicant was a "high level organiser or 'lynchpin' in the enterprise", and that ultimate decision making was left to others more senior in the hierarchy. More important participants were Zane and a man called Arif (in the Netherlands). Her Honour considered that Moustafa Ibrahim played a significant role in the Sydney-based group, second to that of Zane, and superior to that of the applicant.
The sentencing judge was not satisfied that the applicant's mental health issues were causally connected to his involvement in the conspiracy.
Her Honour took into account what she called "the significant period of uncredited custody" arising out of his incarceration for the murder of Anita Vrzina as part of the applicant's subjective case. She did not identify any specific reduction in the sentence attributable to that circumstance. She declined to take that period into account by directly backdating the sentence, or reducing the length of the sentence, as she had been urged to do. The course taken by her Honour in that respect was in accordance with established authority in this State, which will be discussed below.

[3]

Sentencing of a co-offender

On 20 May 2020 the sentencing judge sentenced Moustafa Ibrahim: R v Ibrahim, Moustafa [2020] NSWDC 254 ("Ibrahim"). Ibrahim stood to be sentenced for five offences, the first of which was the conspiracy that involved the applicant. He was also sentenced for a second conspiracy to import a commercial quantity of drugs, and three counts of money laundering, contrary to s 400.3(1) of the Criminal Code (Cth). Three further offences, one of aiding and abetting, counselling or procuring the trafficking of a commercial quantity of MDMA (ss 302.2(1) and 11.2(1) of the Criminal Code (Cth)), one of smuggling tobacco products (s 233BABAD(1) of the Customs Act 1901 (Cth)) and another of money laundering, were taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth). Pursuant to s 53A of the Sentencing Procedure Act her Honour imposed an aggregate sentence of imprisonment for 30 years with a non-parole period of 18 years. In accordance with s 53A(2)(b) her Honour indicated that, if sentencing separately for the first conspiracy offence (that is, that involving the applicant) she would (after a reduction of 25% referable to Ibrahim's plea of guilty) have imposed a sentence of imprisonment for 21 years. The starting point for the indicative sentence for that offence was therefore imprisonment for 28 years.
Her Honour considered that Ibrahim played a "slightly more serious role" than the applicant, and held a position "slightly higher" in the organisation than the applicant.
Ibrahim appealed against the aggregate sentence imposed. The appeal was allowed, the aggregate sentence quashed and a sentence of imprisonment for 25 years with a non-parole period of 15 years was substituted: Ibrahim v R [2022] NSWCCA 161. The Court rejected a parity ground based on the sentence imposed on the present applicant, but expressly held that the undiscounted starting point for the indicated sentence on the first conspiracy charge (28 years) fell outside the range of reasonable sentences in the circumstances of the offending (that is, if imposed as a sentence for the offence, it would have been manifestly excessive). The Court indicated that, if sentencing separately for that offence, it would (after 25% reduction) have imposed a sentence of imprisonment for 18 years. It can be calculated that the starting point for that sentence was 24 years.

[4]

The proposed grounds of appeal

The applicant seeks to rely on three grounds of appeal, as follows: "Ground 1: the learned sentencing judge erred in not backdating the applicant's sentence to take into account uncredited time in custody. Ground 2: the applicant suffers a justifiable sense of grievance in respect of the sentence imposed on the co-offender Mr Ibrahim following his successful sentence appeal in Ibrahim v R [2022] NSWCCA 161. Ground 3: the sentence is manifestly excessive."

[5]

Ground 1: failure to backdate to take account of time served in custody

Ground 1 concerns the period, in excess of 3½ years, which the applicant spent in custody following conviction for an offence of murder of which he was subsequently, on appeal, acquitted. The sentencing judge also acknowledged the earlier period that the applicant had spent in juvenile custody in respect of charges of which he was also subsequently acquitted. On her Honour's calculation the total period of custody, ultimately not referable to any conviction, was "in the order of 5½ years".
The sentencing judge took that time into account as part of the applicant's personal circumstances, but declined to go further and identify a discrete reduction in sentence, or to backdate the sentence by that or some other period of time as she had been asked to do. Her Honour gave detailed reasons for taking that course. She considered herself bound to do so by a previous line of authority in this Court. That line of authority commenced with the decision in R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep) ("Niass"), and was confirmed by a bench of five judges in Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 ("Hampton").
On behalf of the applicant it was submitted in this Court that her Honour was incorrect and ought to have made specific allowance for the time served in custody on matters unrelated to the present offence and which, as later events showed, ought not to have been served. It was acknowledged that the proposition was contrary to established authority in this State. It was nevertheless maintained that account should be taken of the period spent in custody unrelated to the present offence, either by backdating or by a reduction in the total sentence imposed (which I take to mean a quantified reduction).
In Niass the offender was convicted in a jury trial on a charge of supplying Indian Hemp. Prior to that he had spent a period of just over one year in custody on quite unrelated charges of which he was subsequently acquitted. The sentencing judge in that case was asked, but declined, to take into account that period in sentencing on the Indian Hemp charge. On appeal it was contended that it was erroneous for the sentencing judge not to give credit for the period of incarceration on the charges for which Mr Niass was acquitted. Lee CJ at CL, with whom Gleeson CJ and Allen J agreed, said: "The proposition which is put forward here is one which would require the court, in every case where a person was acquitted of a charge, to take into account when sentencing him on a wholly unrelated offence the period spent in custody; and in the absence of any authority that such a course should be taken, I would not be disposed to initiate it now. It seems to me that there is good reason to keep intact the division between [(i)] the functioning of the court dealing with a particular offender in respect of the offence on which he comes before the court and taking into account periods spent in custody in respect of that offence, and [(ii)] the function which the State has undertaken on occasions to recompense persons who, when the justice system has miscarried may seek solatium. I see no basis in law for the proposition put by counsel for the appellant to be put into operation in the present case, …"

[6]

Ground 3: manifest excess

It is convenient next to address Ground 3, by which the applicant asserts that the sentence imposed was manifestly excessive.
The applicant advanced little in the way of submission to support that assertion. He placed considerable reliance on the findings of this Court in Ibrahim. Those findings do not, in my opinion, bear upon whether the sentence imposed in this case is manifestly excessive. Each case is to be determined on the evidence in that case before the sentencing judge. The question is whether, in all of the circumstances of the applicant's case (including his personal circumstances), the sentence imposed was "unreasonable or plainly unjust": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].
As there is no issue concerning the reduction in the applicant's sentence of 30%, the question is to be determined, in the first instance, by reference to the starting point of 26 years. In determining whether the sentence imposed was "unreasonable or plainly unjust" it is appropriate to have regard to sentences imposed in comparable cases: Hili at [54], although with an eye to the limitations in the use that can be made of that information: see also Pham [29], [47], [49].
The applicant did not provide this Court with any comparable sentencing information, although the materials provided to the Court did include a table prepared by the Crown for the purposes of the sentencing judge.
The first thing to observe is that, 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 the applicant's offence is 594.43 kilograms - almost 1,200 times the quantity necessary to expose him to a sentence of life imprisonment.
The quantity of the drug is not the sole determining sentencing factor: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[78], but it remains an important consideration. It is of particular significance where the quantities are of the kind involved in the present case.
Other important considerations are the role played by the offender, and his or her personal circumstances, including criminal history. One relevant consideration in this case is that the applicant has previously served a term of imprisonment for drug offences. No attempt was made on behalf of the applicant to show that the sentencing judge erroneously dealt with any of the relevant considerations.

[7]

Ground 2: parity

Under Ground 2 the applicant's complaint is as to the sentence imposed upon him relative to that indicated by this Court as the appropriate sentence that would have been imposed on Ibrahim with respect to the conspiracy in which the applicant was involved following the success of Ibrahim's appeal. To restate, the sentence imposed on the applicant, after a reduction of 30%, was imprisonment for 18 years and 2 months with a non-parole period of 12 years. The starting point of the sentence, before reduction, was 26 years with a non-parole period of 17 years. The sentence her Honour indicated that she would have imposed on Ibrahim if sentencing separately for that conspiracy offence was, after reduction of 25%, imprisonment for 21 years. The starting point was therefore imprisonment for 28 years. The sentence indicated by this Court for that offence, again after 25% reduction, was imprisonment for 18 years. The starting point was 24 years. One outcome of Ibrahim's successful appeal is the disruption of the relativities carefully considered and constructed by the sentencing judge, which are not challenged by either party.
The result, after resentencing, is that, notwithstanding that the sentencing judge found that the applicant was less culpable than Ibrahim, the head sentence to which the applicant is subject is 2 months longer than the sentence indicated by this Court as appropriate for Ibrahim.
In sentencing Ibrahim the sentencing judge expressly considered questions of parity with all other offenders who had been sentenced. In relation to the applicant, her Honour observed (at [270]) that both offenders were "personally invested" in the importation and stood to make significant profits from it, both performed crucial physical acts in furtherance of the conspiracy, and both were entrusted to make decisions in respect of it. Her Honour considered that Ibrahim undertook less "hands-on" tasks than the applicant, but played a slightly more serious role because his involvement operated to make the various pieces fit together and assured that the drug enterprises ran smoothly by reducing the risk of the conspirators being defrauded.
Her Honour also considered that Ibrahim occupied a slightly higher position in the organisation as was evidenced by his having suggested to Zane an alternative source of drugs when tensions arose in the operation.

[8]

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2023

Parties

Applicant/Plaintiff:

Dib

Respondent/Defendant:

Rex

Legislation Cited (7)

South Australian Criminal Law Consolidation Act 1935(SA)

Crimes Act 1914(Cth)ss 16A, 16BA, 16E

Crimes (Sentencing Procedure) Act 1999(NSW)ss 47, 53A, Criminal

Criminal Appeal Act 1912(NSW)ss 6, 6AA

Customs Act 1901(Cth)s 233BABAD

Judiciary Act 1903(Cth)s 68

Sentencing Act 1991(Vic)s 18

Cases Cited (85)

Pham v The Queen [2014] VSCA 204; (2014) 244 A Crim R 252 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 R v Arts and Briggs [1998] 2 VR 26; (1997) 93 A Crim R 56 R v Clarke [2013] NSWCCA 260 R v Chi Luong Chung (Court of Criminal Appeal (NSW), 9 March 1994, unrep) R v Dib [2012] NSWSC 1431 R v Evans (Court of Criminal Appeal (NSW), 21 May 1992, unrep) R v Governor of Brockhill Prison; Ex parte Evans [1997] QB 443 R v Heaney (Court of Appeal (Vic), 27 March 1996, unrep) R v Ibrahim, Moustafa; [2020] NSWDC 254 R v John David (Court of Criminal Appeal (NSW), 20 April 1995, unrep) R v Kotzmann [1999] 2 VR 123; [1999] VSCA 27; 105 A Crim R 243 R v Mostafa Dib [2020] NSWDC 145 R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep) R v Renzella [1997] 2 VR 88 R v Stares (2002) 4 VR 314; [2002] VSCA 70 R v Taouk (1992) 65 A Crim R 387 R v Webster; R v Jones (Court of Criminal Appeal (NSW), 3 August 1992, unrep) S v Boulton [2005] FCA 821; 155 A Crim R 152 Smith (a pseudonym) v R [2022] NSWCCA 123 Simpson v R (2001) 53 NSWLR 704; [2001] NSWCCA 534 SY v R [2020] NSWCCA 320 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Thurlow v The Queen [2021] VSCA 71 Totaan v R [2022] NSWCCA 75 Warwick v The Queen [2010] VSCA 166; 201 A Crim R 580 Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Mostafa Dib (Applicant) The Crown Representation: Counsel: P Strickland SC/T Bicanic (Applicant) S Callan SC/P McEniery (Respondent)

Solicitors: Karnib Saddik Law Firm (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2017/282598 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2020] NSWDC 145 Date of Decision: 27 April 2020 Before: Yehia DCJ File Number(s): 2017/282598

Cited By (5)

In Warwick v The Queen [2010] VSCA 166; 201 A Crim R 580 ("Warwick") the offender had spent time in custody with respect to offences committed in company of which he was convicted, and another earlier period of time in respect of unrelated charges of which he was later acquitted. The sentence imposed on Mr Warwick in respect of the offences committed in company was significantly more lenient than those imposed on his co-offenders and subject to an "exceptionally low" non-parole period. The difference in sentencing was explained by the sentencing judge and attributed by the Court of Appeal to the time spent in custody in relation to the unrelated matters. Maxwell P and Weinberg JA said: "17. In the present case and others like it, a period of detention ('dead time', as we have called it) sought to be brought to account concerns other conduct, quite unrelated to the matters for which the person stands for sentence. It is a period which, viewed with the benefit of hindsight at the date of sentencing, should not have been served. In the present case, as we have explained, this was so because the charges to which the earlier detention related were subsequently dismissed. 18. It does seem to us, as we raised in the course of argument, that there may be a question for investigation as to the basis on which detention of that kind is thought to be relevant when the person comes to be sentenced for quite unrelated matters. In so saying, we recognise that there is obvious injustice where a person has served a term of imprisonment which he or she should not have served. In other jurisdictions, that injustice is addressed by formal procedures for compensation for such periods. No such system exists in this State. 19. The question which may require investigation is whether a form of judicial compensation, by way of sentence discounts in relation to other matters, is the appropriate way to deal with this species of injustice. As we have said, the law in Victoria as it stands is that it is properly dealt with in that way. As Weinberg JA pointed out, however, the logic of this approach would seem to be that 'unjust' imprisonment should always stand to a person's credit, however long after the event it is sought to be called in aid. As we say, that is a question for another day."

However, the High Court has since moved in a different direction. In Hili, the principal issue concerned the approach to be taken in sentencing federal offenders with respect to the proportion of the sentence to be served in custody relative to that which may be served in the community pursuant to a recognisance release order. Unlike the NSW provisions in the Sentencing Procedure Act (see s 44), the effect of which is that, unless special circumstances are shown to exist, the non-parole period of the sentence should be not less than 75% of the total sentence, no proportion is prescribed in Pt 1B of the Crimes Act (Cth). This Court considered that a "norm" of between 60 and 66% could be discerned from past sentencing decisions. In that context the question of consistency in sentencing federal offenders arose. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said: "25. As noted in Johnson v The Queen [at [15]], s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of 'totality' discussed in Mill v The Queen [(1988) 166 CLR 59; [1988] HCA 70]. Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression 'of a severity appropriate in all the circumstances of the offence' used in s 16A(1), as well as some of the expressions used in s 16A(2), such as 'the need to ensure that the person is adequately punished for the offence' (s 16A(2)(k)). But s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed. … 49. The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt 1B of the Crimes Act. When it is said that the search is for 'reasonable consistency', what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. … 53. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. … … 57. In dealing with appeals against sentences passed on federal offenders, whether the appeal is brought by the offender or by the prosecution, the need for consistency of decision throughout Australia is self-evident. It is plain, of course, that intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court, unless convinced that that interpretation is plainly wrong. So, too, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong." (emphasis in original)

The High Court accepted that contention. The plurality (French CJ, Keane and Nettle JJ) said: "18. … As Hili v The Queen made clear, where a state court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong. 19. It follows that to approach the sentencing task on the basis that an offender is entitled to assume that he or she will be sentenced in accordance with current sentencing practices in the State or Territory where the offender is sentenced is an error that is likely to result in just the kind of inconsistency that the Australia-wide approach mandated by Hili is calculated to avoid. 20. Of course, that is not to say that there are not differences between various State and Territory laws concerning trial and conviction, including sentencing laws, which may be picked up and applied to federal offences by s 68 of the Judiciary Act 1903 (Cth). The Australia-wide approach mandated in Hili recognises that, to some extent at least, the effect of s 68 of the Judiciary Act is 'to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State' [citing Williams (No 2)]. … 23. Part 1B of the Crimes Act does not specifically provide for sentencing judges to take current sentencing practices into account. Apart from the application of such relevant State or Territory legislation as may be picked up and applied by s 68 of the Judiciary Act, the obligation of a judge to take current sentencing practices into account when sentencing an offender for a federal offence arises as a matter of common law. Section 5(2)(b) of the Sentencing Act 1991 (Vic) provides for a sentencing judge to take current sentencing practices into account, and to some extent it is capable of operating consistently with Pt 1B of the Crimes Act. But, whereas in its application to State offences s 5(2)(b) necessarily directs attention to current sentencing practices in Victoria (albeit not necessarily to the exclusion of current sentencing practices elsewhere in the Commonwealth), in the case of federal offences it is implicit in Pt 1B of the Crimes Act that a sentencing judge must have regard to current sentencing practices throughout the Commonwealth. 24. As Kirby J observed in Putland v The Queen [(2004) 218 CLR 174; [2004] HCA 8 at [81]-[82]], a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth. Hence, in the absence of a clear statutory indication of a different purpose or other justification, the approach to the sentencing of offenders convicted of such a crime needs to be largely the same throughout the Commonwealth. Further, as Gleeson CJ stated in Wong [Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64], the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. And, as was observed by the plurality in Hili [at [53]], the search for consistency requires that sentencing judges have regard to what has been done in comparable cases throughout the Commonwealth. 25. Counsel for the respondent [the offender] submitted that, allowing that the Court of Appeal was bound to have regard to sentencing practices throughout the Commonwealth, it was not, however, incumbent on the Court of Appeal to follow sentencing practices in other States. Having had regard to current sentencing practices in other States, it was open to the Court of Appeal to prefer Victorian current sentencing practices and, in view of current sentencing practices in Victoria, to conclude that the sentence imposed was excessive. 26. That submission should be rejected. As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence. 27. It does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of sentencing discretion … But it does mean that to prefer one State's sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair."

No error falling into any of the House categories has been identified. My conclusion in respect to Ground 1 disposes of the suggestion that the sentencing judge acted on a wrong principle or failed to take into account a material consideration. My conclusion with respect to Ground 3 disposes of any suggestion that the result (the sentence) was unreasonable or plainly unjust. There was no suggestion that the sentencing judge took into account any irrelevant consideration, nor of any mistake of fact.
It may be that the proposition in Lehn is too broadly stated when the ground on which it is sought to disturb a sentence is disparity. (The focus in Lehn was what was required of the appellate court if error was established, and if there were circumstances in which the court was not required to re-exercise the sentencing discretion.) In Jones v The Queen (1993) 67 ALJR 376 at 376, a three-judge bench of the High Court (Brennan, Deane and McHugh JJ) affirmed that the parity principle is relevant to the first sentence passed on one of a number of co-offenders. The Court quoted and apparently disapproved the following remarks of Sully J, expressed in the Court of Criminal Appeal below: "It cannot be the case, in my view, that a sentence otherwise unappealable becomes somehow transformed into a sentence contingently appealable merely by reason of the fact that it is imposed at a time when there are outstanding sentence proceedings against some co-offender or co-offenders. A sentence when imposed is then either appealable or it is not. If such a sentence is not then appealable, thereafter it must be left, in my view, to stand and to take effect according to its tenor." Implicit in the High Court's conclusion is that a sentence which, but for the subsequent sentence imposed on a co-offender, would be free from error, may nonetheless be legitimately disturbed on appeal for disparity. Indeed, it is well established that a ground of appeal that establishes unwarranted disparity in a sentence compared to that of a co-offender may be an indicator of error: Green at [32]. In Postiglione at 301, Dawson and Gaudron JJ said: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." (internal citations omitted)
Given that no issue has been taken with the relativity assessed by the sentencing judge between the culpability of Ibrahim for this offence and that of the applicant, and on the (necessary) assumption that this Court was correct in finding that the sentence indicated for Ibrahim for this offence was manifestly excessive, it seems reasonable to conclude that the applicant is left with a justifiable sense of grievance. Simple logic would appear to dictate that the remedy is the adjustment of the applicant's sentence to restore the relativity intended by the sentencing judge. The Crown expressly acknowledged that, in determining a parity ground of appeal, it is not inappropriate to compare an actual sentence with an indicated sentence: R v Clarke [2013] NSWCCA 260 at [68]; Smith (a pseudonym) v R [2022] NSWCCA 123 at [47]-[48] and the cases there cited.
The Crown, however, made three responses to the simple proposition that this Court should intervene to restore the relativity. The first was that the sentencing judge made an express finding that there was no evidence that Ibrahim was contemplating engaging in drug related activity before the opportunity was presented to him by Zane, a matter which her Honour appeared to take into account in the assessment of the objective seriousness of Ibrahim's offence on the principles stated by Cavanagh J in Jomaa at [105]-[108], following Taouk, and that her Honour made no corresponding finding with respect to the applicant. The short answer to that submission is that the relevant circumstances existed at the time of sentencing of both offenders and constituted part of the factual matrix on which her Honour determined the relative culpabilities of each of offender. It does not and cannot bear upon the present ground of appeal.
The second response made by the Crown was that the difference in starting points (and therefore the sentence and indicated sentence) has not been, to a significant extent, disturbed by the resentencing of Ibrahim. It is sufficient to say that I reject that proposition. The starting point of Ibrahim's sentence, after resentencing in this Court, has significantly disturbed the relativities. The discrepancy so created is plainly not in accordance with the sentencing judge's assessment of the relative culpability of the two offenders. It is also not without significance in this context that Ibrahim was sentenced for a multiplicity of offences, including another conspiracy to import drugs.
The final response advanced by the Crown to this ground of appeal was, citing DS v R [2014] NSWCCA 267 at [39], that the resultant disparity is not "gross", "marked", "glaring" or "manifest". Again, I disagree. The disparity can clearly be seen in the starting points of the indicative sentence and the sentence outlined above.
I am satisfied that, by reason of the reduction in the sentence imposed on Ibrahim, and the disparity so created, the applicant experiences a justifiable sense of grievance. I would therefore uphold Ground 2 of the proposed appeal.
The next question is what consequences flow from that conclusion.
Identification of error in the sentencing process ordinarily requires this Court to re-exercise the sentencing discretion, taking into account, if relevant, any additional evidence tendered: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 ("Kentwell").
In Kentwell, having approved the observations of Spigelman CJ in Baxter, the plurality (French CJ, Hayne, Bell and Keene JJ) said: "42 … When a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Sentencing Procedure Act] and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. …" (internal citations omitted)
In Lehn this Court considered the ambit of the requirement that the court re-exercise the sentencing discretion. In that case the error lay in the allowance made in recognition of Lehn's plea of guilty, which this Court held was both inadequate and arrived at in the absence of procedural fairness. As that was an error affecting the exercise of the sentencing discretion, the decision in Kentwell required the court to form its own view of the appropriate sentence.
That is not so in the present case. There was, here, no error that affected the exercise of the sentencing discretion such that it could be said, in the terms of Kentwell, that the sentencing discretion had miscarried. In my opinion, in accordance with what Dawson and Gaudron JJ said in Postiglione at 301, the sentence should be reduced to restore the relativity between that imposed on the applicant, and the post-appeal sentence indicated as appropriate for the offence in Ibrahim.
The margins in the sentences nominated by the sentencing judge and that indicated in Ibrahim are, as I have said above, narrow but not insignificant. The starting point of the sentence imposed on the applicant was almost 93% of the post-appeal indicated sentence nominated in respect of Ibrahim for the conspiracy offence. In my opinion this Court should act to restore that relativity. That would yield a starting point of imprisonment for 22 years and 3 months (in round figures), which, after reduction of 30%, results in a sentence of imprisonment for 15 years and 7 months. I would maintain the proportions between the head sentence and the non-parole period (approximately 66%). I would impose a non-parole period of 10 years and 4 months.
The orders I propose are:
The time within which to appeal is extended to 6 September 2022;
Leave to appeal is granted;
The sentence imposed in the District Court on 27 April 2020 is set aside;
The applicant is sentenced to imprisonment comprised of a non-parole period of 10 years and 4 months, commencing on 8 August 2017 and expiring on 7 December 2027, with a balance of term of 5 years and 3 months, which will expire on 7 March 2033.
GARLING J: I agree with the orders and sentence proposed by Simpson AJA and with her Honour's reasons.
IERACE J: I also agree with the orders and sentence proposed by Simpson AJA and with her Honour's reasons.

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Mostafa Dib, pleaded guilty to a charge of conspiracy to import a commercial quantity of a border-controlled drug contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth). The charge related to a period of six months in 2017, during which the applicant conspired, with a number of others, 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 applicant was sentenced in the District Court to imprisonment for 18 years and 2 months, with a non-parole period of 12 years. Prior to the commission of the offence, the applicant had served in excess of 3 years and 8 months in custody following (an entirely unrelated) conviction for an offence of murder, of which he was subsequently, on appeal, acquitted. The applicant contended before the District Court that his sentence for the conspiracy offence should be backdated or reduced by a quantified period to recognise the time that he had wrongly spent in custody in relation to that unrelated charge. The sentencing judge refused to do so, considering herself bound by previous authority. Nevertheless, her Honour took that time into account as part of the applicant's subjective circumstances. The Court of Criminal Appeal subsequently allowed an appeal brought by one of the applicant's co-offenders, Mr Moustafa Ibrahim, against his sentence: Ibrahim v R [2022] NSWCCA 161. The Court of Criminal Appeal considered that the indicative sentence for the conspiracy offence (in which Mr Dib was a co-offender) was outside the range of reasonable sentences in the circumstances of Mr Ibrahim's offending. Mr Ibrahim had been sentenced by the same sentencing judge as the applicant. The sentencing judge had considered that Mr Ibrahim was more culpable than the applicant and had imposed a longer indicative sentence on Mr Ibrahim in respect of the conspiracy offence than the sentence imposed on the applicant. After Mr Ibrahim was resentenced by this Court, his indicative sentence was 2 months shorter than the sentence imposed on the applicant. The applicant sought leave to appeal against his sentence on the following grounds: (1) the sentencing judge erred in not backdating the applicant's sentence to take into account the uncredited time that he had spent in custody; (2) the applicant suffers a justifiable sense of grievance in respect of the sentence imposed on Mr Ibrahim following his successful sentence appeal; and (3) the sentence imposed on the applicant is manifestly excessive. The Court (Simpson AJA, Garling and Ierace JJ agreeing) granting leave to appeal, allowing the appeal and resentencing the applicant to imprisonment for 15 years and 7 months, with a non-parole period of 10 years and 4 months. As to ground 1 (uncredited time in custody) It was well and consistently established that in New South Wales a sentencing court will not take account of uncredited time in custody in the manner for which the applicant contended: [34]-[52]. R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep); Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193; SY v R [2020] NSWCCA 320, considered. The applicant had not identified a contrary "common law principle" or sentencing practice accepted in other States or Territories which would lead this Court to reconsider or depart from that authority: [53]-[104]. Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76, applied. Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19; Leeth v The Commonwealth (1992) 174 CLR 455 at 467; [1992] HCA 29; The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39, considered. As to ground 2 (parity) Given no issue was taken with the "relativity" assessed by the sentencing judge between the culpability of the applicant and the culpability of Mr Ibrahim, it is reasonable to conclude that the applicant is left with a justifiable sense of grievance following the disturbance of Mr Ibrahim's sentence: [138]. A ground of appeal that establishes unwarranted disparity between an applicant's sentence and that of a co-offender may be an indicator of error. A Court of Criminal Appeal need not identify a further error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 in order to intervene to correct the error: [133]-[137]. Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, distinguished. Jones v The Queen (1993) 67 ALJR 376; Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26, followed. It was appropriate for this Court to restore the relativity assessed by the sentencing judge, without otherwise re-exercising the sentencing discretion: [143]-[147]. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, distinguished. As to ground 3 (manifest excess) The applicant's sentence was not manifestly excessive: [105]-[124].