Ibrahim v R - [2022] NSWCCA 161 - NSWCCA 2022 case summary — Zoe

NSWNSWCCA

Ibrahim v R

[2022] NSWCCA 161

Court of Criminal Appeal (NSW)|2022-04-22|Before: Harrison J, Davies J, Hallen J, Ms P

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2022-04-22

Before

Harrison J, Davies J, Hallen J, Ms P

Catchwords

[2013] NSWCCA 123 Betka v R
Ghazaoui v R
Hawchar v R [2020] NSWCCA 191 Burke v R [2022] NSWCCA 6 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301
Bechara v R [2011] NSWCCA 67

Source

Original judgment source is linked above.

Catchwords

[2013] NSWCCA 123 Betka v RGhazaoui v RHawchar v R [2020] NSWCCA 191 Burke v R [2022] NSWCCA 6 Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301Bechara v R [2011] NSWCCA 67(2011) 205 A Crim R 274 Gill v R [2010] NSWCCA 236 Haval Kada v The Queen[2017] VSCA 339 He v Sun (2021) 104 NSWLR 518[2021] NSWCA 95R v LeNguyen v RR v Nguyen [2013] NSWCCA 36 Wan v R [2017] NSWCCA 261 Zreika v R [2012] NSWCCA 44

Judgment (27 paragraphs)

[1]

ay v The Queen (1995) 184 CLR 19; [1995] HCA 66 Smith (a pseudonym) v R [2022] NSWCCA 123 Stephens v R [2009] NSWCCA 240 Stevenson v R [2022] NSWCCA 133 Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 Wan v R [2017] NSWCCA 261 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 Texts Cited: Nil Category: Principal judgment Parties: Moustafa Ibrahim (Applicant) Crown (Respondent) Representation: Counsel: Mr T Game SC & Ms A Francis (Applicant) Mr L Crowley QC with Ms P McEniery (Respondent)

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty and was sentenced to five offences contrary to the Criminal Code Act 1995 (Cth). The offences related to the applicant's involvement, with others, in three criminal syndicates which were the subject of a major controlled operation undertaken by the Australian Federal Police. The sentencing judge found that the applicant would not have engaged in the offending conduct without the opportunity presented by the undercover operative, but that once the opportunity was presented the applicant was a willing participant. This resulted in a finding that the applicant's culpability was diminished but not substantially. The applicant's role was found by the sentencing judge to be that of a trusted and willing participant who engaged in the offending expecting significant financial gain. The applicant sought leave to appeal against his sentence of 30 years with a non-parole period of 18 years, challenging the findings concerned with the involvement of the undercover operative and the applicant's participation in the conspiracies, including the relevance of general and specific deterrence, the discount accorded for the applicant's plea, and issues of parity with one of the co-offenders. Held (per Davies J, Harrison and Hallen JJ agreeing) granting leave to appeal and allowing the appeal, resentencing the applicant to an aggregate sentence of 25 years with a non-parole period of 15 years. ([116]; [125]): (1) The sentencing judge did not err in the finding that the applicant would not have committed the offences save for the involvement of law enforcement, nor in the conclusion that the involvement of the undercover operative did not substantially dimmish the applicant's culpability. ([54]; [58]; [65]). (2) The assessment of culpability is essentially part of the instinctive synthesis, like the assessment of the objective seriousness of an offence. It is necessary for the applicant to point to an error in the House v The King sense (House v The King (1936) 55 CLR 499; [1936] HCA 40). ([45]-[47]). (3) There are inherent problems with a ground that can only be a challenge to the weight given to the issue of an offender's culpability. ([47]; [49]). Stephens v R [2009] NSWCCA 240 at [16] to [18]; Majid v R [2010] NSWCCA 121 at [40]; Morgan v R [2017] NSWCCA 269 at [70], applied. (4) The sentencing judge's conclusion that the applicant's culpability was diminished was all that needed to be said - the diminution cannot be expressed as a proportion or a percentage nor otherwise quantified. The sentencing judge's finding that the extent of diminution was not substantial was open to her on the analysis her Honour carried out of the applicant's involvement in the offending and the relationship between him and the undercover operative. ([53]; [58]; [63]). Director of Public Prosecutions (Vic) v Kumas [2021] VSCA 215, considered. (5) There is no dichotomy between coercive and non-coercive behaviour on the part of an undercover operative, but instead a spectrum along which impact is to be assessed. Coercion or pressure would be an additional factor, but the authorities do not require pressure or coercion for the principles associated with police involvement to apply. ([59]; [61]; [62]-[64]). Haval Kada; R v Taouk; R v N [1999] NSWCCA 187; (1999) 106 A Crim R 493, applied. (6) The sentencing judge appropriately dealt with both general and specific deterrence. In the absence of there being raised before the sentencing judge an issue of how police involvement in the offending bore upon the consideration of specific and general deterrence, no error is shown. ([69]-[70]). Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460, applied. (7) As to parity, where the same judge sentences both co-offenders and gives detailed reasons for the sentences imposed on each, this Court will be cautious before determining that one of the offenders has a justifiable sense of grievance because of sentence outcomes. ([79]-[80]). R v Swan [2006] NSWCCA 47 at [71]; Pavicevic v R [2010] ACTCA 25; R v Spizzerri [2001] VSCA 49 at [10]; Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 at [39]-[41]; Gill v R [2010] NSWCCA 236 at [58]; Lam v R [2014] NSWCCA 50 at [42], applied. (8) The parity exercise did not miscarry and the applicant could have no justifiable sense of grievance. The ultimate difference between the co-offender's sentence and the indicative sentence for the applicant was small, when regard was had to the notional starting points. The disparity was not gross, marked or glaring. ([85]-[87]). (9) No basis is shown for suggesting that 25% was not the appropriate discount for the utilitarian value of the applicant's plea. Any discount for facilitating the course of justice is not quantified, and it is clear that the sentencing judge took the matter into account. ([84]; [97]-[99]). Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191, considered. (10) The aggregate sentence imposed on the applicant is manifestly excessive. The undiscounted indicative sentences for the narcotics offences (of 28 and 30 years) fall outside the range of reasonable sentences in the circumstances of the applicant's offending. The notional accumulation was unreasonable given the inter-relation between all of the offences. ([110]; [114]-[116]). (11) The Court is authorised to impose an aggregate sentence for multiple Commonwealth offences. ([121]). Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556, applied; R v Delzotto [2022] NSWCCA 117. Patel v R [20222] NSWCCA 3, considered.

[4]

Judgment

HARRISON J: I agree with Davies J.
DAVIES J: The applicant pleaded guilty in the Local Court to a number of offences involving conspiracies to import tobacco and commercial quantities of MDMA at various dates between November 2016 and July 2017. The applicant was committed for sentence to the District Court, where he was sentenced by Yehia SC DCJ on 20 May 2020 to an aggregate sentence of thirty years' imprisonment commencing 8 August 2017 and expiring 7 August 2047 with a non-parole period of 18 years expiring 7 August 2035: R v Ibrahim, Moustafa [2020] NSWDC 254.
The particular offences, and the indicative sentence for each, are as follows: Sequence 1: Conspiracy to import a commercial quantity of a border controlled drug, namely, 594.43kg of MDMA between 10 November 2016 and 8 August 2017, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth). This conspiracy is referred to as the "syndicate one transaction", and the co-conspirators were Ryan Watsford, Mostafa Dib, Hakan Arif, Hassan Fakhreddine and Ahmad Ahmad. The maximum penalty for this offence is life imprisonment and/or 7,500 penalty units. The indicative sentence was 21 years' imprisonment. Sequence 12: Deal with instrument of crime, namely, $1,800,000.00, between 13 April 2017 and 26 May 2017 contrary to s 400.3(1) of the Criminal Code (Cth). The maximum penalty for this offence is 25 years' imprisonment and/or 1,500 penalty units. The indicative sentence was eight years and six months' imprisonment taking into account sequences 13 and 14 on a s 16BA Schedule. Sequence 13: Importing tobacco products with the intention of defrauding the Revenue between 9 March 2017 and 14 July 2017 contrary to s 233BABAD(1) of the Customs Act 1901 (Cth). The maximum penalty for this offence is ten years' imprisonment and/or a fine of $55 million. This sequence was placed on a s 16BA schedule in relation to sequence 12. Sequence 14: Deal in the proceeds of crime where the value of the money was $1,000,000 or more between 11 July 2017 and 24 July 2017 contrary to s 400.3(1) of the Criminal Code. The maximum penalty for this offence is 25 years' imprisonment and/or 1,500 penalty units. This offence was placed on a s 16BA schedule in relation to sequence 12. Sequence 15: Deal with instrument of crime, namely, $2,224,540.00, on or about 24 July 2017 contrary to s 400.3(1) of the Criminal Code. The maximum penalty for this offence is 25 years' imprisonment and/or 1,500 penalty units. This offence was called the "future tobacco transaction". The indicative sentence was six years' imprisonment. Sequence 18: Conspiracy to import commercial quantities of border controlled drugs being 392.95kg of MDMA in the first transaction forming part of the conspiracy, and 344.6kgs of MDMA, 91.87kg of cocaine and 12.04kg of methamphetamine in the second transaction in the conspiracy between 22 March 2017 and 8 August 2017, the co-conspirator being Steven Elmir, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code. This conspiracy is referred to as the "syndicate two drug transaction". The maximum penalty for this offence is life imprisonment and/or 7,500 penalty units. The indicative sentence taking into account sequence 20 on the s 16BA Schedule was 22 years and six months' imprisonment. Sequence 20: Aid, abet, counsel or procure the commission of an offence of trafficking a commercial quantity of MDMA contrary to ss 302.2(1) and 11.2(1) of the Criminal Code. The maximum penalty for this offence is life imprisonment and/or 7,500 penalty units. This offence was taken into account on s 16BA schedule referable to sequence 18. Sequence 19: Dealing with an instrument of crime, namely $2,863,870.00 between 14 November 2016 and 9 March 2017, contrary to s 400.3(1) of the Criminal Code. The offence is referred to as "tobacco transactions 1, 2 & 3". The maximum penalty for this offence is 25 years' imprisonment and/or 1,500 penalty units. The indicative sentence was seven years and six months' imprisonment.
One of the co-offenders, Mostafa Dib pleaded guilty to one count of conspiring to import a commercial quantity of MDMA being 594.43kgs of that drug. That was the same offence that the applicant was charged with in Sequence 1. Dib was sentenced by the same Judge, Judge Yehia SC, on 27 April 2020: R v Mostafa Dib [2020] NSWDC 145. Her Honour accorded a discount of 30% of which 25% was for the plea. He was sentenced to a non-parole period of 12 years' imprisonment with a balance of term of six years and two months. Her Honour noted that the starting point before the application of the 30% reduction was a sentence of 26 years' imprisonment.

[6]

The tobacco offences

Tobacco transactions 1, 2 and 3 were the subject of a rolled-up money laundering charge, dealing in the proceeds of crime greater than $1 million (Sequence 19). The sentencing judge noted this offence spanned a period of about 4 months and involved the applicant dealing in the purchase money of the three cigarette transactions, totalling over $2.8 million in cash.
Tobacco Transaction 1 involved the purchase of 200,000 packets of smuggled cigarettes for $1,200,000.00. In summary, her Honour noted the following facts: a. in October 2016, Undercover Operative Zane raised the prospect of doing business in smuggled cigarettes with Ryan Watsford, who quickly advised he had potential customers; b. on 10 November 2016, when the applicant was first introduced to UCO Zane by Watsford, the two men together with Fares Derbas agreed and arranged to purchase smuggled cigarettes from UCO Zane; c. the evidence did not demonstrate the applicant was involved in the supply, sale or distribution of smuggled tobacco prior to that time; d. on 14 November 2016, Watsford and the applicant confirmed they would take two loads of smuggled cigarettes of 200,000 packets and that the applicant would provide a $50,000 holding deposit; e. on 15 November 2016, the first handover of 100,000 cigarettes occurred which was not attended by the applicant, and UCO Zane was provided with $550,050 in cash; f. after the successful first handover of cigarettes, the applicant met with UCO Zane, Watsford and others and gave UCO Zane a further $600,000.
Tobacco Transaction 2 involved the purchase of 100,00 packets of cigarettes for $620,000. In summary, her Honour noted the following facts: a. between 17 and 21 November 2016, Watsford, UCO Zane and the applicant, independently and together, had multiple discussions in person and via encrypted Blackberries (UCO Zane's having been provided by the applicant) to discuss purchasing more smuggled cigarettes. The applicant confirmed he would pay UCO Zane $600,000 for 100,000 packets; b. Watsford, whilst with the applicant, exchanged Blackberry messages with UCO Zane, to advise a further $20,000 would be paid due to the change in time of the handover; c. the handover of the cigarettes was conducted in the presence of the applicant, at the request of UCO Zane and $620,000 in cash was paid; d. following that transaction the applicant and Watsford communicated with UCO Zane via Blackberry and in person to discuss purchasing further loads of smuggled cigarettes.
Tobacco Transaction 3 involved the purchase of 190,000 packets of smuggled cigarettes for $796,820. In summary, her Honour noted: a. on 8 March 2017, the applicant and UCO Zane met and discussed a further attempt at the sale of smuggled cigarettes, following a failed sale the previous day by Watsford; b. on 9 March 2017, UCO Zane delivered 125,000 packets of cigarettes in a truck to the applicant's mother's house. That evening, UCO Zane returned to the house, collected the truck from the applicant and a bag of cash containing $644,300 (an amount of $42,000 having been deducted by the applicant for the money owed by UCO Zane to a person know as EF for the supply of MDMA). c. the applicant discussed with UCO Zane that he had two contacts to sell smuggled tobacco products and expressed a willingness to progress the importation of smuggled tobacco from Dubai.
Tobacco Transaction 4 involved the importation of 900,000 packets of smuggled tobacco from Dubai, using "the door" offered by UCO Zane. (The "door" is a person or methodology that is able to facilitate the importation of goods into Australia without them being detected by Australian law enforcement.) The applicant dealt with $1,800,000 for this purpose (Sequence 12). The sentencing judge noted the applicant borrowed money to assist in the financing and directed a number of associates to assist financing the enterprise. Sequence 13 and 14 concerned the smuggling of the tobacco associated with the dealing with the $1,800,000.
The final tobacco transaction offence, described as the future tobacco transaction, involved the applicant providing UCO Zane with $2,224,500 cash to facilitate a further importation of smuggled tobacco (Sequence 15). The applicant arranged with Derbas to have approximately $2.25 million available for that purpose.
In terms of the applicant's role, her Honour separately identified what the applicant did in relation to tobacco transactions 1, 2 and 3, transaction 4 and the future tobacco transaction, finding that, following the failed transaction on 7 March 2017 involving Watsford, the applicant stepped up his "hands on" involvement. The applicant was found to have a senior role in each tobacco transaction offence, more so than Watsford or Derbas, over whom he exercised authority. He was personally invested and obtained a substantial financial benefit, identified as being $6,750,000 (minus costs).

[8]

Syndicate one transaction/MDMA Dib conspiracy

The MDMA Dib conspiracy ultimately involved the attempted importation of 594.43kg of pure MDMA, the relevant wholesale value being between $29.5 million and $35.1 million (Sequence 1).
The sentencing judge found that: a. it was during the course of Tobacco Transaction 1 that UCO Zane first raised with Watsford (initially in the absence of the applicant) the possibility of large quantities of illicit substances being imported through the use of the door; b. once raised, the applicant expressed an interest in the possibility and a willingness to engage in discussions about the potential importation of border controlled drugs, specifically offering to ask 'them' if they can organise a container and talking of having access to drugs in Lebanon; c. in November 2016, the applicant and Watsford introduced UCO Kane to Dib and Jehad Jodeh. Discussions commenced about the importation of pseudoephedrine from Lebanon. These discussions were "uncharged conduct". This conduct did not increase the objective seriousness of the conspiracy, but established that the applicant's involvement was not an aberration or isolated incident and was evidence of the willingness of the applicant to engage in drug related activities; d. in February 2017, through Dib's contact Mr Arif, living in Dubai, an alternative source of drugs was identified in the Netherlands. The proposed importation initially involved 180kgs of MDMA, to be purchased by UCO Zane. However, the drug commodities and amounts to be sent by Dib's overseas associates evolved; e. it is more likely that the increase in the quantity of MDMA was the result of Dib's and Arif's desire to take advantage of the door service, although UCO Zane was not completely passive.
The sentencing judge, in the course of summarising the relevant facts relating to the MDMA Dib conspiracy, considered, in the context of the applicant's role, the contested issue of whether the applicant was a willing and enthusiastic participant in this conspiracy. The sentencing judge identified numerous statements and actions of the applicant that demonstrated that the applicant was, in fact, a willing participant in the MDMA conspiracy. The statements and actions of the applicant relied on were summarised by the sentencing judge at paragraph [186] of her Remarks on Sentence (ROS).
The sentencing judge also summarised the overt acts of the applicant in furtherance of the conspiracy at paragraph [199] of her ROS.
As regards the applicant's role the sentencing judge concluded that: a. The applicant was not a principal, rather UCO Zane was the principal of the Sydney syndicate and Arif was the principal in the overseas syndicates; b. The applicant was a trusted and respected participant; c. His role extended beyond merely making introductions; d. He demonstrated autonomy and a decision-making role; e. His participation guaranteed the enterprise would run smoothly, as he vouched for UCO Zane and ensured there was no risk of UCO Zane being ripped off; f. His role was not comparable to that of Watsford, as his involvement was more extensive and included introducing UCO Zane to Dib; g. He was personally invested in the importations and/or stood to make significant profits from them; h. His role was slightly higher than that of Dib; i. Whilst crucial decisions about pricing and logistics were made by Arif and UCO Zane, the applicant was consulted and included in some of those communications.

[9]

Syndicate two transactions/The Elmir conspiracy

The Elmir conspiracy ultimately involved two separate drug transactions: a. The first transaction involved 392.95kg of pure MDMA, the wholesale value of which was between $50.23 million and $251.1 million and 15.77kg of pure cocaine with a wholesale value of between $3.7 million and $5.6 million; b. The second transaction involved 498kg of MDMA, 116kg of cocaine and 15kg of methamphetamine. (together Sequence 18)
The sentencing judge found that the Elmir conspiracy overlapped with the MDMA/Dib conspiracy. The applicant suggested to Zane on 22 March 2017, whilst the MDMA Dib conspiracy was on foot, that he also deal with Elmir.
For the syndicate two drug transaction, the sentencing judge noted that the liability of the applicant for the second transaction was contested. In relation to this issue, the sentencing judge concluded that: a. the applicant introduced UCO Zane to Elmir and encouraged him to use Elmir, rather than Dib and that this was not for the purpose of one transaction; b. there was an agreement between UCO Zane, Elmir and the applicant to import the drugs the subject of the second transaction; c. the applicant's involvement in the second transaction was limited and was significantly less than the role he performed in the MDMA Dib conspiracy and transaction one of the Elmir conspiracy.
The sentencing judge, in the course of summarising the relevant facts relating to the Elmir conspiracy, again carefully considered, in the context of the applicant's role, the contested issue of whether the applicant was a willing and enthusiastic participant in this conspiracy. The actions and statement of the applicant that established his willingness to be involved included: a. on 22 March 2017, it was the applicant who introduced the possibility of UCO Zane doing business with Elmir, a person who could source drugs from all over the world, without any prompting from Zane; b. on 24 March 2017, in messages with Elmir, confirming the commission would be 20% to get the ball rolling; c. on 6 April 2017, telling Zane, "We're gonna make 20% on everything"; d. at his meeting with Zane in Dubai on 15 June 2017, discussing future importations with Zane.
In terms of acts performed by the applicant in furtherance of the syndicate two drug transaction, the sentencing judge summarised his overt acts at paragraph [204] of her ROS; a. introducing UCO Zane to Elmir as a person who could source drugs all over the world; b. travelling to Dubai and facilitating an in-person introduction; c. attending meetings in Dubai on 10 and 13 May with UCO Zane and Elmir; d. communicating with Elmir about the timing of the shipment.
As regards the applicant's role, the sentencing judge concluded that, similar to the MDMA Dib conspiracy: a. the applicant was not a principal, rather UCO Zane was the principal of the Sydney syndicate and Elmir was the principal in the overseas syndicates; b. the applicant was a trusted and respected participant; c. his role extended beyond merely making the introduction to Elmir; d. His participation guaranteed the enterprise would run smoothly, as he vouched for UCO Zane and ensured there was no risk of Zane being ripped off; e. whilst the crucial decisions about pricing and logistics were made by Elmir and UCO Zane, the applicant was consulted and included in some communications

[15]

Submissions

The applicant submitted that the sentencing judge created a dichotomy between coercive and non-coercive pressure or encouragement, and resolved that dichotomy adversely to the applicant. In doing so, the sentencing judge neglected to identify how the tactics employed by UCO Zane were relevant to the sentencing exercise or, in the application of sentencing principle.
The applicant submitted that the absence of "threatening" behaviour on the part of the police did not render other persuasive tactics of little or insubstantial application to the sentencing exercise. That was because inducements of the kind that were in play were more psychologically nuanced than force or coercion, but were no less effective. The applicant relied on what was said in Haval Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197, and submitted that in that case it was held that the manner in which the involvement of the police contributed to the offending included, without qualitative distinction: pressure, coercion, encouragement, or inducement. The applicant submitted that the Court decided in that case that the issue was the extent to which those matters contributed to the offending.
The applicant submitted that, where her Honour had found that she was satisfied that police inducement was material, it was wrong to fail to give effect to those findings, by significantly reducing culpability.
The applicant submitted that it was erroneous for the sentencing judge not to say how specific and general deterrence were to be ameliorated in what her Honour accepted were the rare circumstances of this case.
The applicant submitted that the sentencing judge ought to have found that specific deterrence was not of great weight. This was because, given her Honour's findings that the applicant was not, before his introduction to UCO Zane, importing nor inclined to agree to import drugs, the community did not need to be protected from him, and he did not need to be rehabilitated because he was unlikely to repeat offending of this type. The applicant submitted that he stood to be punished for having been corrupted by the authorities, and the sentence did not need to deter him from being similarly corrupted in the future.
The applicant submitted that general deterrence did not loom large in circumstances where it was generally implausible that persons otherwise disinclined to criminality might come to calculate the risks of seizing the opportunity of a guaranteed "door" offered, without any need for financial contribution by persons equipped to deal in container loads of narcotics. In that way, the applicant submitted that the commercial unreality of the police inducement was relevant not only to an evaluation of the applicant's real disposition to criminality of this kind, but also to the application of general deterrence.
The applicant submitted that the conduct of the police operation was not a passive intelligence gathering exercise. Rather, it encouraged the applicant's involvement by presenting him with the opportunity to capitalise in ways suggestive of commercial unreality. The applicant submitted that the demonstrable objective of police encouragement in the present case was to groom the applicant with tobacco profit, normalise such an arrangement, and in so doing incentivise enlarging the business to encompass drugs. The relevance of the applicant being a "willing participant" in that enlargement was to be assessed in that context.
The applicant submitted that the finding by the sentencing judge that the applicant's culpability was diminished because of the involvement of Zane, should have led to a much lower sentence, particularly when the applicant's sentence is compared to that accorded to Mostafa Dib.
The applicant submitted that, by his plea, he was throwing away a significant matter that went to a defence of the charges in any event, when regard was had to s 15GI(2)(f) of the Crimes Act 1914 (Cth), and to what was said in Ridgeway v The Queen (1995) 184 CLR 19 at 91-92; [1995] HCA 66.
The Crown submitted that in the application of the principles from Haval Kada and R v Taouk (1992) 65 A Crim R 387, there were two questions or aspects of the statement of principle. The first was the question of causation. The second was the question of whether, in all the circumstances, there ought to be a diminishing of the moral culpability of the offender for those reasons. The Crown submitted that the approach of the applicant wrongly elided the two issues, so that where the question of causation was found in favour of the applicant there must necessarily be a substantial diminishing of culpability.
The Crown submitted that the sentencing judge correctly identified and applied the test enunciated by Badgery-Parker J in Taouk.
The Crown submitted that the sentencing judge did not create an erroneous dichotomy between coercive and non-coercive behaviour. Rather, the lack of coercion was only one of the factors to which the sentencing judge had regard.
The Crown submitted that the applicant was a willing, enthusiastic and active participant in five tobacco transactions and two drug conspiracies, and that was the relevant factor to be taken into account in determining where the involvement of UCO Zane placed the applicant's offending along the spectrum of culpability. The Crown submitted that the sentencing judge gave adequate weight to the relevance of police involvement.
The Crown submitted that an assertion that too much or too little weight was given to a particular sentencing factor does not raise an identifiable, specific error of fact, law or principle. The question of weight is within the discretion of the sentencing judge. In that way, ground 2 does not identify error.
The Crown submitted that the sentencing judge noted that both specific and general deterrence were important sentencing considerations in the case having regard to the criminality and the duration over which the applicant had engaged in it. The Crown submitted that it could not be supposed that in assessing the applicant's culpability, the sentencing judge failed to have regard to those matters. Such an approach failed to have regard to the ROS as a whole.
The Crown submitted that the fact that the opportunity for the drug conspiracies was an artifice instigated by UCO Zane did not detract from the need for general deterrence. That was because likeminded persons might be said to be persons in the position of the applicant, namely, persons engaged in other extensive criminality who attempted to pursue large scale drug importations for the prospect of substantial financial reward, and who enthusiastically grasped such an opportunity.

[16]

Consideration

In Taouk, Badgery-Parker J (with whom Clark JA and Abadee J agreed) said at 404: … [W]hen it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have done so, and whether in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished his culpability.
The sentencing judge made the following significant findings about the role of UCO Zane and the involvement of the applicant in the drug transactions: [236] The first matter worth noting is that, unlike many cases involving covert police operations, here, the undercover operative was pivotal or instrumental in the offending conduct from the very outset. There is no evidence that this offender was engaged in, or contemplated, dealing in smuggled tobacco or agreeing to import large quantities of border controlled drugs prior to Zane's involvement. [237] Zane presented the opportunity for this offending conduct to take place by introducing the notion of a door service that guaranteed the importation of illicit substances into the country without detection. This is not a case where the agreement to import large quantities of border controlled drugs was accommodated within the offender's existing drug-related operation or supply lines. There is simply no evidence that the offender was involved in the smuggling of tobacco or drug-related activity of any kind prior to being introduced to Zane. [238] Zane dealt directly with the offender. Indeed, it is open to conclude that the two men developed a friendship and trusting relationship (genuinely held on the part of the offender). [239] On the other hand, once the opportunity was presented by Zane, the offender wholeheartedly embraced the tobacco transactions. He also embraced and was a willing (as opposed to reluctant) participant in the drug conspiracies. He engaged in the offending for substantial profit. [240] Zane presented the opportunity to conduct these potentially lucrative criminal enterprises. Was there a real possibility that but for the assistance, encouragement or enticement by police he would not have committed the crime? Would the offender have engaged in the offending conduct without the opportunity presented by Zane? The answer to that question must be no because it was the guarantee of the door service that precipitated reaching out to the overseas syndicates who could source the border controlled drugs. [241] In the circumstances of this case, having regard to the particular interplay between the involvement of Zane, the extent of the undercover operation and the offender's conflicted position about the drug importations, I am persuaded that the offender's culpability is diminished. I make this finding because there is no evidence to suggest that the offender was contemplating or engaging in drug-related activity prior to Zane presenting that opportunity by guaranteeing a method of importation that would not attract law enforcement attention. It is partly for this reason that I am not persuaded that the offending conduct falls into the highest order. [242] However, the extent of that diminution is not substantial because, although there was a degree of encouragement and perhaps enticement on Zane's part, no coercion or pressure was applied. The offender was not a reluctant or unwilling participant. (emphasis in original)
Grounds 1 and 2 effectively challenge the sentencing judge's assessment of the applicant's culpability. The assessment of the culpability of an offender is, like the assessment of the objective seriousness of an offence, the responsibility of the sentencing judge. It is necessary to point to a House v The King error to disturb such an assessment.
The applicant seeks to identify specific error in terms of what appears at [242] of the ROS, by asserting that the sentencing judge created a dichotomy between coercive and non-coercive behaviour, and asserting that the conclusion of a diminution that was not substantial derives from the finding of non-coercive behaviour.
The difficulty of establishing error is the greater when assessment of culpability is the issue, because the assessment does not result in an outcome that can be readily scrutinised. Assessment of culpability is essentially part of the instinctive synthesis of sentencing. Culpability is not assessed on any scale as objective seriousness might be. A challenge to the assessment of culpability could only direct attention to the ultimate sentence itself, unless specific error is identified.
This point seems to have been accepted by Senior Counsel before the sentencing judge (not present counsel) who said: All of that comes to a landing in relation to an allowance in favour of our client, not insubstantial but not lending itself obviously to any arithmetic approach under the rubric of a reduced criminality or culpability by reason of the obvious question that arises with this man, in these circumstances, have behaved as he did without the active and organising and encouraging role of the undercover operative. (emphasis added)
The problem for the applicant in this regard is made clear by the terms of ground 2 which can only be a challenge to the weight given to the issue of the applicant's culpability. This Court has said repeatedly that there are inherent problems in such a ground succeeding: Stephens v R [2009] NSWCCA 240 at [16] to [18]; Majid v R [2010] NSWCCA 121 at [40]; Morgan v R [2017] NSWCCA 269 at [70].
The sentencing judge, in a section of her ROS headed "Was the offender a willing and enthusiastic (as opposed to reluctant) participant in the conspiracies to import drugs?", said this: [175] There is no issue that the offender embraced the tobacco enterprise for the purpose of obtaining a significant financial benefit. There is an issue, however, as to what extent he embraced the conspiracies to import border controlled drugs and whether, in truth, he was a willing or enthusiastic participant or whether his involvement was motivated by his indebtedness to Zane, who in turn manipulated and pressured the offender to participate in the drug conspiracies. [176] A chronology … sets out the relevant dates and events. It is not necessary to reproduce that 16-page document in the body of this judgment. In summary, between June and November 2016, Watsford and Zane conducted discussions in relation to money laundering and smuggled tobacco. [177] On 10 November 2016, Watsford introduced Zane to the offender, the purpose of which was to bring the offender into the tobacco enterprise already forged. The tobacco transactions continued over the course of the following 8 months. It is clear that the offender was a willing and enthusiastic participant in the tobacco transactions and that he was motivated by desire to make a financial gain. [178] On 14 November 2016, in a conversation between Zane and Watsford, Zane raised the subject of using the "door" to guarantee "anything". I am satisfied that during that conversation it was Zane who introduced the possibility of using the door service to import drugs. Zane also raised the possibility of importing large quantities of drugs because it wasn't worth the risk to bring in "five or ten kilos". [179] The offender then joined the meeting and asked Zane "do you want me to ask them if they can organise a container?" The offender also referred to having access to drugs in Lebanon. The evidence does not establish that he did in fact have access to drugs in Lebanon but the conversation is one example of the offender's willingness to engage in discussions about the importation of border controlled drugs. [180] On 18 November 2016, Zane suggested to the offender that they enter into a partnership and "bring stuff in". His suggestion was predicated on his understanding that the offender had contacts or connections to source the drugs and that Zane could provide a guaranteed "door" to bring the drugs into the country. [181] I am satisfied that during this conversation Zane was encouraging the idea of using the "door" to import large quantities of border controlled drugs. He suggested the partnership; he discouraged reliance on the cigarettes alone and suggested to the offender that he could assist with financing - "I can cover it for you, I can cover it". [182] But the offender, on 18 November 2016, embraced the opportunity presented by Zane by immediately suggesting he would need to bring in his "other partner" (a reference to Dib) for the purpose of discussing further the proposed importation of border controlled drugs. True it is that the offender expressed his gratitude to Zane for providing the opportunity to make money from the smuggled tobacco, but I am not persuaded that the offender embraced the opportunity presented by Zane simply because he felt indebted to him. This is simply not borne out by his subsequent representations and actions. He did not simply introduce Zane to Dib and have nothing further to do with the arrangements and negotiations [183] There were occasions when the offender expressed a disinterest in the drug transactions. Examples of those representations include that on 27 November he told Zane that he liked the cigarettes but as to the drugs, Zane and Watsford could "go halves". That apparent expression of disinterest was precipitated by the offender telling Zane that he had told Dib that the fee was 20% of the amount to be imported and that after the door fee was paid Zane and the offender could split what was left over of the commission. [184] On 5 January 2017, the offender said that he didn't want anything to do with the importation of the drugs and he only wanted to be involved in the purchase of smuggled cigarettes. [185] On 14 March 2017, he conveyed that he didn't want anything to do with the importation of drugs and expressed some frustration about having to fly over to the Netherlands in connection with the importation. He repeated that he wanted to focus on the cigarettes and that after the syndicate one transaction he was staying out of it. [186] However, on other occasions, by both words and deeds, the offender demonstrated that he was a willing participant in the drug conspiracies. I am not persuaded that he was an unwilling or reluctant participant, notwithstanding that on occasion he expressed a disinterest in the drug importations. Nor am I persuaded that he was a "naïve" participant. I am satisfied that the prosecution has established that the offender was a willing participant in the drug importations, motivated by the fact that he was to obtain a significant portion of the drugs on each occasion. I make this finding for the following reasons: (1) On 18 November the offender introduced Dib to Zane and during a meeting on that date the three men walked away from the cafe to discuss the possibility of importing illicit substances from Lebanon and other places; (2) In March 2017 the offender agreed that he would contribute $25,000 to cover the costs of everything Zane had to organise. I am satisfied that this was a contribution to the door fee in respect of the importation of drugs because this arrangement included Dib contributing $25,000 to the costs. Dib was only involved in the syndicate one transaction. The offender also stated his willingness to contribute a further $50,000 for the door. (3) On 8 March 2017 the offender asked Zane whether he would be interested in purchasing MDMA from a third party, EF, and Zane agreed. Not only was the offender a willing participant in the syndicate one transaction, he also willingly aided and abetted, counselled or procured the trafficking of the commercial quantity of MDMA; (4) On 14 March 2017, the offender said of Dib that he had his connections but that the offender was going to get his own connections and put his "feelers out". (5) On the same date, although the offender expressed a desire to focus on the cigarettes only, he engaged in discussions with Zane and Dib about the importation of MDMA, confirming that they did not want the people in the Netherlands to know anything about what company Zane used because they were concerned that the Netherlands syndicate would try to piggy back on the container; (6) The offender confirmed that he would attend the Netherlands and be Dib's "eyes and ears over there". (7) During the conversation about the cost of the MDMA in respect of the syndicate one conspiracy, the offender said to Dib: "if he can get more, let me know…cos if we're gonna do it, fuck it, might as well put more on". (8) On 22 March 2017, while in the Netherlands, the offender again expressed a disinterest in the drugs and a focus on the cigarettes. However in the same conversation the offender suggested that they offer Zane's door service to another supplier, Elmir, a person who could source drugs from all over the world and charge 20% of the total amounts to be imported. On this occasion the offender was able to provide Elmir's Blackberry handle to Zane. The offender also suggested that they tell Elmir that they would buy whatever they wanted and put it on the same container. (9) On 20 May the offender sent a message to Zane stating that he no longer wished to be involved in the drug importation and would not attend the handover. However one hour later he sent a further message explaining that he "freaked out for a moment", telling Zane that he wouldn't let him down and that he would be there to take care of everything. (10) On 26 May 2017 the offender handed over $1,120,000 cash to Dib on behalf of Zane. (11) The offender's share of the drugs in the syndicate one conspiracy was 30 kg of MDMA +20 kg for the door fee; (12) On 15 June 2017 the offender and Zane met in Dubai during which time they discussed the progress of the importation and potential future importations with Elmir, Arif and other associates; (13) On the same day the offender had a conversation with Zane about doing business with someone other than Dib's group, during which he said: "we're not petty cunts. We're going to make millions….fucking million a week. We're talking about tens of millions, even making hundreds of millions of dollars". I am satisfied that this was a reference to making profits out of the drug importations as opposed to the smuggled tobacco. While the offender's expectations about the extent of the profits may have been exaggerated, his representations clearly reflect that he was enthusiastic about obtaining a significant financial gain from the importation of border controlled drugs; (14) On 24 March 2017 in the course of exchanged messages between the offender and Elmir the offender confirmed the commission would be 20% to get the "ball rolling". In the course of the messages to Zane, the offender added: "I am trying to get this done for us so what's the most he can put on with us"; (15) On 6 April 2017 the offender told Zane: "We're gonna make 20% on everything". [187] I am satisfied that the evidence establishes that Zane provided the opportunity to import large quantities of border controlled drugs and encouraged the use of the "door" service for such importation. I am also satisfied that Zane, on a number of occasions, suggested that larger quantities be imported so as to take full advantage of the door service. However, the examples referred to above demonstrate, clearly in my view, that the offender was a willing participant in the conspiracies to import substantial quantities of drugs into Australia. Although on occasion he expressed a preference for the smuggled tobacco transactions, he embraced the suggestion that the door service be used to import border controlled drugs; he made the introductions necessary to facilitate each drug conspiracy; his purported cut of the drugs was significant; and he participated in not one but two conspiracies to import substantial quantities of border controlled drugs into the country.
Elsewhere in her ROS, the sentencing judge said this: [210] In terms of the offender's role, I find that in respect of each conspiracy, he was a trusted and willing participant who engaged in the criminality expecting significant financial gain. … ... [229] I do not accept the submission that, without assistance, the offender would have made progress in carrying out the illicit drug enterprise. There is no evidence that the offender was engaged in, or had contemplated dealing in, smuggled tobacco or importing border controlled drugs prior to Zane presenting the opportunity to do so through the door service. This is not a case, for instance, where the offender was engaging in drug-related activity with an intention to import border controlled substances into Australia before the involvement of the undercover operative.
It was in the light of those findings that the sentencing judge reached her conclusions as set out at [44] above.
Two things emerge from those findings. First, it is clear that the sentencing judge gave full consideration to the issue of the applicant's culpability in the light of the way that he came to be involved in the drug transactions. The conclusion that his culpability was diminished was all that needed to be said. The diminution cannot be expressed as a proportion or a percentage, nor otherwise quantified. The diminution of culpability simply falls into the instinctive synthesis.
The only basis put forward for demonstrating that the sentencing judge had "erred in the evaluation of the significance" of her finding that the applicant would not have committed the offences but for UCO Zane, was the assertion, in oral submissions, that the effect given to the finding was de minimis, based on the difference between the notional starting points of the applicant's indicative sentence for Sequence 1 and the sentence given to Dib in relation to the same charge. That assertion is not supported by the careful assessment the sentencing judge made of the issue of parity with Dib both in her ROS in respect of Dib and in the ROS in respect of the applicant.
In the latter ROS, the sentencing judge said this: [270] Mostafa Dib was sentenced in respect of one offence relating to the syndicate one transaction. Following an application of 30% reduction in sentence, I imposed a term of imprisonment of 18 years and 2 months with a non-parole period of 12 years imprisonment. The offender and Dib were personally invested in the syndicate one importation and stood to make significant profits from it. Both performed crucial physical acts in furtherance of the conspiracy and both were trusted to make decisions in respect of it. [271] This offender undertook less "hands-on" tasks than Dib. However, I find that he played a slightly more serious role than Dib because his involvement operated to make the various pieces fit together and assured that the drug enterprises ran smoothly by reducing the risk that they would be "ripped off". He guaranteed trust between the two sides. That his position was slightly higher than that of Dib is also evidenced by the fact that he suggested to Zane an alternative source for the drugs (namely Elmir) when tensions arose in respect of the syndicate one transaction.
In the ROS regarding Dib, the sentencing judge said: [115] …, I am not persuaded that the offender was a high level organiser or "lynchpin" in the enterprise. Although he had some autonomy, as evidenced by seeking out someone to purchase the 50kg of MDMA that was needed for Arif's syndicate to put on a further substantial quantity of MDMA, the ultimate decision-making was left to those higher up in the hierarchy of the respective syndicates. … [118] Furthermore, while the offender played a crucial role in connecting the two groups, I am not satisfied beyond reasonable doubt that he was indispensable, particularly as the conspiracy progressed. That this is so is evidenced by the fact that Zane travelled to the Netherlands with Ibrahim to collect the sample. This offender's presence was not required. … [121] … (2) Ibrahim played a significant role in the Sydney-based group, second to Zane. I am not persuaded that this offender's role was equal to that of Ibrahim. Although each man performed crucial physical acts in furtherance of the conspiracy and both were trusted participants, I am not satisfied that this offender held the same decision-making role as Ibrahim did. Ibrahim's actions included (although were not limited to) introducing the offender to Zane; advising and re-assuring Zane; being involved in the negotiations; suggesting an alternative source (Steven Elmir); attending the Netherlands with Zane to pick up the sample of MDMA; and being trusted to hold on to the cash payment for the MDMA. In addition, while the offender appears to have been willing to go along with the suggestion that the amount be increased, it was Mr Ibrahim who, on 14 March 2017, said to the offender: "if you can get more, let me know … 'Cos if we are gonna do it, fuck it, might as well put more on".
There were other subjective matters distinguishing the applicant and Dib, which are dealt with below when discussing ground 4. The combination of these matters demonstrates that no inference can be drawn that the diminution in culpability was de minimis based on a comparison of the notional starting points.
There is nothing else to suggest that the sentencing judge failed to give effect to her findings "by significantly reducing culpability". A reading of her Honour's ROS would not, in any event, suggest that the applicant's culpability should have been significantly reduced. Her Honour's conclusion that the applicant was neither a reluctant nor an unwilling participant, following her analysis of his involvement, led only to the finding that the offending conduct did not fall "into the highest order".
The second matter to emerge from her Honour's analysis of the applicant's involvement, is that no basis is shown for a conclusion that her Honour created a dichotomy between coercive and non-coercive behaviour on the part of UCO Zane. Her Honour, immediately before dealing with the impact of police involvement on the culpability of the applicant, had referred to the "valuable assistance" provided by what was said in Haval Kada.
In Haval Kada the Victorian Court of Appeal, having examined the case law in relation to the involvement of a covert police operative, including R v Taouk and R v N [1999] NSWCCA 187; (1999) 106 A Crim R 493 said at [72]: [72] The principles that emerge from the above authorities which are relevant to the present applications may be summarised as follows: (a) The involvement of police in the commission of a trafficking offence is a relevant sentencing consideration. (b) The weight to be given to police involvement will depend on the circumstances of each case. (c) The fact that there is a real possibility that the specific offending would not have occurred but for the involvement of the police may carry some weight. As this causation element will be present in many cases, considered in isolation, it will not necessarily be an important sentencing consideration. (d) The primary focus will usually be on how the circumstances of the police involvement in a particular case bear upon the culpability of the offender. Police involvement does not have a predetermined or uniform impact on culpability. Rather, there is a spectrum along which that impact is to be assessed, ranging from very little impact to substantial impact. (e) Factors that affect the impact of police involvement on culpability include the following: (i) The manner in which the involvement of the police contributed to the offending, including the nature and degree of any pressure or coercion applied, or encouragement or inducement offered, by the police to secure the commission of the offence. (ii) The extent to which the involvement of the police contributed to the offending. (iii) Whether the police dealt with the offender directly or through an intermediary. Ordinarily, the more remote the police involvement - including any pressure, coercion, encouragement or inducement by them - is to the offender, the less weight it will have on the sentencing synthesis. (iv) The readiness with which the offender responded to any requests for drugs by the police. The involvement of the police will carry greater weight if the will of the offender is overborne by them, compared to a situation where the offender regards the requests for drugs from the police as a welcome expansion to his or her trafficking operation. Conversely, police involvement will carry less weight if the offender, rather than the police, instigated the relevant trafficking transaction. (v) Whether the police became involved at a time when the offender was already trafficking in the relevant drug and, if so, the scale of his or her operation at that time and the scale of operation resulting from the police involvement. The involvement of the police will carry less weight if their requests for a drug can be accommodated within the offender's existing supply lines, compared to a situation where those requests can only be accommodated by material changes to the offender's scale of operation and supply lines. (f) The fact that no actual harm arises because the involvement of the police prevents the drugs from being distributed to the community is a relevant consideration. However, ordinarily, this fact will be accorded little, if any, weight as a mitigating circumstance. This is because it would be anomalous for the offender to receive a more favourable sentencing disposition due to a circumstance which, from his or her perspective, is fortuitous, namely, the involvement of the police. (emphasis added)
It is apparent from the principles set out in that case that the Victorian Court of Appeal did not consider that there was any dichotomy between coercive behaviour on the one hand, and encouragement or inducement on the other hand. Rather, there was a "spectrum along which that impact is to be assessed". When her Honour, an experienced criminal law judge, had referred to the principles from Haval Kada, before making reference to the issue of coercion, there is no basis for asserting that her Honour was adopting a different approach by creating the asserted dichotomy. Her Honour certainly did not say that, and there is nothing from which to draw an inference to that effect.
Mr Game of Senior Counsel for the applicant submitted that what the cases were looking for was a sine qua non for the conduct. Here, he submitted, that had been found favourably to the applicant. He submitted that coercion or pressure would be an additional factor, but the authorities did not require pressure or coercion for the principle to apply. That may be accepted.
Nothing the sentencing judge said suggested that the principle relating to reduced culpability arising from police involvement only applied if coercion or pressure was applied. Her Honour's finding that culpability was diminished when no coercion or pressure was applied is testament to that. When pressed on where the error of principle was in her Honour's conclusion at [242], Mr Game identified the parity issue in relation to Dib (dealt with above) and submitted that the effect of her Honour's finding was that, unless an applicant could establish coercion or pressure, the reduction was de minimis. Her Honour does not say that; she said that the extent of the diminution was "not substantial". That finding was clearly open on the analysis her Honour carried out of the applicant's involvement and the relationship between him and UCO Zane.
A similar approach was taken in Director of Public Prosecutions (Vic) v Kumas [2021] VSCA 215 where the Victorian Court of Appeal said at [65]: … [A]s to the role of the covert operative, it is clear that the operative instigated the initial offending and some of the later offending. There was no challenge to the judge's finding that, but for the operative's initial approach, MK would not have embarked on this course of dealings. But, as the Director submitted, MK quickly became an enthusiastic participant. As appears from the summary of transactions, he was active in offering to supply the covert operative with drugs and weapons. At no point was his will overborne, nor was he under any duress. On the contrary, the scale and duration of the dealings suggest that MK welcomed the opportunity to sell what he knew to be harmful and dangerous goods, in pursuit of his financial goal. Any moderation of moral culpability had therefore to be modest.
Grounds 1 and 2 should be rejected.
When the sentencing judge came to consider the matters of specific and general deterrence, her Honour said: [167] In determining the offender's role in each syndicate and thereby his role in the offences, a number of preliminary issues must be addressed. The first issue is whether the apparent meeting of the minds as between Zane and the offender constitute criminal acts? Are the conversations and arrangements as between the offender and Zane relevant to determining the extent of the offender's conspiratorial liability or are they relevant to motive and the application of specific deterrence? … [169] The offender submits that it is critical to appreciate that the apparent meeting of the minds (on any topic) as between Zane and the offender is not a criminal act. The Statement of Facts is replete with examples of arrangements forged between these two men. The offender submits that whilst these arrangements may be relevant to motive and the application of specific deterrence, they amount to no offence at all. … [243] In sentencing the offender for sequence 12, I take into account two further offences, and in imposing a sentence for sequence 18, I take into account a further offence, as contained on the s 16BA Schedule. These offences do not operate to increase the objective seriousness of the substantive offences. They are however relevant to assessing the weight to be afforded specific deterrence and retribution. Each offence on the Schedule is itself an objectively serious offence in which the offender played a crucial role. [244] General and specific deterrence and denunciation are important sentencing considerations in this case having regard to nature of the criminality and the duration over which the offender engaged in it. During a period of some months, the offender participated in not one but two conspiracies to import substantial quantities of border controlled drugs into the country. Condign punishment will be meted out to those who engage in such activity, not only to deter the individual offender, but also to deter other like-minded individuals. [245] The money laundering offences also constitute serious criminal activity. Money laundering is difficult to detect, investigate and prosecute. It is for this reason the general deterrence is a significant factor when sentencing for such offences.
Although the applicant's submissions were critical of the sentencing judge for not saying how matters of specific and general deterrence were ameliorated in the circumstances of this case, and although submissions were made that specific deterrence in particular was not of great weight, no submissions were made to the sentencing judge that deterrence in either form should not be considered significant. Indeed, the only submission made by the applicant concerning deterrence was made in the context of a submission that there was no criminal conspiracy between the applicant and Zane. The submission then said: Whilst these arrangements may be relevant to motive and the application of specific deterrence, they amount to no offence at all. This was noted by the sentencing judge at [169] of her ROS (above at [66]).
Notwithstanding that the Crown's written submissions before the sentencing judge made a number of references to the significance of both specific (personal) deterrence and general deterrence, the applicant said nothing about these matters either in written submissions in reply, or in oral submissions.
Ground 3 is an attempt to raise for the first time on appeal, contrary to what was said in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79] to [81], an issue that was not before the sentencing judge.
Mr Game SC accepted, in any event, that general deterrence was not to be discounted altogether, and the submission quoted above at [67] similarly accepted that specific deterrence is also a relevant factor where there is police involvement. Her Honour appropriately dealt with both specific and general deterrence. In the absence of there being raised before the sentencing judge an issue of how police involvement in the offending bore upon the consideration of specific and general deterrence, no error is shown.
Ground 3 should be dismissed.

[19]

Consideration

In Wan v R [2017] NSWCCA 261 Beech-Jones J (Payne JA and Fagan J agreeing) said: [39] The reference in this ground of appeal to a "justifiable sense of grievance" invokes the discussion of the parity principle in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610 (per Gibbs CJ), at 613 (per Mason J) and at 623 (per Dawson J, "Lowe"). The parity principle holds that there should not be a "marked disparity" between the sentences imposed on co-offenders such as to give rise to "a justifiable sense of grievance" in one of them (Lowe at 610 per Gibbs CJ, with whom Wilson J agreed at 616 and at 612 to 613 per Mason J and at 623 per Dawson J). The parity principle has its foundation in the obligation of the Courts to afford "equal justice" (Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28] per French CJ, Crennan and Kiefel JJ, "Green"). [40] Two aspects of the parity principle are of relevance to this application. First, the principle is not just concerned with identical outcomes in cases that "are relevantly identical". It also seeks "different outcomes in cases that are different in some relevant respect" (Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at 608 per Gaudron, Gummow and Hayne JJ, "Wong"). Thus, in this case, the applicant accepts that his overall sentence was not materially different from that imposed on Choy but contends that his circumstances were relevantly different to those of Choy. [41] Second, the application of the parity principle is not excluded by the circumstance that participants in a criminal enterprise are charged with different offences. The application of the principle is governed "by considerations of substance rather than form" (Green at [30]). Nevertheless, the "greater the differences between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of a sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the [applicant]" (Green at [30]). These "practical difficulties" can be compounded in a case such as this where the two offenders are sentenced under two different statutory regimes, namely the Crimes Act 1914 in the case of Choy and the Sentencing Act in the case of the applicant. [42] In DS v R [2014] NSWCCA 267 at [39] the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted as follows: "The 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'. …"
Where the same judge sentences both offenders and gives detailed reasons for the sentences imposed on each offender, this Court will be cautious before determining that one of the offenders has a justifiable sense of grievance because of sentence outcomes: R v Swan [2006] NSWCCA 47 at [71]; Pavicevic v R [2010] ACTCA 25; R v Spizzerri [2001] VSCA 49 at [10]; Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 at [39]-[41]; Gill v R [2010] NSWCCA 236 at [58]; Lam v R [2014] NSWCCA 50 at [42].
In regard to subjective cases, the similarities between the offenders were their somewhat deprived childhoods, their early exposure to drugs and violence, their criminal histories and length of time spent in custody for prior offending, and that both had experienced hardship in custody. Her Honour found the prospects of their rehabilitation to be guarded, and that they were both likely to be institutionalised. Both had elderly parents with whom there would be difficulties having future contact. In both cases, specific deterrence was a relevant consideration.
In respect of differences, her Honour found that Dib was remorseful but she could not make such a finding for the applicant. In Dib's case evidence was put forward about the effect of Covid on his incarceration. There was no such evidence in the applicant's case, and the sentencing judge indicated during the sentencing hearing that she would not take account of it in the absence of evidence. The result was that the impact of Covid was taken into account for Dib as adding to the onerous conditions of custody. In addition, the sentencing judge took into account Dib's extra-curial punishment of having been tortured in Dubai.
As the ROS in each case shows, the sentencing judge carefully considered the roles of each of the offenders, and where each stood in the hierarchy. Whilst the applicant points to specific matters that he says should have been found or emphasised differently by the sentencing judge, all of the matters identified were carefully considered by her Honour.
The other matter relied upon by the applicant is the point raised by ground 5, namely that a discount of greater than 25% should have been given for the plea because the applicant gave up the argument based on s 15GI(2)(f) of the Crimes Act, and what was said in Ridgeway at 91-92. For the reasons given in rejecting ground 5, no basis is shown for suggesting that 25% was not the appropriate discount for the utilitarian value of the plea.
The ultimate difference between Dib's sentence and the indicative sentence for the applicant was small, when regard is had to the notional starting points, and is explicable by the different findings as to role, position in the hierarchy, and subjective matters and findings. The disparity is not gross, marked or glaring.
It may be accepted that error in an indicative sentence may reveal error in the aggregate sentence: PD v R [2012] NSWCCA 242 at [44]; Lee v R [2020] NSWCCA 244 at [32]. Further, there is no reason in principle why an indicative sentence may not be compared to an aggregate sentence if account is taken of the other sentences comprehended within the aggregate sentence: R v Clarke [2013] NSWCCA 260 at [68]. In the same way, an indicative sentence may be compared to an actual sentence for a single offence in the same terms: Smith (a pseudonym) v R [2022] NSWCCA 123 at [47]-[48].
However. the difficulty in the present matter is that the disparity is said to be between the sentence Dib received and an indicative sentence in respect of the applicant. Ultimately, all that can be challenged by an applicant who has received an aggregate sentence is that sentence, and not any indicative sentence: Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227]; BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537 at [252].
In a case such as the present, where the applicant was sentenced for five offences with three others on s 16BA schedules, the applicant has the added difficulty of demonstrating that the aggregate sentence has been affected by a disparity in one of the indicative sentences. That will be the more so where the difference in the sentences is not large, although that may only be an indication that the disparity was not gross, marked or glaring in the first place.
Ground 4 should be rejected.

[22]

Consideration

The Crown's submission that this issue was not raised before the sentencing judge should be accepted. The issue argued concerning the controlled operation related to whether there could be a conspiracy between the applicant and UCO Zane when UCO Zane never intended to import border-controlled drugs. The applicant's written submissions at the sentencing hearing relevantly said this: The significant benefit to the administration of justice is to be evaluated in the context of a Crown case which had some limitations in proof as to a meeting of the minds between the offender and Dib (syndicate one), and the offender and Elmir (syndicate two) in light of the offender's quixotic demeanour.
The legality of the operation was not put to the sentencing judge in the context of the plea, of its utilitarian value, or of the worth of the foregone argument.
The ground now raised would require this Court to make an assessment of the worth of the foregone argument, despite Senior Counsel for the applicant eschewing that course. As this Court said in Zreika, this Court is a court of error. No error was made by the sentencing judge when she was not asked to carry out the task now put forward.
Senior Counsel sought to suggest that the finding at paragraph [241] of the ROS, that the applicant's culpability was diminished because there was no evidence he was contemplating engaging in the importation of drugs until it was put to him by UCO Zane, could be used to justify a discount greater than 25%. I do not agree. The finding is concerned with the applicant's culpability, not with the utilitarian value of the discount or the worth of the foregone argument.
In any event, the distinction between the utilitarian value of a plea and a willingness to facilitate the course of justice must be borne in mind. In Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 Fullerton J said at [62] (Wilson and Ierace JJ agreeing): While I accept that in practical terms the factors which inform the sentencing considerations in ss 16A(2)(f) and (g) of the Crimes Act (Cth) might overlap, what must be borne in mind is that it is only in respect of the objective or utilitarian value of a plea of guilty that the Court will apply an arithmetical discount when sentencing for a Commonwealth offence, a discount which is largely, although not exclusively, informed by the timing of the plea. Where a sentencing court is persuaded that the timing of the plea itself reflects a willingness on the part of the offender to facilitate the course of justice, that finding should find expression in the reasons for sentence as one of the factors which informs the value of the plea without it attracting any additional or arithmetical sentencing discount. Importantly, however, where the Court does not make that finding, or where the Court is not otherwise satisfied that the evidence relied upon by an offender allows for a finding of a subjective willingness to facilitate the course of justice as a mitigating factor on the balance of probabilities, the objective or utilitarian value of the plea should not be diminished.
In the present case the sentencing judge accepted that, in addition to the utilitarian value of the plea, the plea represented a willingness to facilitate the course of justice because of the likely complexity of the trial. On the applicant's argument in support of this ground, although not made to the sentencing judge, one aspect of the trial's complexity was the issue of the legitimacy of the controlled operation with the implications that might have had for an application of s 138 of the Evidence Act 1995 (Cth). Any discount for facilitating the course of justice is not quantified. It is clear from what her Honour said at [3] and [4] of her ROS that it was a matter that she took that matter into account.
In the circumstances that this argument was not raised before the sentencing judge, no error is shown.
This ground should be rejected.

[23]

Submissions

The applicant submitted that an aggregate sentence of 30 years was excessive where there has been a reduction of 25% for guilty pleas on the indicative sentences, in circumstances where the appropriate penalty was to deter the applicant in order to protect the community and deter others. The applicant submitted that the critical sentencing purposes of deterrence, harm, rehabilitation and protection all pointed in a direction favourable to the applicant.
The applicant submitted that, taking into account the 25% discount on the indicative sentences, a notional starting point for the aggregate sentence should be seen as being 40 years. That was a manifestly excessive starting point for the offending. The applicant submitted that the notional accumulation in respect of the tobacco offences was too great when regard was had to the indicative sentences for the narcotics offences. The applicant submitted that the narcotics offences were not separate from the tobacco offences, so that the principle of totality ought to have produced a lesser sentence, with less notional accumulation.
The applicant submitted that the sentence should, in any event, be ameliorated by the circumstances of the applicant's being brought into the offending as a result of the police operation.
The Crown submitted that both specific and general deterrence were significant considerations in the offending.
The Crown submitted that there were five discrete and independent offences, together with three other offences on s 16BA schedules. Each of the offences involved separate criminality. The indicative sentences totalled 65 years and 6 months, whereas the aggregate sentence was 30 years. The Crown submitted that this could hardly be described as a substantial degree of accumulation. In any event, the sentencing judge was careful to address questions of accumulation and totality.
The Crown submitted that an aggregate sentence of 30 years does not fall outside the range of sentencing options reasonably available to the sentencing judge.

[24]

Consideration

The principles governing a consideration of manifest excess are well known. They have recently been summarised by Bell P (as his Honour then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42]. In relation to whether an aggregate sentence is manifestly excessive, Fullerton J (with whom McCallum JA and Walton J agreed) in Burke v R [2022] NSWCCA 6 said: [32] The principal focus for the determination of a ground of appeal alleging manifest excess in the appointment of an aggregate sentence is whether the sentence fairly reflects the totality of the criminality involved or, to put it another way, whether the aggregate sentence can be shown to be unreasonable and plainly unfair having regard to the totality of the criminality comprehended by the sentence, after taking into consideration all factors bearing upon the ultimate imposition of sentence. [33] Additionally, and equally as importantly, where an aggregate sentence is under challenge as manifestly excessive, and the Court's attention is directed to what is said to be the severity of the indicative sentences to make out that ground, the focus will not be on whether one or more of the indicative sentences is excessive per se, but whether the applicant has established that after principles of totality are applied the aggregate sentence is unreasonable or plainly unjust. It is only where the nomination of an indicative sentence or sentences suggests error in the appointment of the aggregate sentence that a ground of manifest excess may be made out. Where that argument has been successful, it is because the Court is satisfied that the relative severity of the individual sentences called for a greater degree of notional concurrency in the imposition of the aggregate sentence. In this case, as the sentencing judge made clear and in my view correctly, a degree of accumulation was called for in what she described as each "cluster" of robberies with notional concurrency between offences committed against different people at the same premises. (citations omitted; emphasis added)
A recent example of where that principle was applied to vary the aggregate sentence by reason of error in one of the indicative sentences is Stevenson v R [2022] NSWCCA 133 at [123]-[124].
In my opinion, the undiscounted indicative sentences for the narcotics offences (of 28 and 30 years) fall outside the range of reasonable sentences in the circumstances of the offending in this case. The sentencing judge found that there was no evidence that the applicant was contemplating or engaging in drug-related activity before the opportunity was presented to him by UCO Zane. That meant, on her Honour's findings, that the offending was not of the highest order, and the applicant's culpability was diminished.
A useful comparable case is Jomaa v R [2022] NSWCCA 112. The applicant pleaded guilty to attempting to import a commercial quantity of a border-controlled drug being 200 kg (154 kg pure weight) of MDMA said to be worth between $7.4 and $8.8 million wholesale. The applicant became involved after being contacted by a UCO. The applicant had a very senior and prominent role in the organisation, and played an essential role right through the operation. His involvement was not procured through threats, persistent importuning or by the offers of rewards and inducements. The UCO proposed the scheme with financial benefits for those involved. The applicant was not naïve, and involved himself expecting a significant financial return.
Like the present applicant, he seems to have had a difficult childhood including difficulties with education. He experienced difficulties in custody both in Australia and in Dubai where he was arrested.
At first instance he was sentenced, with a 25% discount for an early plea, to 21 years with a non-parole period of 14 years. The notional starting point was 28 years imprisonment. He was resentenced (by majority) to 18 years with a non-parole period of 12 years, with Hamill J of the view that a starting point of 28 years was manifestly excessive. This case provides assistance, particularly in relation to the appropriate sentences for sequences 1 and 2.
Although in the present case there were five separate offences, the offending was inter-related in terms of timing and the use of funds obtained from the tobacco offences to fund the narcotics importations. Even without a reduction of the indicative sentences for the narcotics offences, the notional accumulation of the tobacco offences on the narcotics offences seems to me to be plainly unreasonable.
Where the two longest indicative sentences fall outside the range for this offending, and where the notional accumulation is unreasonable, the aggregate sentence was plainly unjust.
Ground 6 should be upheld.

[25]

Resentence

No specific submissions were made by the parties with regard to resentence. The applicant simply sought a lesser penalty.
This Court's responsibility is to exercise the sentencing discretion independently, although it may rely on findings made by the sentencing judge if those findings are appropriate. The Crown has helpfully summarised the sentencing judge's principal findings.
I agree with her Honour's findings in relation to the following matters: (a) The applicant was a trusted and willing participant in the criminality expecting significant financial gain. His was a senior role in the tobacco transactions, and in the narcotics offences he played a significant role, higher than Dib and Watsford; (b) The objective seriousness of the drug conspiracies was high, but not of the highest order, having regard to the quantity of the drugs, the planning and organisation, the length of the conspiracies, and the co-ordination of the Sydney-based syndicate and the overseas syndicates; (c) He suffered a childhood of dislocation and poverty. He attended school only until year 8 and struggled with literacy. He had a poor employment record, and has spent a significant portion of his adult life in custody; (d) His criminal record entitles him to no leniency; (e) There was limited evidence of remorse; his prospects of rehabilitation were guarded and it was difficult to predict the prospects of reoffending; (f) Both specific and general deterrence were important considerations; and (g) A 25% discount was appropriate for the utilitarian value of the early plea.
The applicant submitted that, in the event that the Court came to resentence the applicant, the preferable course would be not to impose an aggregate sentence, but to sentence for each of the offences, by reason of s 19(2) of the Crimes Act, which provides: (2) Where: (a) a person is convicted of 2 or more federal offences at the same sitting; and (b) the person is sentenced to imprisonment for more than one of the offences; the court must, by order, direct when each sentence commences, but so that no sentence commences later than the end of the sentences the commencement of which has already been fixed or of the last to end of those sentences.
This Court determined in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 at [141]-[146] that s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the section which authorises aggregate sentences for multiple offences) applies to Commonwealth offences: and see also R v Delzotto [2022] NSWCCA 117 at [2], noting the reservations expressed by Brereton JA in Patel v R [20222] NSWCCA 3 at [71]-[74]. Whether a sentencing judge imposes separate sentences or an aggregate sentence is a matter for the judge's discretionary judgment: Beattie at [147].
By reason of the inter-relationship of the offences, both as to time, money and those involved, I consider that an aggregate sentence is appropriate.
In my opinion, the followings sentences should be indicated: (a) Sequence 1 - 18 years imprisonment (b) Sequence 18, taking into account Sequence 20 on a s 16BA Schedule - 19 years 6 months imprisonment (c) Sequence 19 - 7 years 6 months imprisonment (d) Sequence 12, taking into account Sequences 13 and 14 on a s 16BA Schedule - 8 years 6 months imprisonment (e) Sequence 15 - 6 years imprisonment
I propose an aggregate sentence of 25 years with a non-parole period of 15 years.

Ibrahim v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (27 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (42)

Cited By (8)