R v Ibrahim [2010] VSC 333

2 The facts of the case may be stated simply. At about 2.10 pm on Wednesday, 19 August 2009 you were observed driving erratically in an easterly direction on the Monash freeway near Stud Road, in a blue Nissan X-trail that hired from Budget Rent-A-Car.

3 You collided with the railings in the centre of the road and continued down the freeway. The police were called and, when they located you, found you standing next to your vehicle, which was parked on the centre medium strip a short distance south of the South Gippsland overpass.

4 You were seen standing at the open passenger side front door with a blue bag in your hand, which you put on the ground. When the police approached and started to question you about your driving, you replied that you were only collecting some items from the car. As the questioning increased, so did your agitation. The police decided to search the bag which you had been holding and you became even more agitated. The bag contained a number of plastic bags and a set of scales. The police believed the bags contained methylamphetamine.

5 When questioned about the contents of the bag, you said, "I don't know whose it is." When the vehicle was searched, the police located another bag in the rear foot well under the front passenger seat. Within that bag was a smaller bag containing substance which the police believed was also methylamphetamine, two bags containing what was later found to be a cutting agent known as MSM or methylsulfonylmethane, some small zip lock bags and other drug paraphernalia.

6 On an analysis, it was established that there was a total of 1.3241 kilograms of material which contained methylamphetamine. The methylamphetamine ranged in purity from 1.6 per cent to 20 per cent. However, 970 grams were 2.5 per cent and a further 306 were 1.8 per cent in purity. Only 0.1 gram was 20 per cent purity. It follows from what emerged in argument, that the drugs were at about a street level purity or slightly above it.

7 The presence of the cutting agent and scales might readily lead to either of two conclusions. First, that the drugs had already been cut down to the purity which was found or, alternatively, that all the necessary equipment was present, including small plastic bags, to enable the methylamphetamine to be prepared for sale at street level.

8 You have not proffered any explanation for your conduct, except through your counsel, who put to me that you were merely a courier of the drugs and other items on behalf of an unknown third party. You made a no comment record of interview and you chose not to give or call evidence before me on that subject.

9 On the plea a report dated 20 May 2010 from David Ball, a forensic psychologist, was tendered on your behalf. He said in that report:

Mr Ibrahim simply explained the charges as self medicating his unresolved grief and trafficking in drugs to support himself and his addiction.

10 To find that you were a mere courier would be a factor in mitigation, and as such would require you to prove that fact on the balance of probabilities.

11 It will emerge in these reasons that you were on bail at the time of offending for similar offences, which were due to be dealt with in the County Court. In fact, you had attended the County Court that very day in relation to the case.

12 I am not prepared to accept that you were merely a courier. I am not, on the evidence, able to say precisely what your role was, but I do find that you were actively involved in the trafficking of this methylamphetamine. At the time of your arrest, the police found in your wallet a small bag containing methylamphetamine. I am prepared to accept that you were a user of methylamphetamine and addicted to its use at the time of this offending. That conclusion appears to be supported to some degree by your driving on this occasion and by your actions at the time you were approached by the police.

13 Your situation, and to a large degree the seriousness of your offending, is to be viewed by virtue of what happened before his Honour Judge Allen in the County Court on 16 December 2009. His Honour then sentenced you to be imprisoned for a total effective sentence of five year four months, with a non parole period of three years. You were sentenced following a plea of guilty to counts of trafficking cannabis, methylamphetamine and MDMA between April 2006 and June 2006. You pleaded guilty to those counts on 2 February 2009, and your plea was heard on 21 October 2009, but you have been in custody since your arrest in August 2009.

14 The evidence against you in the case before his Honour was derived almost entirely from legally obtained telephone intercept. It related in the main, if not entirely, to your dealings with your co-accused, Ismayel Ramadan. Count 1, trafficking in cannabis involved 308 grams. Count 2, trafficking in methylamphetamine, alleged that you were involved in three different instances of manufacture of amphetamines with others and you also bought and sold 350 grams of amphetamines valued at about $90,000. That dealing involved a large number of transactions. A head sentence of four and a half years was imposed on that count. Count 3, trafficking in MDMA, involved you buying 62 tablets and having discussions during which you offered to both sell and manufacture that drug during that period. The maximum sentence open to his Honour on those offences was 15 years.

15 I have already observed that on the morning of 19 August, you had been to the County Court for a mention in your matter and bail had been extended. On 7 August 2009, you were seen by another forensic psychologist, Mr Ian Joblin. Among other things, Mr Joblin reported:

However, Mr Ibrahim outlined his disappointment over being involved in these offences. He was able to outline an interesting history regarding involvement. It seems that after his mother died, on his report, he simply gave up. He had an argument with his father. He could not cope with his mother's death. He indicated at that point he had no history of drug use or attention from the police. He reported that after his mother's death he moved to an apartment in Southbank that he could not afford. He became involved with the co-offender, Ramadan. He acknowledged and Ramadan and others would attend his flat in Southbank and that over this time he would use whatever drug was available, apart from heroin. Thus he reported that he was smoking ice, using amphetamines and ecstasy. He acknowledged that he was headed in a downhill spiral consistent with his psychological state. Mr Ibrahim reported that he had handed himself to the police in late 2006. He was evicted from his flat and returned home where he had remained. He also indicated that he had been drug-free since returning home and that he has no further attention from the police.

This history is interesting. While I have not spoken with other members of his family in relation to this offending, it does seem from his report, after his mother died he deteriorated dramatically. He appears to have had a strong, almost pathological grief reaction which is an extreme or inappropriate response to bereavement, with associated strong feelings of persistent depression and hopelessness. He wanted to divorce himself totally from any environment associated with his mother, not unlike his psychological reaction to such grief. Thus he moved to the city and led a lifestyle that he could not afford. Under those conditions, it seems there was a significant link between the reaction to his mother's death and his lifestyle at the time of the offences in 2006. Further, from questioning, Mr Ibrahim reported that if he had not been so depressed and had not come to Melbourne, he would still be working as a courier or developing a business. Nevertheless, it was quite apparent that those options were not available to him and he chose to come to the city and led this extraordinary lifestyle, dominated by drug use and these offences. Mr Ibrahim was obviously headed downhill and that was entirely consistent with his psychological state at that time. Mr Ibrahim still had difficulties with regard to grief. He is angry over becoming involved in these offences. He acknowledged the problems he has had with the criminal justice system and indicated that the time it has taken for these matters to be heard in court has been a period of considerable apprehension for him. He is now involved in a care/bar in the city. He still lives in Hallam. He was emphatic that he is no longer using drugs, but has no drug-screening certificates.

16 That appears to be an untruthful and incomplete history, since it was urged upon me, not only were you using drugs at the time of this offence, 19 August 2009, but that you were addicted to them. I do accept that you have had a significant reaction to the death of your mother. Mr Ball, who I referred to earlier, confirmed that in his report. It must, however, be observed that your mother died some four years before your involvement in these events. You had been arrested in late 2006 and had a large number of court appearances, as well as satisfying your bail conditions to act as a reminder to you of the absolute folly and true seriousness of engaging conduct of this particular kind.

17 In your case, it is difficult to separate your two periods of offending. In that context, it is difficult to say how your addiction is to be regarded. Although your grief may have led you to alter your lifestyle, it is that lifestyle which led to using drugs, which resulted in your addiction. You then seem to have willingly engaged in the conduct which led to your appearance in the County Court. Although you remained on bail from December 2006 until August 2009, you do not appear to have done anything about your addiction in the sense of seeking any treatment or counselling for it.

18 The courts have recognised that addiction may be relevant to sentencing (See R v Nagy,[1] R v Bouchard[2] and R v Lacey.[3]) The situation though, is perhaps best summarised by Buchanan JA in R v McKee.[4] His Honour said in that case:

The motive for the commission of the crimes was the appellant's need for money with which to buy heroin to feed their addiction. According to the Court of Criminal Appeal in New South Wales it has been "said on countless occasions that addiction to heroin is not to be considered as effective reduction of what would otherwise be an appropriate sentence".

19 While the existence of an overwhelming physical craving may explain the commission of a crime, for instance to obtain money to purchase heroin to still the craving, the courts' refusal to take that into account may be due to the view that the decision to begin to use drugs is said to be voluntary and the commission of crimes to feed an addiction is a likely consequence of that choice. In R. v. Henry,[5] Spigelman, C.J. said:

Self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice.

20 The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman CJ acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs, and that condition may be the result of social or economic disadvantage, poor education, or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated when deciding upon a sentence appropriately tailored to the personal circumstances of the offender.

21 Your offending was at such a level, particularly in the absence of evidence that you were no more than a courier, it is very difficult to give much weight to your addiction for the purpose of mitigating your sentence. Very few, if any, of the features adverted to by Buchanan JA exist in your case, except the possible influence of the death of your mother that I have described above. It is an important part of your background and I do take it into account.

22 You are now 30 years of age. You have some prior convictions from one court appearance relating to driving matters and I give no weight to that for present purposes. You were born in Melbourne. Your family is Egyptian, and your background is generally unremarkable. Your mother died of breast cancer in 2005. You would appear to have the support of your family. Your schooling was also unremarkable. You completed your VCE. You began a Civil Engineering course at Victoria University but later turned to a business course at TAFE. You did not complete that course, but rather, started a business transporting cars, which failed as the result of an accident. Thereafter, you worked as a courier.

23 Mr Ball, whose report I have also referred to, reported this:

My view is that Mr Ibrahim's recent offences stem from his unresolved grief and grief-related anger at himself and the world for the death of his mother. He has sought to cope with his grief by abusing cannabis and the highly addictive methylamphetamine and has sought funds to support his addiction by trafficking.

24 Consistent with what I have already said in relation to your addiction, I regard that explanation as, at best, simplistic when regard is had to the amount of the substances involved, both before the County Court and here.

25 This offence occurred whilst you were on bail and your prospects of rehabilitation have to be viewed in that light, that is, with caution but at least some hope for the future. I accept that you expressed remorse to Mr Ball, but just how remorse is to be measured for offending of this kind, separate from your appreciation of the consequence of your actions to yourself, is hard to judge, but I do accept that you regret what you have done.

26 It was urged on me that I should take into account the fact that this offending took place on one day and I do so, but it is very hard, again, when dealing with quantities such as this, to say much about it. I can say that the offence would be more serious had it occurred over several days or longer, and in such circumstances may well have involved larger quantities.

27 Your offending did relate to what is clearly a large commercial quantity. The charge carries a maximum term of life imprisonment. Although I would regard this particular offending at the lower end of seriousness for its kind, it is nonetheless an instance of an offence which is in the category of the most serious offending recognised by the law in this State. That is, it is an offence which carries life imprisonment.

28 The fact that you were on bail is important in two ways. Firstly, it aggravates the seriousness of your conduct, and I have already made it clear the strong warning that you had following your earlier conduct not to involve in conduct of this kind.

29 Separately I am commanded by s 16(3)C of the Sentencing Act 1991. Every term of imprisonment imposed on a person for an offence committed whilst released on bail in relation to any other offence or offences must, unless otherwise directed by the Court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether before or at the same time as that term.

30 I am obliged to have regard to the principles of totality. I have regard to the fact that you have been in custody continuously since 19 August 2009 and I will make some order for concurrency in this case. I have regard to the fact that you are serving a sentence of five years, four months with a non-parole period of three years.

31 I have taken into account your plea of guilty, but it cannot be avoided that the case against you in this instance was very strong, if not overwhelming, but you have nonetheless saved the Court a good deal of time and inconvenience, as well as the community at large.

33 On the count of trafficking a drug of dependence in not less than a large commercial quantity, namely, methylamphetamine, you are sentenced to be imprisoned for eight years.

34 I direct that two years, four months of this sentence be served concurrently with the sentence you are undergoing. That is a total effective sentence of eleven years.

35 I am obliged to fix a new non-parole period, both for this offending and in relation to the sentence which you are undergoing, and I fix a non-parole period of eight years. Pursuant to s 6AAA of the Sentencing Act 1991 I state that, but for your plea of guilty on this count, I would have sentenced you to a head sentence of ten years in the circumstances with a non-parole period of seven and a half years.

36 It must be borne in mind that takes into account that I sentence you in circumstances where you are already undergoing a sentence.

37 I declare that 188 days be reckoned as having been already served under this sentence and I order that this declaration and its details be entered in the record of the Court. You may sit down.

[1] R v Nagy [1992] VicRp 45; [1992] 1 VR 637.

[2] (1996) 84 A Crim R 499.

[3] [2007] VSCA 196.

[4] R v McKee, R v Books [2003] VSCA 16.

[5] R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346.