Ibrahim v R [2019] NSWCCA 188 | Case summary

Court of Criminal Appeal (NSW)|2019-04-01|Before: Bathurst CJ, Price J, Adams J

The applicant's submissions

In his written submissions, the applicant submitted that it was necessary to identify what the offender did rather than simply designate him with a label. He submitted that what was relevant in conspiracy charges was "the organisational nature of a conspiracy and the interrelationship between the various participants, rather than an identification of the role of a particular conspirator by reference solely the physical acts performed by that person".
At the hearing, counsel for the applicant described the applicant as a "middleman". He referred to the fact that Ms Dior was the applicant's sister, submitting the applicant's connection with the enterprise was "a familial one and not as a result of resources he himself had within the criminal milieu". Counsel for the applicant accepted that the applicant had criminal associations but said he made no effort to use them when negotiations started. He submitted that the applicant's role was limited to establishing contact between the Mileski side of the conspiracy and the DeMarco side of the conspiracy.
Counsel for the applicant submitted that the sentencing judge erred in relying on the remarks of Judge Toner in sentencing Mr DeMarco, as the agreed facts in that case were different from those in the case before him. In written submissions, it was pointed out that the agreed facts which were before Judge Toner for the purpose of sentencing Mr Mileski included the fact that the applicant funded the conspiracy of which there was no evidence or agreed fact in the case against the applicant. It was submitted that the findings that the applicant was "the controlling mind" of the conspiracy, the "essential beneficiary had the conspiracy achieved its aim", and that he was the person "providing the funds to acquire the firearms", were not available on the facts before the sentencing judge to be made beyond reasonable doubt.

The Crown's submissions

The Crown submitted that the paragraphs of the agreed statement of facts referred to by the sentencing judge (see [6], [12] and [14] above) and the instruction given by the applicant to Mr Mileski to make sure "they" were new and not "shit ones", showed that the applicant was the financier. She referred to the statement by Mr Mileski to Ms Dior, "tell Sam that he needs another $23,000". She also submitted that the statement "that money is in addition to the $10,000 he already has" supported the inference to be drawn that these funds had also come from the applicant.
The Crown submitted that the fact that Mr DeMarco may have been able to get guns from someone else was irrelevant because the focus was on the conspiracy charged, not some other conspiracy or offence.

Consideration

It could not be contested that the applicant fell to be sentenced on the facts and evidence before the sentencing judge. Disputed factual findings adverse to the applicant are required to be established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64]-[65].
It has been emphasised in cases where co-offenders have been sentenced on different evidentiary bases (whether by way of agreed facts or on findings made by the sentencing judge) that in considering any issue of parity which may arise, it is necessary to consider the actual facts on which each offender was sentenced: PG v R [2017] NSWCCA 179 at [23]-[24]; Borg v R [2019] NSWCCA 129 at [92]-[94]. This is consistent with the principles to which I have referred at [49] above.
With respect to the sentencing judge, it is not entirely clear that in making the remarks to which I have referred at [26]-[27] above, he was simply adopting the remarks of Judge Toner without regard to the different factual basis on which Judge Toner sentenced Mr Mileski, or whether he was simply saying that he had reached the same conclusion as Judge Toner having regard to the facts before him. If he adopted the former approach he erred, if the latter he did not, providing that the adverse findings that the applicant was "the moving party", "the controlling mind", "the essential beneficiary" of the conspiracy and the person who provided the funds to acquire the firearms, could be established beyond reasonable doubt.
The relevant factual material contained in the agreed facts is set out at [5]-[12] above. Critical is the agreed fact to which I have referred at [6] above, "Ibrahim actively planned and organised for Mileski and Dior to obtain firearms to provide them to DeMarco so that he, in turn, could supply them to the UCO [undercover operative]". That statement itself justified the finding that the applicant was "the moving party" behind the conspiracy. Some support for this conclusion can also be obtained from the complaints and demands the applicant made of Mr Mileski, to which I have referred at [18] above.
Further, the conversation of 12 February 2014, to which I have referred at [12] above, makes it clear in my view that the applicant was funding the purchase. The conversation referred to six "brand new things" costing five and a half each. The cost of six new pistols at $5,500 each totals $33,000. It was stated that was the money that the applicant needed to have or obtain (along with the hiring cost of the car).
There is more difficulty with the finding that the applicant was "the controlling mind" and "the essential beneficiary" of the conspiracy. If all the sentencing judge meant in saying that the applicant was a "controlling mind" was that he actively planned and organised the conspiracy, that was consistent with the agreed facts.
However, if the finding was intended to suggest that the applicant exercised control over Mr Mileski and Ms Dior in their part of the conspiracy, namely obtaining the firearms, or over Mr DeMarco's role in disposing of the firearms, there is in my opinion insufficient evidence to establish those facts beyond reasonable doubt. There is no evidence to show that the applicant had any control over where the guns were to be sourced or any control over the identity of the buyer or price at which Mr DeMarco was to sell them. Similarly, there is insufficient evidence of the proposed division of the proceeds to justify the conclusion beyond reasonable doubt that the applicant was "the essential beneficiary".
In these circumstances, in my opinion, the sentencing judge erred in finding that the applicant was "the essential beneficiary". It is not necessary to conclude whether or not he erred in concluding that the applicant was "the controlling mind" which as I indicated depended on what he was intending to convey by that comment.
However that is not to say that the sentencing judge erred in concluding that the applicant's role in the conspiracy meant that his offence was the most serious of that of the four offenders. As was pointed out by Simpson J (as her Honour then was) in Tyler v The Queen (2007) 173 A Crim R 458 at [78], it has long been established that in sentencing for conspiracy a relevant consideration is the role played by the offender. In the present case the offender was the person who actively planned and organised the conspiracy and financed it and thus played the most significant role. His offending was accordingly the most serious.
Notwithstanding, the sentencing judge in my opinion erred, at least to the extent he found the applicant was "the essential beneficiary".
It follows that this ground has been made out.

Grounds 2 and 3

All four co-conspirators were committed for a joint trial commencing on 7 November 2016. Mr Mileski and Ms Dior entered pleas of guilty on 14 November 2016 and Mr DeMarco on 16 November 2016. They all received a discount of 15% for their plea.
The applicant submitted his plea on 17 November 2016 and received a discount of 10%. The applicant's complaint made under these grounds was that the sentencing judge failed to give the same discount, particularly having regard to the Crown's concession at the trial that "in terms of the timing, there's not much difference".
The Crown properly conceded that the sentencing judge had erred in these circumstances in not giving the same discount as was given to the other co-conspirators and it was therefore necessary to resentence the applicant.

Ground 4 - Error in failing to give effect to a finding of special circumstances

As I indicated at [36] above, the judge after considering the applicant's drug addiction found special circumstances which justified some minor lengthening of his parole period. He imposed a sentence backdated by two months to take account of the offence the applicant was already serving.
Viewed in isolation, the sentence imposed of 9 years with a non-parole period of 6 years and 6 months seems to give effect to the minor adjustment the sentencing judge determined was appropriate, the ratio of the non-parole period to the total sentence being approximately 72.2%. However, as only approximately 2 months of the sentence was to be served concurrently with the sentence imposed for the earlier offence, the total sentence the applicant would serve prior to being eligible for parole was 7 years and 2 months with a balance of term of 2 years and 6 months, the total effective sentence being 9 years and 8 months. The ratio of the non-parole period to the total sentence so calculated is approximately 74.1%.
The applicant in his submissions pointed to the fact that "accumulation of sentences can, in and of itself, constitute a basis for a finding of special circumstances" and to authority which held that "in cases where the finding of special circumstances was more broadly based then [sic] the accumulation itself and where the sentencing judge has not clearly indicated their awareness of the fact that the total effective sentence will remain in accordance with (or close to) the 'statutory norm' the court has intervened" (see Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25 at [83]). The applicant submitted that this was such a case.
The Crown submitted that there was an adjustment, albeit minor, and the finding of special circumstances was in any event "generous" as a non-parole period of 2 years and 6 months was "ample time for the applicant to address his drug addiction". The Crown submitted, referring to R v Fidow [2004] NSWCCA 172 at [22] that a finding of special circumstances does not mean that the sentencing judge is obliged to vary the statutory ratio.

Consideration

This ground can be dealt with relatively shortly as it is necessary to resentence in any event. Having regard to what I set out at [64] above, it seems to me clear that the sentencing judge in considering the appropriate non-parole period failed to take into account the fact that the sentence was being accumulated on the sentence for the previous offence.
The Crown submitted that there was an adjustment to the statutory ratio. However, the adjustment after accumulation was taken into account was marginally more than one month. To adopt the words in R v Sutton [2004] NSWCCA 225 at [30] and El-Ahmad v R [2015] NSWCCA 65 at [50] the reduction made "a mockery of a finding of special circumstances".
The Crown correctly pointed out, referring to R v Fidow [2004] NSWCCA 172 at [22] that because there is a circumstance capable of constituting a "special circumstance" does not mean that the sentencing judge is obliged to vary the statutory proportion. The difficulty here is that the sentencing judge indicated an intention to vary the statutory proportion but failed to do so in any meaningful respect.
It follows that this ground of appeal has been made out.

Resentence

It is thus necessary to resentence the applicant. I have set out the facts and the applicant's subjective circumstances above and it is unnecessary to repeat them.
I have also indicated that although it was not open to find that the applicant was "the controlling mind" or "the essential beneficiary", as the applicant was the active planner, organiser and financier, his offence was more serious compared to that of his co-offenders. I should indicate that I do not regard it as relevant that Mr DeMarco could obtain guns from other sources. The offenders were sentenced for the conspiracy the subject of the indictment not for some other offence.
The offence was a serious one. As the sentencing judge pointed out the maximum penalty for the underlying offence, namely supplying firearms on an ongoing basis contrary to s 51B(1) of the Firearms Act 1996 (NSW), is 20 years. The illegal supply of weapons the subject of the conspiracy self-evidently constitutes a danger to the community and is an offence which calls for a significant degree of both general and personal deterrence. Although the conspiracy was unsuccessful that does not, in my view, mean that the offence was not a serious one, nor lessens the requirement for both general and personal deterrence.
Further, the applicant had an extensive criminal history dating back to 1984 including in 2005 the offence of hindering the investigation of a serious indictable offence and in 2009 the offence of detaining in company with an intent to obtain an advantage. He was ordered to serve a term of imprisonment in respect of both of these offences. In addition, he was on bail at the time he committed the present offence.
The evidence led on resentence included that since he was sentenced the applicant has committed three custodial offences, including the offence of intimidation in November 2018 in respect of which he was sentenced to 7 days in his cell.
I have taken into account the sentencing judge's findings of the applicant's subjective circumstances which I have set out at [28]-[32] above, including his findings that the applicant's expression of remorse was genuine (see [33] above) and that his rehabilitation prospects would be improved if he was able to undertake comprehensive drug rehabilitation (see [34] above).
Taking all these matters into account, I have considered, as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] whether a lesser sentence is warranted in law. It seems to me that a lesser sentence is warranted to the extent that there should be a discount of 15% for the plea of guilty and an adjustment to the non-parole period to take account of accumulation and special circumstances.
In these circumstances, allowing for a discount for the applicant's plea of guilty of 15% and a reduction in the statutory ratio to 70% of the total sentence, I would sentence the applicant to a term of imprisonment of 8 years and 6 months to commence on 9 December 2014 with a non-parole period of 5 years and 9 months expiring on 8 September 2020 and a balance of term of 2 years and 9 months expiring on 8 June 2023.

Conclusion

In the result I would make the following orders: 1. Grant the applicant an extension of time for notice of application for leave to appeal up to and including 18 February 2019. 2. Grant the applicant leave to appeal. 3. Appeal allowed. 4. Quash the sentence imposed on the applicant and in lieu thereof sentence the applicant to a term of imprisonment of 8 years and 6 months to commence on 9 December 2014 with a non-parole period of 5 years and 9 months expiring on 8 September 2020 and a balance of term of 2 years and 9 months expiring on 8 June 2023. 5. The earliest date the applicant will be eligible to be released on parole is 8 September 2020.
PRICE J: I agree with Bathurst CJ.
N ADAMS J: I agree with the orders proposed by the Chief Justice for the reasons provided by his Honour.

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[This headnote is not to be read as part of the judgment] Hassan (Sam) Ibrahim (the applicant) pleaded guilty to a charge of conspiring to unlawfully supply pistols or prohibited firearms contrary to the common law. Following the applicant's guilty plea, the applicant was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years and 6 months. The sentencing judge backdated the sentence to commence on 8 December 2014 as at the time of his sentence, the applicant was serving an 18 month term of imprisonment for an unrelated offence on 9 April 2014 and expired on 8 October 2015. The applicant was to be released on recognisance for the unrelated offence on 8 February 2015. The objective of the conspiracy was to supply pistols to a purchaser who was in fact an undercover police operative. There were four co-conspirators: the applicant, Mr Paul DeMarco, Mr Elvis Mileski and Ms Jazz Dior. Mr Mileski and Ms Dior entered pleas of guilty on 14 November 2016, and Mr DeMarco on 16 November 2016. They each received a discount of 15% for their plea. The applicant submitted his plea of guilty on 17 November 2016 and received a discount of 10%. In sentencing remarks, the sentencing judge found that the applicant was "the controlling mind" of the conspiracy, "the essential beneficiary" and the most "significant participant". The sentencing judge also made a finding of special circumstances. The applicant appealed against his sentence. Two of the applicant's grounds of appeal related to the failure of the sentencing judge to give the same discount to the applicant for his plea of guilty as was given to the co-offenders. The Crown conceded that the sentencing judge erred in failing to give the applicant the same discount for his guilty plea as was given to the other co-offenders. There were two main issues on appeal. 1.Whether the sentencing judge erred in his assessment of the applicant's criminality by making findings of fact that were not available on the evidence? 2.Whether the sentencing judge erred by failing to give effect to the finding of special circumstances where the partial accumulation of the sentence upon a previously imposed sentence resulted in an effective overall non-parole period that was only marginally less than the statutory ratio? Error in the assessment of the applicant's criminality (i) It was open to the sentencing judge on the evidence to find that the applicant was "the moving party" behind the conspiracy and that the applicant was funding the purchase of the pistols. However, the sentencing judge erred in finding that the applicant was "the essential beneficiary" of the conspiracy as there was insufficient evidence of the proposed division of the proceeds to justify this conclusion beyond reasonable doubt. It was therefore unnecessary to conclude whether the sentencing judge erred in concluding that the applicant was "the controlling mind": [49]-[59] (Bathurst CJ); [80] (Price J); [81] (N Adams J). R v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; PG v R [2017] NSWCCA 179; Borg v R [2019] NSWCCA 129; Tyler v The Queen (2007) 173 A Crim R 458 referred to. Error in failing to give effect to a finding of special circumstances (ii) In considering the appropriate non-parole period, the sentencing judge erred in failing to take into account the fact that the sentence was being accumulated on the sentence for the previous offence. The sentencing judge indicated an intention to vary the statutory proportion but failed to do so in any meaningful respect as the adjustment after accumulation was taken into account was marginally more than one month: [67]-[70] (Bathurst CJ); [80] (Price J); [81] (N Adams J). Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25; R v Fidow [2004] NSWCCA 172; R v Sutton [2004] NSWCCA 225; El-Ahmad v R [2015] NSWCCA 65 referred to. In resentencing the applicant to a term of imprisonment of 8 years and 6 months, with a non-parole period of 5 years and 9 months, the Court allowed for a discount for the applicant's plea of guilty of 15% and a reduction in the statutory ratio to 70% of the total sentence.

Ibrahim v R

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