Dib v Rex

Case [2023] NSWCCA 243


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dib v Rex [2023] NSWCCA 243
Hearing dates: 17 March 2023
Date of orders: 6 October 2023
Decision date: 06 October 2023
Before: Simpson AJA at [1]
Garling J at [150]
Ierace J at [151]
Decision:

1. The time within which to appeal is extended to 6 September 2022.

2. Leave to appeal is granted.

3. The sentence imposed in the District Court on 27 April 2020 is set aside.

4. The applicant is sentenced to imprisonment comprised of a non-parole period of 10 years and 4 months, commencing on 8 August 2017 and expiring on 7 December 2027, with a balance of term of 5 years and 3 months, which will expire on 7 March 2033.

Catchwords:

SENTENCING – whether sentence should be backdated or reduced to take account of wrongful imprisonment on unrelated charges – consideration of interstate authorities – no basis for departing from existing position in New South Wales

SENTENCING – federal offenders – sentence by State court for offence against Commonwealth law – consistency

CRIME – appeals – appeal against sentence – conspiracy to import commercial quantity of border-controlled drug – MDMA – pure weight of 594.43 kilograms – parity – manifest excess – leave to appeal granted – applicant resentenced

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A, 16BA, 16E

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 47, 53A,

Criminal Appeal Act 1912 (NSW) ss 6, 6AA

Criminal Code (Cth) ss 11.2, 11.5, 302.2, 307.1, 307.2, 400.3

Customs Act 1901 (Cth) s 233BABAD

Judiciary Act 1903 (Cth) s 68

Sentencing Act 1991 (Vic) s 18

Cases Cited:

Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15

Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284

Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1

Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86

Dib v R [2016] NSWCCA 15

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

DS v R [2014] NSWCCA 267

Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22

Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76

Green v The Queen (2011) 244 CLR 462; [2011] HCA 49

Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193

Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45

Ibrahim v R [2022] NSWCCA 161

Johnson v The Queen [2004] HCA 15; 78 ALJR 616

Jomaa v R [2022] NSWCCA 112

Jones v The Queen (1993) 67 ALJR 376

Karpinski v R (2011) 32 VR 85; [2011] VSCA 94; 207 A Crim R 429

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25

Leeth v The Commonwealth (1992) 174 CLR 455; [1992]…

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Dib v Rex [2023] NSWCCA 243
Case
[2023] NSWCCA 243
Decision Date

CaseChat Overview and Summary

In the case of Dib v Rex, the appellant, Dib, sought to challenge the sentence imposed upon him for his involvement in a conspiracy to import a commercial quantity of a border-controlled drug, specifically MDMA, with a pure weight of 594.43 kilograms. The case was heard by the High Court of Australia. Dib argued that his sentence should be reduced or backdated to account for the wrongful imprisonment he experienced on unrelated charges, which he claimed should have been considered during his sentencing. Additionally, Dib argued that the consistency of sentences for federal offenders, when sentenced by state courts for offences against Commonwealth law, needed to be examined.

The central legal issue before the court was whether the sentence imposed on Dib should be altered to reflect the time he spent in custody on unrelated charges. The court also had to consider the implications of sentencing consistency for federal offenders in state courts. Furthermore, the court needed to determine if there was any basis to depart from the existing position in New South Wales regarding the treatment of wrongful imprisonment in sentencing.

The High Court of Australia found that there was no basis for departing from the existing position in New South Wales, which did not allow for the backdating of sentences or reductions to account for wrongful imprisonment on unrelated charges. The court emphasised the importance of maintaining consistency in sentencing and the need to respect the principles established by interstate authorities. The court also highlighted that the principle of parity in sentencing, which aimed to avoid manifest excesses, was not engaged in this case. Consequently, the court upheld the original sentence imposed on Dib and denied his appeal.

In light of the court's decision, Dib's appeal against his sentence was dismissed, and the original sentence was upheld. The court's ruling emphasised the importance of maintaining consistency in sentencing practices and respecting the established principles of interstate authorities. The court did not find any grounds for reducing or backdating Dib's sentence due to his wrongful imprisonment on unrelated charges.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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