R v Rabieh

OBJECTIVE SERIOUSNESS

1. Turning then to the objective seriousness of the offences. Firstly the maximum penalties and standard non-parole period specified for counts 1 and 2 clearly mark these offences as very serious and capable of being among the most serious criminal offences under New South Wales law. The maximum penalty of five years for the count 3 offence is an indication that this is a much less serious offence, but nonetheless a potentially serious one.
2. However it is of fundamental importance that I make an assessment of the seriousness in an objective sense of the particular examples of each of the offences before the Court. In determining the seriousness of a drug supply offence, the weight of the drugs, their purity and value are important considerations, but they are by no means the most important or the dominant considerations. Fato v R [2017] NSWCCA 190; Melikian v R [2008] NSWCCA 156.
3. What is more important is that the Court make an assessment of the role performed by the offender. That is, what she actually did in her commission of the offences.
4. In written submissions filed on behalf of the offender it was submitted that counts 1 and 2 are aggravated by having been "committed in company" and being committed for financial gain. I do not however accept that these offences were committed "in company" as that expression is usually understood and so I put this suggestion aside. While I accept that the offences were committed for financial gain, I do not see this as aggravating in the circumstances, given that offences of supplying prohibited drugs in large quantities are almost invariably committed for that purpose. I therefore give this aspect little weight.
5. It was also submitted by the offender that counts 1 and 2 were "part of an organised and criminal activity, but the role of the defendant was limited in respect of any planning". I accept that these two offences were indeed part of an organised criminal activity, although again that is the case with most large drug supply offences and so the weight I attach to this aspect is limited. On the other hand I accept that this offender's role involved little in the way of planning, given that she was essentially acting in the role as a custodian of the drugs in Mr Maleki's absence.
6. As I have just noted, the Crown case was that the offender was in effect the "custodian" of the drugs while Maleki was overseas. I am satisfied beyond reasonable doubt that she did have this role and also that she was complicit in the premises which she occupied with Maleki and their children being used for the purpose of warehousing the drugs. Moreover, I am satisfied beyond reasonable doubt that she was entrusted with the safekeeping and management of the drugs while Maleki was overseas. Based on the available evidence I am not able to determine exactly what that "safekeeping and management" actually involved.
7. The recorded conversations between the offender and Maleki on 14 February, however, suggest to me that the offender was not overly attentive to her safekeeping and management role. This inference arises from a number of questions asked of her by Maleki and her rather vague responses, as well as what appears to have been some frustration expressed by Maleki in relation to her answers. For example, the offender indicated early in the conversation some uncertainty as to the location of the "gunny sacks" in the storage area. Also, the later conversation where Maleki asked the offender who had left the storage open and in which he momentarily suggested that some of "the load" was missing, before being reassured by the offender that "Siamak has taken it upstairs" and that she did not know why the area had been left open.
8. It was argued on behalf of the offender that the offending is mitigated because the offender was acting under a degree of duress, in that she had been subject to physical violence and was in an abusive relationship. While the offender claimed in evidence at trial that she was subjected to physical violence from Maleki on more than one occasion, the evidence to support this was and remains fairly slim. There was evidence noted at p 210 at the trial transcript that police were called to the couple's apartment in November 2017 and on this occasion "there was some discussion about domestic violence". However no independent or convincing evidence of injuries or any other form of domestic violence was placed before the Court either at trial or on sentence.
9. There is, however, the statement of Mr Maleki drafted by the offender's lawyers in which he refers to pushing the offender at times and says: "I could have punched her in the stomach and she may have gone to hospital. At this times(sic) I was affected by the opium I was smoking and I do not remember all the things I did."
10. However I place little weight on this evidence, not only due to its vague nature, but also because the evidence comes from a convicted co-offender who the Court was informed had give a statement shortly before the trial of this offender, saying that he was prepared to given any assistance that he could to this offender. However, notwithstanding my scepticism about the evidence of domestic violence, I do accept based in part on traditional cultural issues associated with the background of Maleki and the offender, and based in part on the somewhat domineering comments made by Maleki in the recorded conversations, that the offender was to some degree subject to his direction and that he may at times have been aggressive and abusive. I do not, however, accept that the offender's commission of the offences was due to her being under duress.
11. In my assessment, the offender was a willing participant and very happy to share in the profits of drug dealing with Maleki and to continue the materially comfortable lifestyle which they both enjoyed. There is no doubt however that this offender was at a considerably lower level than Maleki.
12. As I have already found, she was at least a custodian who was trusted by Maleki to keep safe and manage the drugs while he was away and to provide, jointly with Maleki, the premises where those drugs were stored. However I am unable to conclude exactly what the offender actually did in performing that role and I am left with the impression that she was not overly attentive to or terribly good at it. Having said that, I am nonetheless satisfied beyond reasonable doubt that the offender was a willing participant in the drug enterprise that was being conducted principally by Mr Maleki. By "drug enterprise" I mean the enterprise of having possession and control over this very large quantity of drugs for the purpose of supply.
13. The offending was not momentary or fleeting, but included a period of more than two weeks while Maleki was overseas. While the offender was not directly responsible for selling any drugs or sourcing them, she knowingly took part in the (deemed) supplies, was a trusted and important participant and intended to share in the profits with Maleki.
14. Having regard to all of the material, I assess the count 1 offence as being around the mid-range of objective seriousness and the count 2 as being somewhat below the mid-range but not approaching the lower range of objective seriousness.
15. The Crown also made the following submissions. That the offender knew about and took part in Maleki's drug supply operation over a period of many months. That she assisted him to launder drug money. That she lent her name to the business that he used to bring methamphetamine into Australia. That she knew he had a warehouse where he stored methylamphetamine and she visited him at that warehouse. That the flower business was being established so that the couple could wash the proceeds of the drug dealing business, and further that she willingly assisted Maleki in a variety of ways to facilitate his drug supply business when he asked her to do so.
16. It seems to me that many of these suggestions by the Crown are very likely true. However they extend beyond the scope of the offences for which the offender is to be sentenced and do not form part of the jury's verdicts. In my view therefore it would be wrong for me to punish the offender for any other such activities. I therefore put these arguments aside, other than in the following respect.
17. It is clear in my view that the offender had, for a considerable time before the offences, known about, and enjoyed the benefits that Maleki's drug import and supply business provided to them both. This included luxury cars, extravagant brand name purchases from shops like Louis Vuitton, and overseas trips, all while they were both supposedly unemployed and on Centrelink benefits. The offender's awareness of and enjoyment of the proceeds of the ongoing drug enterprise run by Maleki do not increase the objective seriousness of her offending. But they do mean that the offences before the Court cannot be treated as isolated instances or momentary lapses by a person who was otherwise an honest and hardworking member of society.
18. Turning to the objective seriousness of count 3. The amount stipulated in this charge was $264,750. However that was only a particular and, as the jury was told, it was only necessary for the Crown to prove beyond reasonable doubt that the amount of money reasonably suspected to be the proceeds of drug supply was $100,000 or more. The jury's verdict therefore indicates that it was satisfied beyond reasonable doubt about an amount of at least $100,000 and of the other elements of this offence.
19. In the trial there was evidence from the offender and also from her father in Iran, each stating or suggesting in effect that these monies or most of them came from legitimate sources. The offender's father gave evidence that he sent to the offender in 2016 to 2017 a total of about $250,000 in Australian currency. There are reasons to doubt the veracity of this evidence. One good reason is that in her record of interview the offender said that she received $100,000 from Iran and said nothing about it coming from her father, or that it was in fact $250,000. However it was never put to the father in cross-examination by the Crown, that he was lying about having sent about $250,000 to the offender.
20. Also, there was evidence in the trial from the step‑brother of the offender who said that the offender was minding about $35,000 of his money, which is reasonably consistent with the amount of $30,000 that the offender claimed in her ERISP interview to have belonged to her brother.
21. Having regard to the evidence from the father and the step‑brother, I am unable to be satisfied beyond reasonable doubt that the entire amount of $264,750 is reasonably suspected of being the proceeds of crime. I therefore approach this offence on the basis that there are reasonable grounds to suspect that an amount of at least $100,000 was the proceeds of crime, namely dealing in illicit drugs.
22. Given that this offence only barely meets the threshold element of $100,000, but having regard also to my conclusion that this money was the proceeds of drug sales, or at least can be reasonably suspected to have been, I assess this offence as being between the mid and low range of objective seriousness.

SUBJECTIVE MATTERS

1. Turning then to subjective matters. The offender is 34 years of age. Her background and current circumstances were presented in a range of written materials, including the report of psychiatrist Dr Simonelli. Based on all of the written material, I have gathered the following: The offender was born in Tehran and was the third of four children in the family. She reported some domestic violence in the family home, and the offender reported also that she was sexually abused at the age of six, a claim that was not challenged by the Crown in the sentence proceedings.
2. The offender came to Australia in 2013, when she was about 24, after fleeing Iran due to religious persecution for her Christian beliefs. After entering Australia as a refugee, she married her first husband Mr Maleki, and they had two children together. These children are no longer in the offender's care, the older child being the offender's mother in Iran and the younger being in foster care in Australia.
3. The psychiatrist concluded that the offender's judgment and insight were good. He reached a similar conclusion with respect to her intellectual functioning, which is consistent with the fact that she completed four years of a law degree in Iran. However, the psychiatrist also concluded that the offender met the criteria for the following: Major depressive disorder with anxious distress, recurrent and severe.
4. The psychiatrist further concluded that the offender has some of the characteristics of Borderline Personality Disorder. More significantly, the psychiatrist concluded that the offender meets the legal criteria for an abnormality of the mind with her depressive condition and level of distress and anxiety being of such severity that it would be apparent to most people having engaged with her.
5. While the offender's mental distress and depressive condition have some history going back to when she was much younger, the psychiatrist concluded that the offender's current persistent depression and anxiety is connected with her fears about the current proceedings and their outcome. These reports of depression, anxiety, and self‑harm are consistent with the various case note reports from when the offender was bail refused, which note that she was often distressed and on occasions made attempts at self‑harm.
6. Finally, the psychiatrist noted that the offender faces enormous psychosocial adversity, particularly due the obvious stress of being separated from her two youngest children if she is imprisoned. He notes that the disruption of her attachment to her children is:
7. "Bound to create significant psychological wounding and put Ms Rabieh at risk of worsening mental health, a worsening depressive disorder, suicidal ideations, suicide related behaviour, and completed suicide."
8. The psychiatric report makes the obvious point that in a custodial setting the offender is unlikely to receive robust treatment for these problems.
9. The history given to the psychiatrist is fairly consistent with that noted by the psychologist Mr Awit in his report of 2019. He noted the documented history of anxiety and depression as well multiple suicide attempts and concluded in 2019 that the offender met the criteria for generalised anxiety disorder, panic disorder, and major depressive disorder. Mr Awit in his 2019 report expressed the opinion that there was a nexus, that is a connection, between the offender's mental condition and her involvement in the offences, in that her decision making was impaired.
10. While this suggestion is given little support by the more recent report of Dr Simonelli, I accept, as a matter of reasonable inference, that the offender's ability to think and act responsibly was likely impaired by her mental difficulties. I consider that this reduces her moral culpability to some degree.

REMORSE

1. Turning then to questions of remorse. Although it is noted in the psychological report of Mr Awit of 4 November 2019 that the offender "expressed shame and remorse for her actions," that report was evidently prepared at an earlier time when the offender had pleaded guilty before withdrawing that plea. The offender now, however, maintains her innocence despite the jury's verdicts and despite what was, in my view, a powerful body of incriminating evidence of her guilt. There is no remorse in this case.

REHABILITATION

1. Turning then to prospects of rehabilitation and future risk. The offender has a very limited criminal history and had no convictions at the time of these offences. She has been assessed as medium-low risk on the LSI-R assessment tool. Having regard to this but also to her lack of remorse and claim of innocence, despite significant evidence of guilt, I think she continues to present a material risk of reoffending. I am unable to reach a positive finding about her prospects, which I assess as being uncertain.
2. In Commonwealth Director of Public Prosecutions v De La Rosa [2010] 273 ALR 324 McClellan CJ at CL summarised the principles that apply when an offender is suffering from a mental illness. Firstly, where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced, with a reduction in the sentence.
3. Secondly, it may also have the consequence that an offender is AN inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed. Thirdly, it may mean that a custodial sentence may weigh more heavily on the person because the sentence will be more onerous for that person, AND the length of the prison term or the conditions under which it is served may be reduced.
4. Fourthly, it may reduce or eliminate the significance of specific deterrence.
5. Fifthly but conversely, it may be that because of a person's mental illness they present more of a danger to the community. In those circumstances considerations of specific deterrence may result in an increased sentence.
6. As to these matters, I have already found that the offender's background and mental health issues reduce her moral culpability to some degree.
7. Secondly, and for the same reason, I am of the view that the importance of general deterrence is reduced to some degree.
8. Thirdly, I accept that the sentence will be more difficult for the offender by reason of her ongoing mental health problems.
9. Fourthly, while the need for personal deterrence is reduced to a slight extent, it remains an important matter, in my view.
10. As to the fifth consideration in De La Rosa, I am of the view as I have earlier said, that the offender remains a material risk of reoffending and she continues to present some risk to the community.

DELAY

1. There has been significant delay in these proceedings. While I have not been provided detail as to the reasons for all of that delay, I accept that the delay and the fact that the offender was on fairly strict bail conditions during much of that time is a stress and punishment that she has already suffered and which I have taken into account.

FAMILY

1. I turn then to questions of impact upon the family of the offender. The principles to be applied when considering the relevance of hardship to family members have been considered in many cases. The principles are derived largely from the decision in R v Edwards (1996) 90 A Crim R 510.
2. The decision by a court to sentence a person to full time imprisonment is a decision that very frequently, if not always, will have an adverse impact not only on the offender but also on the offender's family and associates. Sometimes that impact can involve real and severe hardship to others. However, and in accordance with a long line of authority, it is only if the likely impact on others can be regarded as exceptional that this can be taken into account to significantly ameliorate an otherwise appropriate sentence: R v Togias [2001] 127 A Crim R 23; Le v R [2006] NSWCCA 136; R v Nguyen [2006] NSWCCA 369.
3. In the case before this Court today, the offender currently has the care with her partner of two young children. According to the offender's affidavit, the younger child was born in May 2023, however, medical notes, which I consider more reliable, state the date of birth as being 22 April 2023. That child is now only just over four months old. I was told during the trial that the offender was at times breast feeding this child or expressing breast milk for the child. Upon the jury's verdicts, and after I convicted the offender on the offences, I continued her bail essentially to give the child the time to be weaned from breast milk. The material before the Court suggests that that may not yet have happened and it was argued by the offender that there had been some difficulties in weaning the baby onto formula. This claim is, however, reliant on assertions made by the offender and her partner which have been made either to the Court or to medical practitioners. Regrettably I am sceptical of such claims by the offender. I consider it highly likely that the failure to successfully place the child on formula is an attempt to avoid unpleasant and unfortunate consequences that must, in my view, flow from the jury verdicts.
4. My conclusion in this regard in part arises from what I consider to be inaccurate embellishments by the offender in her affidavit of 18 August 2023. In that affidavit, she claims to hold "grave concerns" for the baby who she claims to be "extremely unwell." She says a number of times in the affidavit that the baby's condition is worsening and that the child "only weighed 75% of the standard weight for a baby of her age." These various assertions are not supported by the medical evidence. Although the report of Dr Janalizadeh of 16 August 2023 notes the claims by the parents about problems in using formula, it also recorded "no abnormal findings" and "good weight gain" and on 7 June 2023 noted that the child was "in the 75th percentile of the standard weight for her age." This, of course, means, contrary to the suggestion in the offender's affidavit, that the baby was within the higher range for expected weight. Similarly, the offender's claims about her baby's health are contradicted by the most recent report which is dated 21 August 2023 from Dr Bidarkar. That report notes that the baby is "thriving," that her weight is at the 85th to 97th percentile and that her height is greater than the 97th percentile.
5. Nor do I accept the offender's assertion in her affidavit that she is the sole care giver of the two children; that there is no one else available to care for her two children and that her partner is not capable of doing so. In this regard, the medical reports about the baby note that the child's father attended almost every appointment. Also, the offender's partner provided her and presumably the children with significant support in being present through much of her trial, despite the evidence that her partner has some mental health history, himself.
6. There was also the fact, as I am aware, that the offender has the support of her family in Iran who are currently already caring for one of her four children.
7. In conclusion, I do not accept that the circumstances of the offender's two youngest children amount to exceptional circumstances in the sense that that expression has been interpreted in relevant case law.

BUGMY FACTORS

1. Dr Simonelli says that the offender, based on self-report, suffered extreme adversity during childhood such as sexual abuse and domestic violence and went on to experience religious persecution and fleeing her homeland with refugee status. A similar version was reported in 2019 to Mr Awit. While there are reasons, which I have set out elsewhere in these remarks, to be sceptical about anything said by the offender, on balance, I accept that she did suffer these experiences and that they did involve significant adversity. It was argued that these circumstances enliven the principles discussed in Bugmy v The Queen (2013) 241 CLR 571. In Nasrallah v R [2021] NSWCCA 207, President Bell of the Court of Appeal as his Honour the Chief Justice then was, said that: "The boundaries of Bugmy have not been clearly or definitively delimited."
2. His Honour went on to say: "That is not to say however that the consequences of sexual assault including a single sexual assault on a child may not produce profound and highly detrimental impacts on the child so assaulted..."
3. In my view, the principles in Bugmy are relevant in this case.
4. I am satisfied that the offender's background of abuse and other difficulties has contributed to her history of psychological instability and other mental problems described in the reports of Dr Simonelli and Mr Awit. I am satisfied that these matters impaired to some degree her decision-making and contributed to some extent to her choosing to engage in irresponsible and unlawful behaviour. While the offending before the Court did not involve a sudden or impulsive act, I am, nonetheless, satisfied that the offender's moral culpability is reduced to some degree by reason of the background to which I have referred in these remarks.

PARITY

1. In determining the sentence for this offender it is relevant that I have regard to the sentence imposed on her co-offender, Mr Maleki. Traill DCJ sentenced Maleki in July 2021 to an aggregate head sentence of 14 years imprisonment with a non-parole period of 9 years 4 months. The offences on which Maleki was being sentenced were not the same as those on which Ms Rabieh is to be sentenced, but there are some important common aspects.
2. Count 2 in Mr Maleki's case related to the deemed supply of the combined quantities of methylamphetamine found at the Asquith premises, which in the case of this offender is divided between counts 1 and 2. In Maleki's case the suspected proceeds of crime offence, which is count 3 in relation to the current offender, was dealt with on a s 166 certificate which meant that it was subject to the two year jurisdictional limit of the Local Court. Maleki also had another offence on a s 166 certificate relating to his possession of a taser. He was also sentenced for a deemed supply of 773 grams of methylamphetamine relating to a drug supply transaction in relation to which Ms Rabieh is not suggested to have been involved.
3. Traill DCJ allowed a discount for Maleki's guilty pleas of 15% and a further discount of 15% for assistance to authorities, taking the combined discount to 30%. The relevant indicative sentences nominated by Traill DCJ after application of the 30% were as follows.
4. For count 2, which related to the combined total of just over 33 kilograms found at the Asquith premises, an indicative sentence of 12 years with a non‑parole period of 8 years. When the 30% discount is taken into account, it seems that her Honour started with a head sentence of about 17 years 2 months. On the sequence 5, Proceeds of Crime offence, in Maleki's case her Honour nominated an indicative sentence of 12 months.
5. In my view, parity considerations are of relevance in sentencing this offender. By parity considerations I mean the importance of not creating a justifiable sense of grievance when the outcome in Mr Maleki's case is compared with the current case and vice versa.
6. While the Crown did not at trial rely on joint criminal enterprise, the fact remains that both Maleki and this offender have been convicted in relation to supply offences involving the drugs and cash found at the Asquith premises. Having said that, I repeat that this offender occupied a much lesser position and role than Mr Maleki. That is in part, perhaps, reflected by the fact that counts 1 and 2 against this offender are "knowingly take part" offences which might be seen as an acknowledgment by the Crown of her lesser role even though the maximum penalty remains the same.
7. Maleki was found by Traill DCJ to have been the principal, and involved in all levels of the large supply of drugs and was heavily involved in the manufacture of drugs. While I have little doubt that this offender was a beneficiary for some time of Maleki's drug "business", if that is the right word, and probably facilitated his actions, she is not to be sentenced for that, but only for the offences before the Court.
8. It seems to me, therefore, that although the sentence outcome in Mr Maleki's case is relevant on a parity basis, there is a proper basis to conclude that Ms Rabieh's criminality, together with her particular subjective factors, are such as to justify a significantly lesser sentence than those indicated or imposed in Mr Maleki's case.

THE PANDEMIC

1. The offender has already spent in custody an agreed total of 574 days. Some of this was in 2020 and 2021 during some of the worst aspects of the pandemic. I have taken into account, therefore, the additional difficulties likely to have been experienced by the offender in custody at that time which would have made this part of her gaol experience more burdensome.

DETERMINATION

1. This is a difficult sentencing exercise, largely because of the undoubted negative impact that any sentence of imprisonment will have on the offender's children. It is not their fault that the offender with her partner made the unwise and somewhat selfish decision to give birth to them while the offender had these charges hanging over her head. Nonetheless I have had regard, to the extent that I am permitted to, to the impact on the children of separation from their mother and also to the undoubted impact that this separation will have on the offender's mental health.
2. In determining the sentence I have had regard, of course, to s 3A of the Crimes (Sentencing Procedure) Act 1999 which sets out the purposes of sentencing, namely the importance of the offender being adequately punished, the importance of preventing crime by deterring the offender and others, of protecting the community, of making the offender accountable, of denouncing her conduct and recognising the harm done to the community, but also, to the extent that it is possible, to promote the rehabilitation of the offender. I am satisfied that the so-called threshold in s 5 of that Act is crossed and that no penalty other than one of full-time imprisonment is appropriate. I intend to impose an aggregate sentence.
3. I have made a finding of special circumstances for adjusting the ratio between head sentence and non-parole period. I make that finding based on this being the offender's first period in full‑time custody and the likely difficulties she will experience with her mental health.

TOTALITY

1. Given that I must impose sentence for three offences, I have had regard to totality principles. In other words, the importance of having a final look at the ultimate sentence to avoid it being of an inappropriately crushing nature. In my view, the offences in counts 1 and 2 should be looked at as being part of the same offending and should essentially be served in a notionally concurrent manner. The count 3 offence, however, involves separate offending and should therefore involve some slight degree of notional accumulation.
2. Given that I am imposing an aggregate sentence, it is necessary for me to nominate the indicative sentences for each of the offences. These are not the sentences that will ultimately be imposed. That will be made clear in a moment. The indicative sentences are as follows.
3. The indicative sentence for count 1 is nine years' imprisonment with a non-parole period of five years four months.
4. In relation to count 2, the indicative sentence is one of seven years, and I nominate a non-parole period of four years two months.
5. For count 3 the indicative sentence is one of 12 months.
6. I impose an aggregate head sentence of nine years two months. I impose a non-parole period of five years six months. The sentence will commence on 4 February 2022. The head sentence will therefore expire on 3 April 2031. The non-parole period will expire on 3 August 2027. I direct that a copy of the reports of Dr Simonelli and Mr Awit be sent to Corrective Services and to Justice Health.
7. Ms Crown, Mr Phillips, anything to raise in relation to any factual matters?
8. PHILLIPS: Not on a factual basis, your Honour, but unusually I am instructed to apply for appeals bail under s 62. I'm instructed that a notice of intention to appeal has been filed in regard to the conviction. It's unusual insofar as, essentially, your Honour will be being asked to consider some of your own directions in regard to that. Normally one sees this particular section employed in the Local Court, but as I have pointed out, I am instructed to apply for appeals bail on the basis that a notice of intention to appeal has been filed and that, noting that the defendant is on Legal Aid, there is a process now that must be gone through, including a merits advice.
9. The first question, I suppose, for the Court is, is your Honour inclined to consider such an application, in essence, where you're going to consider, probably in part, not only the jury's verdict, but also possibly directions that may be made during the trial. It's an unusual situation, your Honour, but I have those instructions.
10. Certainly in my experience in the Local Court, the way this would normally be done is, if the trial judge wasn't prepared to hear it, there'd be a notice of motion filed and it may be heard by another judge at the same Court. Section 63 means it doesn't necessarily have to go straight to the Supreme Court for consideration.
11. HIS HONOUR: If I was going to hear such an application I'd need to be informed of the grounds and, at the moment, I think I'd have trouble in seeing why there's any basis for it. It hasn't been argued to me. I haven't had any argument put to me that there was any wrong directions given to the jury, and in my view it was a very strong Crown case.
12. PHILLIPS: Yes, your Honour. I'm asking because it seems to me that there is an initial decision whether your Honour is even prepared to hear it, given that it does, to a certain regard ask your Honour to consider, if I made that application, potential errors either in respect to the verdict and/or to either directions given or not given. There are no grounds of appeal yet drafted. That's a matter for the Legal Aid merits process. I've never, from my own practice, ever had to instruct to make this application before the sentencing judge who conducted the trial.
13. HIS HONOUR: The section says the Court "may" hear an application if the Court has convicted the person, and I've done that, and if proceedings on appeal against sentence or conviction are pending. I haven't seen any documents, but you told me there is a notice of intention to appeal.
14. PHILLIPS: I'm instructed that's the case, only in regard to the conviction, your Honour.
15. HIS HONOUR: Right. But in the situation where I have not been given any information about what the alleged errors are, why would I accede to granting bail?
16. PHILLIPS: I would only have to make an argument in front of you recanvassing issues that were raised during the trial. The problem I see in part is - and that's why a Court may - is that, when I've seen this done before it's been in the Local Court and it's been a separate magistrate that's done that. I make the point, my instructions are to make it now because the client is legally aided. Obviously the client will go into custody now and I come back, I am instructed, and I emphasise those words, it seems to me there is a threshold issue as to whether your Honour will or can hear an application which is asking your Honour to recanvas potential directions.
17. I've never come across a position where I've made such an application to a judge. I correct that in one way - I have to come back and correct that - where the judge has been invited to consider whether there was an error of procedure or an error on the part of the jury during the trial. And I say in the exception, there was one case in front of Judge Norrish where he commended the case to the CCA as being in error, the verdict being in error, and in that case he declined to hear an appeals bail application under this section.
18. HIS HONOUR: All right. Anything else?
19. PHILLIPS: No, your Honour.
20. HIS HONOUR: Ms Crown, do you have anything to say about it?
21. MOIR: Your Honour, the Crown's just been put on notice of this bail application today. We've seen no documents in relation to proceedings being on foot and no appeal documents. We're unaware of any intention to appeal filed. So I would say the threshold is not met for your Honour to consider this.
22. HIS HONOUR: An application has been made, subsequent upon the conviction and sentence of Ms Rabieh, for her to be released on what has been referred to as "appeals bail" pursuant to s 62 of the Bail Act. It has been submitted that a notice of intention to appeal has been filed and I have no reason to doubt the truth of that assertion.
23. The circumstances, however, are that I have no details before me of any argument as to any errors that are said to have been made in my directions to the jury, nor do I have any evidence, it seems to me, which would support a conclusion that the jury's verdict was unreasonable. Indeed, as I have earlier expressed, it seems to me that there was a very strong Crown case and it was not at all surprising that the jury found the offender guilty.
24. In my view, therefore, any prospects of success on appeal against conviction are slim. Furthermore, in relation to the question of imprisonment and any appeal against sentence, it seems to me that if the offender's convictions are confirmed on appeal, it would be inevitable that she would receive a period of imprisonment, and the period of imprisonment that I have imposed, it seems to me, is one that might be described as being on the more lenient side when looking at other comparable cases. However, that is a matter that the Court of Criminal Appeal no doubt will have to consider. In the circumstances, I am not prepared to grant bail and I refuse the application.
25. PHILLIPS: May it please your Honour.
26. MOIR: May it please the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2023