R v Ibrahim [2005] NSWCCA 43 | Case summary

THURSDAY 17 FEBRUARY 2005 REGINA v IBRAHIM IBRAHIM Judgment 1 BUDDIN J: The applicant seeks leave to appeal against the severity of sentences imposed upon him in the District Court following his pleas of guilty to two separate indictments. 2 The first indictment, to which pleas were entered on 8 July 2002, contained three counts. In respect of count 1, namely an offence of entering a building with intent to commit an indictable offence, namely assault, the applicant was sentenced to 2 years imprisonment with a non-parole period of 18 months with each term ordered to commence on 16 March 2004. In respect of count 2, an offence of intimidation with intent to cause fear of physical or mental harm, a fixed term of 12 months which was wholly concurrent with the sentence imposed in respect of count 1, was imposed. Count 3, an offence involving the unauthorised possession of a firearm, attracted a sentence of 2 years imprisonment with a non-parole period of 18 months. These terms were ordered to commence on 16 March 2005 and were accordingly partly cumulative upon the sentence imposed in respect of count 1. The sentences imposed for the offences in the first indictment produced an effective head sentence of 3 years imprisonment with an associated non-parole period of 2½ years. 3 The second indictment, to which the applicant pleaded guilty on 7 November 2003, contained three counts each alleging a supply of cannabis leaf. In respect of each of counts 1 and 2, the applicant was sentenced to a fixed term of 12 months to commence on 16 March 2005. These terms were thus wholly concurrent with, and subsumed within the sentence imposed in respect of count 3 of the first indictment. In relation to count 3 in the second indictment, a non-parole period of 15 months to commence on 16 September 2005 and to expire on 15 December 2007 was imposed. The balance of that term was set at 5 months which will expire on 15 May 2008. Accordingly, the total effective sentence which the applicant is serving is one of 4 years and 2 months (that is 50 months) and the associated non-parole period is 3 years and 9 months (that is 45 months). 4 The offence of entering a building with intent to commit an indictable offence attracts a maximum penalty of 7 years; the intimidation offence attracts a maximum penalty of 5 years; whilst the unauthorised possession of a firearm, as well as each of the supply offences, carries a maximum penalty of 10 years. 5 There were also two Form 1 documents which the applicant asked to be taken into account on sentence. One Form 1 document contained two offences, namely possession of a small quantity of cocaine as well as stealing from a dwelling, whilst the other contained a single offence of knowingly take part in the supply of amphetamine. It will be necessary to return to this issue because of the way in which the sentencing judge approached this aspect of the matter. 6 The facts relating to each of the matters to which the applicant pleaded guilty are not in dispute and may be shortly stated. The first set of offences arose from an incident which occurred at about 11 pm on 2 April 2001 when the applicant went with another man to the premises of the victim, Shaun Roney. They were able to gain access to the premises whilst the victim's flatmate, Dan Pietsch, was endeavouring to close the door having returned from work. They persuaded Mr Pietsch to let them into the house by telling him that they wished to speak with the victim. The victim was woken up and the applicant then demanded money from him. The applicant alleged that the money was to repay an outstanding debt. The victim denied owing the applicant money. He also indicated when the applicant began searching through his belongings, that he did not have any money in the house. Further discussion then took place as a result of which the victim promised to pay the applicant a sum of money the following day. During the course of the exchange, the applicant told the victim that "if you're not here tomorrow with the money, I'll send some Aborigines around to slice your door down and cut your head off". The applicant also told the victim and his flatmates not to call the police. He said that if they did he would "cut [them] up into little pieces". The applicant said that he would return the following day. As he was leaving, the applicant stole the man Pietsch's wallet containing personal papers. Understandably, the applicant was terrified as a result of the incident. He nevertheless reported the incident to police. 7 The following day police observed the applicant, who was with another man (but apparently not the same person who had accompanied him the previous evening), banging on the victim's door. The victim was not however at home. Police intercepted the car which the applicant was driving as it left the scene. Located under the rear passenger seat was a .22 calibre semi-automatic handgun. The magazine contained 5 unspent rounds. Pietsch's wallet containing his personal papers was also located in the car. The applicant was also found to be in possession of 0.73 grams of cocaine. Following his arrest, the applicant spent a month in custody prior to his release on bail. The sentencing judge specifically adjusted the commencement date of the sentences to accommodate that fact. 8 The second set of offences arose out of the supply of cannabis leaf by the applicant, on three separate occasions, to an undercover operative. The transactions took place in the café which the applicant was running at the time. On each occasion the quantity supplied was approximately 1 gram, for which the applicant was each time paid $20. 9 The first two supplies took place on 30 January 2003 and the final supply occurred on 4 February 2003. On that latter occasion, the applicant facilitated the purchase of a $50 deal of amphetamine by the undercover operative from the proprietor of a nearby shop. The amphetamine was found to weigh 0.16 grams. It was a matter of aggravation that the offences alleged in the second indictment occurred whilst the applicant was on bail for the earlier offences. 10 The applicant who was 37 when he stood for sentence, had numerous prior convictions dating back to 1981. Whilst it is true that many of his convictions were for relatively minor offences which in the main had attracted fines, he had also served a number of custodial sentences. In 1992 he received a sentence of 3 months imprisonment for possessing a prohibited drug and other offences. In 1993 he received a minimum term of six months with an additional term of six months for supplying a prohibited drug and for possessing an unlicensed firearm. In the same year, he received further sentences of 2 months and 3 months for offences of assault police and breach of recognisance, respectively. In 1996 the applicant was sentenced to a minimum term of six months with an additional term of six months in respect of an offence of assault occasioning actual bodily harm. Finally, in 1997 he was sentenced to a minimum term of 9 months with an additional term of 3 months for corruptly soliciting a reward and for assault. There were also other entries for offences of dishonesty and violence scattered throughout his record. 11 The sentencing judge heard evidence from the applicant and from his ex-partner, with whom he had had a son. It seems that the applicant had been participating enthusiastically in his son's life even though the boy lived with his mother. The sentencing judge was also provided with a pre-sentence report together with various testimonials from persons who attested to the applicant's personal qualities. The evidence revealed that the applicant also had a baby daughter who lived with him and his current partner. There was evidence that the applicant and his partner ran the café together and that they had worked hard to develop it into a viable business. 12 There was also evidence that the applicant had had a disrupted childhood. His parents had come to this country as immigrants when he was quite young. The applicant had however been left behind overseas, in the care of family and friends, whilst his parents endeavoured to forge a new life in this country. The applicant appears to have been particularly distressed when his father died whilst he was a teenager. Nevertheless, he thereafter apparently shouldered much of the responsibility for looking after his younger siblings, until he left home at the age of 17. He then became involved to the drug milieu and it seems that he has had a long history of abusing various illicit drugs. 13 The sentencing judge allowed the applicant a discount of 20% for the pleas of guilty which his Honour accepted had been entered at the first available opportunity. He also took into account in the applicant's favour the delay in having the matters brought to finality; the hardship which his imprisonment would occasion his partner and children; the potential loss of his business; and his favourable employment record. The sentencing judge expressed misgivings about the extent of the applicant's remorse, as his Honour was of the view that the applicant had not fully acknowledged the seriousness of the various offences. Moreover, the sentencing judge was not prepared, in light of the applicant's history, to accept the submission that he had reformed. Neither of those findings has been challenged. In the circumstances, his Honour declined to make a finding of "special circumstances" within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. 14 The applicant's principal ground is that the sentences imposed are manifestly excessive. His particular complaint is that "His Honour erred in his accumulation of the sentences imposed in that he failed to allow in his total sentence sufficient time for the applicant to spend on parole". 15 Although no complaint is made about the individual sentences which were imposed in respect of the offences in the first indictment, it is nonetheless contended that the overall effect of the sentences which were imposed produced a non-parole period which is disproportionate to the head sentence (it being more than 83% of the head sentence). Moreover, it is submitted that the problem is exacerbated when regard is had to the way in which the sentences for the offences in the second indictment were structured. The effect is to produce an overall non-parole period of 45 months, which is 90% of the total sentence of 50 months. 16 The applicant submits that the sentencing judge has failed to have regard, when structuring the individual sentences, to the outcome which the accumulation of sentences has produced. That explains, it is submitted, what is otherwise an anomalous outcome. The sentencing judge, as has been observed, rejected a submission that he should find "special circumstances". That finding was open to the sentencing judge. I would not be disposed to conclude that his Honour's discretion miscarried in that respect, even allowing for the fact that the accumulation of sentences can itself constitute "special circumstances". See R v Simpson (1992) 61 A Crim R 58; R v Close (1993) 31 NSWLR 743; R v Clissold [2002] NSWCCA 356. Although in its current form s 44(2) does not prohibit a court from setting a period for the balance of the term which is less than one-third of the non-parole period, it is rather surprising, in the circumstances of the present case, that the sentencing judge did not indicate his reasons for having arrived at such a result. I am inclined to the view that the sentencing judge simply overlooked this matter. 17 The Crown referred us to two cases in which this Court dismissed appeals where it had been complained that the non-parole period was excessive by reason of the fact that it exceeded 75% of the overall term. In R v Lupton [2003] NSWCCA 200, the proportion was 80% and in R v So [2004] NSWCCA 362, it was of a similar order. However, it is pertinent to observe that in Lupton, the actual period to be spent on parole by the offender was 2 years, whilst in So it was 2½ years. It would appear moreover, that in each of those cases, the sentencing judge had specifically considered the question of the appropriate period of time which the offender was to spend on parole and the related question of the minimum period for which the offender was to be incarcerated. The sentencing judge in the present case simply made no reference to that issue or to the effect of the sentences which had been imposed a matter which, as I have said, his Honour seems not to have considered. 18 Accordingly, I am of the view that this ground of appeal should be upheld and that the court should intervene to correct the error identified. There are plenty of examples of instances, of which Close and Simpson are but two, in which this court has intervened in circumstances which parallel the present case: See R v Bolamutu [2002] NSWCCA 454; R v LWP [2003] NSWCCA 215; R v Keen [2004] NSWCCA 86. 19 It is unnecessary, in light of the view that I have formed about this Ground and the consequences which flow from it, to consider in any detail a further complaint that the sentences imposed in respect of the offences contained in the second indictment, particularly in their overall effect, are manifestly excessive. Nevertheless, it is to be noted that it was conceded on behalf of the applicant, and properly so in my view, that a custodial sentence was warranted. That concession was made notwithstanding the small quantities involved, because of the fact that the applicant has a criminal record for supplying drugs and because the transactions in question had a commercial flavour about them. 20 There remains the question of the manner in which the sentencing judge dealt with the matters on the two Form 1 documents. At the outset of the Remarks on Sentence, his Honour observed that in respect of the first indictment, there were two matters on a Form 1 which were to be taken into account. That undoubtedly was a reference to the offences which are associated with, and which were committed at the same time, as the matters charged in the first indictment, namely the possession of the cocaine and the stealing from a dwelling. Similarly, when referring to the offences on the second indictment, his Honour referred to an additional matter on a Form 1 document. Once again, it is tolerably clear that that was intended to be a reference to an offence which was related in time to the offences charged in the second indictment, namely an offence of knowingly take part in the supply of amphetamine. 21 However, considerable confusion has arisen because of the way in which his Honour expressed himself when pronouncing the individual sentences. His Honour first pronounced the sentences in relation to the matters on the first indictment, in the terms to which reference has already been made. His Honour did not, however, when doing so, make any reference to the two offences on the Form 1 which were related to those offences. His Honour then said, whilst referring to the offences contained in the second indictment, "I take into consideration the matters on the schedule in the first count on the indictment for supply…. On count 3 I take into consideration the matter on the schedule." Nor does the endorsement upon the indictment provide any enlightenment. That endorsement of course constitutes the formal record of proceedings: See R v Tran [2005] NSWCCA 35 and the authorities referred to therein. That notation simply states that "on count 3 taking matter schedule (sic) into consideration". Clearly these were errors of a kind which could have been corrected had an application been made to the sentencing judge pursuant to s 43 of the Crimes (Sentencing Procedure) Act 1999. Nevertheless it is appropriate for this court to now correct them. 22 Having considered those matters which are relevant to the re-sentencing exercise, I propose the following orders:

R v Ibrahim

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