Ibrahim Jidah v R

Court of Criminal Appeal (NSW)|2014-04-11|Before: Bathurst CJ, Fullerton J, Davies J

Judgment 1THE COURT: On a joint indictment presented on 23 February 2011, Lachlan Wilson, DS, Ibrahim Jidah (the appellant), Yousef Jidah and Ryan Kapral were charged with a range of what might be described broadly as drug offences. ES, another person also involved in the alleged offences, pleaded guilty. 2The charges against the appellant alleged contraventions of the Drug Misuse and Trafficking Act 1983 (NSW) (the DMT Act). The charges were as follows: "Count 6 Between about 12 August 2008 and 14 August 2008 at Sydney in the State of New South Wales and elsewhere, did supply a prohibited drug, namely pseudoephedrine, being not less than the commercial quantity and not less than the large commercial quantity applicable to pseudoephedrine. Contrary to s.25(2) Drugs Misuse and Trafficking Act Count 7 Between about 12 August 2008 and 14 August 2008 at Sydney in the State of New South Wales and elsewhere, did attempt to possess a precursor, namely pseudoephedrine, intended for use in the manufacture or production by Ibrahim JIDAH or another person of a prohibited drug. Contrary to s.24A(1) Drugs Misuse and Trafficking Act." 3Following a trial before Judge Frearson SC and a jury, the appellant was convicted on both counts. On Count 6, he was sentenced to imprisonment for a non-parole period of 10 years and 3 months with an additional term of 5 years and 6 months (that is a head sentence of 15 years and 9 months to expire on 26 January 2026). On Count 7, he was sentenced to 18 months imprisonment to be served wholly concurrently with the sentence imposed for Count 6. 4The appellant has appealed against his conviction and sought leave to appeal against the sentence imposed on him. 5Lachlan Wilson, Yousef Jidah, DS and ES were convicted of various offences relating to the same drugs as those the subject of the charges against the appellant and their appeals, with the exception of that of ES (on sentence), were heard at the same time as this appeal.

The relevant legislation 6Section 25(2) of the DMT Act provides as follows: "25(2) A person who supplies, or who knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence." 7"Supply" is defined in s 3 of the DMT Act in the following terms: "supply includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things." 8"Prohibited drug" is defined in s 3 of the DMT Act as any substance other than a prohibited plant specified in Sch 1. Pseudoephedrine is specified in Sch 1. A large commercial quantity of that drug is 5.0 kg. 9Section 33(3) of the DMT Act provides that the maximum penalty for s 25(2), where the offence involved not less than the large commercial quantity, is life imprisonment, a fine of 5,000 penalty units or both. The standard non-parole period is 15 years imprisonment. 10Section 24A of the DMT Act so far as relevant provides as follows: "24A(1) A person who has possession of: (a) a precursor, or (b) a drug manufacture apparatus, intended by the person for use in the manufacture or production, by that person or another person, of a prohibited drug is guilty of an offence. ... (3) In this section: drug manufacture apparatus means an apparatus specified or described in the regulations as a drug manufacture apparatus for the purposes of this section. precursor means a substance specified or described in the regulations as a precursor for the purposes of this section." 11Pseudoephedrine is specified in Sch 1 of the Drug Misuse and Trafficking Regulation 2011 (NSW) as a precursor for the purpose of section 24A of the DMT Act. 12Section 33AB of the DMT Act provides that the maximum penalty for an offence under s 24A is a fine of 2,000 penalty units or imprisonment for 10 years or both.

Factual background 13The facts relating to the charges against the appellant are set out in our judgment in the appeal of Lachlan Wilson (Lachlan Wilson v R [2014] NSWCCA 266 at [13]-[114]), particularly at [75]-[99] and it is not necessary to repeat them.

The conviction appeal 14The appellant appealed against his conviction on the sole ground that the trial miscarried because the appellant was charged with inconsistent verdicts. However, during the course of the hearing of the appeal the appellant was granted leave to amend this ground of appeal in the following terms: "On the facts of this case the conviction of the appellant on both Counts 6 and 7 have led to a miscarriage of justice because the elements of Count 6 are contained in the elements of Count 7." 15The relief sought was that the conviction under Count 6 or Count 7 be quashed.

The submissions on the conviction appeal 16The appellant adopted the submissions made on behalf of Yousef Jidah in his appeal. The Crown also relied on the submissions made in that appeal (see Yousef Jidah v R [2014] NSWCCA 270 [17]-[33]).

Disposition of the conviction appeal 17This appeal on conviction raises the same issues as those raised in the appeal of Yousef Jidah. For the reasons given in that appeal (Yousef Jidah v R [2014] NSWCCA 270 at [34]-[58]), the appeal against conviction should be dismissed.

The sentence appeal 18The application for leave to appeal against sentence is limited to the sentences imposed on Count 6 (the supply count). For that offence a sentence of 15 years and 9 months, comprised of a non-parole period of 10 years and 3 months and a balance of term of 5 years and 6 months was imposed against a maximum penalty of life imprisonment and a standard non-parole period of 15 years. The sentence was imposed on 23 September 2011. It took account of broken periods of pre-sentence custody. His Honour made a finding of special circumstances. 19Four grounds of appeal are relied upon. They are expressed in largely identical terms to the grounds relied upon by the appellant's brother, Yousef Jidah, who was sentenced in the same proceedings to a sentence of 13 years, comprised of a non-parole period of 8 years and 9 months and a balance of term of 4 years and 3 months. 20The grounds of appeal are as follows: (1)His Honour erred in his consideration of the standard non-parole period in that: (a)He breached Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120; (b)He erred in his finding regarding the objective seriousness of the offence; (c)His Honour erred in failing to properly assess the objective seriousness of the supply offence, by failing to take into account the inter-related nature of the two offences charged against him; and (d)His Honour erred by finding that the applicant "had knowledge of at least the approximate, if not the precise, quantity involved". (2)His Honour erred in breaching the principle of parity. (3)His Honour imposed a sentence that was otherwise manifestly excessive.

The facts found for sentencing purposes 21His Honour found that the objective seriousness of the appellant's offending was close to the top of the mid-range. He rejected counsel's submission that it was much lower than mid-range offending because the appellant had no involvement with the unpacking of the boxes inside the warehouse, where he simply acted as a lookout and was involved for a limited timeframe. 22His Honour based his finding that the offending was in the top of the mid-range upon the role the appellant performed generally, which his Honour noted the Crown had described as one of an organiser and overseer. His Honour referred to the appellant performing the task of safeguarding the drugs whilst they were in transit. 23On the appeal, although the appellant's counsel made no direct challenge to his Honour's characterisation of the appellant's offending, he maintained the submission that the sentence imposed did not reflect the limited tasks the appellant actually performed. 24His Honour also took into account the "obvious organisation and planning" involved in the operation generally, in the context of the actual role the appellant performed, together with the duration and nature of his involvement. He found that the appellant was motivated by significant but unquantified financial gain, proportional to the role he played and the risk he took in becoming involved in a large scale commercial supply. 25His Honour made the following additional factual findings: (a)The appellant recruited his brother to transport the boxes; (b)He met with ES on the evening of 12 August 2008 and the next morning instructed his brother to take the day off; (c)He consulted with ES as to "how many cement bags did we pick up" to which ES responded "three million"(His Honour concluded this conversation related to the individual tablets in the consignment which were calculated to be 2.6 million - see the summary of the phone call in Lachlan Wilson v R [2014] NSWCCA 266 at [78]); (d)Later that day he coordinated with his brother for a meeting at ES's father's house after which he travelled in convoy with his brother to collect the boxes. He maintained contact with ES en route; (e)He reported to ES what he believed to be police surveillance and reported the same to his brother, discussing with each of them the appropriate reaction; (f)He communicated the instruction from ES to his brother to abandon "the car and everything"; (g)He then collected his brother and met up again with ES; (h)He accompanied ES to the warehouse alert to the risk of police surveillance; (i)He liaised with his brother regarding the collection of the boxes the following day and attended the warehouse on 14 August; and (j)He remained in contact with ES while the boxes were being loaded into the van and waited nearby for the purposes of escorting it. 26His Honour noted the submission of counsel that the evidence was insufficient to support the inference that the appellant had knowledge of the actual quantity of drugs involved, or any quantity approaching that quantity, in contrast to the knowledge of others in the enterprise - ES in particular. 27His Honour considered that the close relationship between ES and this appellant, the fact that he knew he required a van with a large carrying capacity to transport the boxes, together with the fact that it took a substantial time to load and unload the boxes, meant the only reasonable explanation that was available on the totality of the evidence, was that the appellant knew of "the approximate, if not the precise, quantity [of drugs] involved". His Honour's finding that the appellant's brother knew (or believed) he was handling "hundreds of kilograms" of prohibited drugs is not a relevantly different conclusion, or at least not materially different for sentencing purposes.

The appellant's subjective circumstances 28His Honour acknowledged the tender of what he described as a wealth of subjective material, including a psychological assessment from Ms Danielle Hopkins and references from family members who described the appellant as a man of integrity and honesty. He noted the appellant's background and family history and that he was subjected to harsh physical punishment as a child. 29The appellant completed Year 12 and 16 months of a TAFE course as an apprentice electrician. He was aged 27 at the time of the offending and was paying off a mortgage with his wife, working seven days a week as a concrete labourer. His wife was expecting their first child at the time of sentence and, being under medical advice that she was not to lift more than 15 kg, was heavily dependent upon the appellant on a day-to-day basis. 30His Honour accepted that the appellant had what he described as a "strong store of otherwise good character" and that in many areas of his life he had made a positive and worthwhile contribution to society. He considered that the appellant's prospects of rehabilitation were good and that he was unlikely to "ever reoffend in this particular way".

Ground 1(b): His Honour erred in his consideration of the standard non-parole period in that he erred in his finding regarding the objective seriousness of the offence

Ground 1(c): His Honour erred in his consideration of the standard non-parole period in that his Honour erred in failing to properly assess the objective seriousness of the supply offence, by failing to take into account the inter-related nature of the two offences charged against him 31Despite the separate formulation of grounds 1(b) and (c), at the hearing submissions were only made with respect to ground 1(c). It was not submitted that ground 1(b) raised any issue over and above ground 1(c). Ground 1(b) may therefore be considered to be encapsulated by ground 1(c). For the reasons we gave when rejecting the equivalent ground of appeal to ground 1(c) in the appellant's brother's sentence appeal, this ground of appeal is also rejected (see Yousef Jidah v R [2014] NSWCCA 270 at [67]-[76]).

Ground 1(d): His Honour erred in his consideration of the standard non-parole period in that his Honour erred by finding that the applicant "had knowledge of at least the approximate, if not the precise, quantity involved" 32As concerns the weight of what the appellant believed to be prohibited drugs in the boxes, his Honour found that, given the totality of the evidence, the only reasonable explanation for the appellant's conduct was that he had knowledge of at least the approximate, if not the precise, quantity involved. 33As we observed when dealing with the appeal against the severity of sentence brought by his brother (Yousef Jidah), where the same ground of appeal was advanced, the absence of any direct evidence of the extent of the appellant's knowledge does not mandate a finding that it was not open to the sentencing judge to draw the inference of knowledge of the quantity of drugs in that consignment beyond reasonable doubt from the totality of the evidence, including the objective nature and scale of the enterprise and what the appellant did as a participant in that enterprise. 34In reasoning to the conclusion adverse to the appellant on the issue of knowledge, in addition to the various matters set out above, his Honour also relied in particular upon the close relationship between ES and the appellant, albeit that it was not a relationship that was necessarily reflected in his appointment of any role in the enterprise before 12 August 2008 in the supply phase of the operation. His Honour made specific reference to the telephone conversation concerning cement bags as set out at par [78] in Lachlan Wilson v R [2014] NSWCCA 266. Counsel submitted that, contrary to the construction of that conversation as contended for by the Crown and found by his Honour, we would be left in doubt as to whether the reference to the three million cement bags was a reference to drugs at all. Counsel was unable to advance any other construction of the conversation. 35 We are satisfied that it was open to his Honour, in the context of all of the evidence in the case, to regard that conversation as illuminating. We also note the terms of another intercepted conversation three hours later as set out in Lachlan Wilson v R [2014] NSWCCA 266 at [79] where, after the container was delivered to the warehouse, ES asked DS "did you find them" and "how many". He then said if there were not 45 to call him "straight away". It was immediately following that phone call that ES called the appellant and told him to "get ready". The appellant said he was "waiting" and enquired whether he needed (what we interpret to be) the van, immediately. ES said it had to be "pronto" whereupon the appellant enquired, "Hows it lookin'? Hows, hows the .... (indecipherable)", to which ES responded, "Everything's all right". It was after that conversation that the appellant arranged to meet with his brother, after which they proceeded to the warehouse, loaded the van and the boxes were transported. 36The summary of the appellant's involvement thereafter, set out in Lachlan Wilson v R [2014] NSWCCA 266 at [80]-[99] (the jury having plainly rejected the appellant's account of his irregular driving as consistent with his unbridled passion for his car), in addition to the evidence to which his Honour made specific reference, is a sufficient basis to support a finding beyond reasonable doubt that the appellant was aware of the scale of the operation and the approximate quantity of drugs involved.

Ground 1(a): His Honour erred in his consideration of the standard non-parole period in that he breached Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 37At the time of sentence the High Court's decision in Muldrock v The Queen supra had not been delivered. Although his Honour did not refer to this Court's decision in R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 as requiring him to point to the extent to which the appellant's offending departed from a notional offence in the mid-range of objective seriousness as the first step in the two-stage approach to sentencing for an offence carrying a standard non-parole period, the Crown's written submissions on sentence commended that approach to his Honour as the correct approach of law. 38It is clear from his Honour's sentencing remarks that he made a finding as to where, referable to that notional range, the appellant's offending should be appointed and that he did so expressly for the purpose of considering the standard non-parole period and whether there should be a departure from it by balancing out other factors in the appellant's subjective case. That his Honour took this approach is patent from the following passage. After finding that the objective gravity of the offending was "within the mid range but at the very bottom of the mid range" he went on to say: "I should point out that in relation to Ibrahim Jidah I do propose to depart from the standard non parole period which applies to offences in the middle of the range of objective gravity. I do propose to depart because of the finding of special circumstances and because of the particular combination of otherwise good character and what I consider to be the very good prospects of rehabilitation. It is a combination of features that cause me to depart." 39On the appeal, the Crown conceded that it would be open for this Court to find that the sentence was infected by the two-stage process of reasoning the High Court found to be a wrong approach in Muldrock v The Queen supra. We regard that concession as properly made. We are satisfied that this ground of appeal is made out for that reason. 40The question is whether on re-sentence we are persuaded that the Muldrock error has resulted in a failure to afford the appellant's subjective circumstances sufficient weight in the synthesising of all the matters material to sentence and/or whether the standard non-parole period was given a primary or determinate significance such that when we undertake the re-sentencing exercise we can reach the positive view that another sentence is warranted in law as required by s 6(3) of the Criminal Appeal Act 1912 (NSW).

Ground 2: His Honour erred in breaching the principle of parity 41The appellant complains that relative to the sentences imposed on Lachlan Wilson and upon DS, being respectively 16 years and 2 months and 15 years 11 months and 1 week (each of whom participated with the appellant in the supply of the pseudoephedrine but at more elevated levels in the notional hierarchy of offenders in the syndicate), and relative to the sentence imposed on ES (to whose direction the appellant was subject at all times in the supply phase of the importation of the drug), being an undiscounted sentence of 16 years and 6 months, the appellant's sentence of 15 years and 9 months engenders a justifiable sense of grievance. 42The principle of parity derives from the fundamental norm of equal justice. In Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462, at [28] per French CJ, Crennan and Kiefel JJ, their Honours said of equal justice: "It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen: 'Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.'" (References omitted). 43The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be "gross", "marked" or "glaring" (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]). 44In Gill v R [2010] NSWCCA 236 at [58], McColl JA (with whom RS Hulme and Latham JJ agreed) observed that an applicant faces considerable obstacles in invoking the parity principle in circumstances where a sentence, said to give rise to a justifiable sense of grievance, was imposed by a sentencing judge who was aware of the sentences imposed on co-offenders and it is clear that the sentence is structured in that knowledge. 45This appellant and his brother were the first of the five convicted co-offenders to be sentenced. Eight months later, in May 2012, Lachlan Wilson was sentenced for his role in knowingly taking part in the supply of the same quantity of drugs this appellant and his brother were involved in supplying. Lachlan Wilson, being sentenced to 16 years and 2 months imprisonment with a non-parole period of 10 years and 6 months, received a sentence 5 months longer in total than the sentence imposed on this appellant, with a differential of only 3 months in the non-parole period. DS, who was sentenced almost 12 months after this appellant, received a sentence of 15 years 11 months and 1 week and a non-parole period of 10 years 4 months and 1 week, only 2 months and 1 week longer than the sentence imposed on this appellant with a differential of 1 month and 1 week in the non-parole period. 46In imposing the sentence on Lachlan Wilson, his Honour referred to the decision in Muldrock v The Queen supra and that this appellant and his brother had been sentenced under an approach to the application of Part 4 Div 1A of the Crimes (Sentencing Procedure) Act 1999 (NSW) that applied at the time of their sentences and that has since been disapproved. In sentencing Lachlan Wilson, his Honour also made specific reference to equal justice considerations and the question of parity when referring to the non-parole periods imposed upon this appellant and his brother eight months earlier. He also expressed the view that, despite the change in the approach to the standard non-parole period post Muldrock v The Queen supra, the non-parole periods he imposed were commensurate with the minimum terms that could properly be imposed for their offending having regard to its objective gravity and their criminal antecedents which denied them some level of leniency. His Honour's observations, whilst entitled to the greatest respect, do not bind this Court on re-sentence, given Muldrock error was conceded by the Crown. 47Similarly, when sentencing DS for his role, which his Honour described as one involving the coordination and supervision of the arrival of the container and unpacking the boxes to isolate the drugs, he referred to the sentences he had already imposed on this appellant and his brother and on Lachlan Wilson. It was in those sentencing remarks that he described the role of this appellant as "the escort" and his brother as "the driver". 48DS's sentence appeal was upheld, in part, on parity grounds when compared with the sentence imposed on Lachlan Wilson (DS v R [2014] NSWCCA 267). He was re-sentenced to a term of imprisonment of 14 years and 6 months, comprised of a non-parole period of 9 years and 6 months with a balance of term of 5 years. The finding of special circumstances was preserved. Lachlan Wilson's sentence appeal (which included a ground that his sentence was disproportionate to the sentence imposed on ES) was dismissed (see Lachlan Wilson v R [2014] NSWCCA 266). 49The sentence imposed on DS after re-sentence leads inevitably to there being an unjustified disparity in the sentence imposed on this appellant and his brother. The necessity for this appellant's sentence to reflect the overriding principle of equal justice will be addressed in the context of re-sentence which, in light of the Crown concession that a Muldrock error is made out, is the inevitable outcome of his sentence appeal. 50Were we not persuaded that the ground of appeal alleging disparity was made out, we would not have intervened to re-sentence on the basis that the sentence imposed at first instance was manifestly excessive, in the sense of it being unreasonable or plainly unjust, after giving due weight to all relevant circumstances particular to this appellant's offending, including the maximum penalty of life imprisonment.

Re-sentence 51On re-sentence, an affidavit by Ross Patrick Hudson, solicitor, was relied upon. He also annexed various documents updating the appellant's custodial and family circumstances after having been a serving prisoner for a number of years. In summary, that material confirms that his Honour's assessment of the appellant as having good prospects of rehabilitation has been borne out. He has not been the subject of any disciplinary charges in custody and has been regarded by correctional staff members as compliant, respectful and hardworking. He has undertaken various courses to improve his literacy and to enhance his vocational skills. He has held various positions within the prison and most recently has been given clearance to work in a position where he liaises with inmates and staff. His wife has since given birth to their first child and supports herself and her child with government benefits. 52Having regard to his Honour's findings of fact, and our own assessment of the criminal culpability of this appellant relative to his co-offenders, including his brother who he recruited to be the driver, and having regard to the material relied upon on re-sentence, in addition to the material available to the sentencing judge bearing upon the appellant's subjective circumstances, we consider a sentence of imprisonment for 12 years and 6 months, comprised of a non-parole period of 8 years and 6 months, and an additional term of 4 years is the appropriate sentence. This preserves the finding of special circumstances made by the sentencing judge although the ratio between the non-parole period and the additional term has been altered slightly to ensure the non-parole period, as the minimum time the appellant should serve in custody, adequately reflects the gravity of his offending utilising the standard non-parole period of 15 years as a legislative guidepost.

Orders 53The Court makes the following orders: (1)Appeal against conviction dismissed. (2)Grant leave to appeal against sentence. (3)The sentence imposed in the District Court on 23 September 2011 on Count 6 on the indictment is quashed. (4)In lieu thereof, a sentence of imprisonment of 12 years and 6 months is imposed, commencing on 27 April 2010 and expiring on 26 October 2022, comprising a non-parole period of 8 years and 6 months and an additional term of 4 years. (5) The appellant will become eligible for release on parole upon the expiration of the non-parole period on 26 October 2018.

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: 28 November 2014

Drug Misuse and Trafficking Act 1983(NSW)

Drug Misuse and Trafficking Regulation 2011(NSW)

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