Elmir v R

[2023] NSWCCA 260

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Elmir v R [2023] NSWCCA 260

Hearing dates:

22 September 2023

Date of orders:

13 October 2023

Decision date:

13 October 2023

Before:

Gleeson JA at [1]
Walton J at [2];
Dhanji J at [3].

Decision:

(1)    Leave to appeal granted.

(2)    Appeal allowed.

(3)    Quash the sentence imposed in the District Court on 11 March 2022 and in lieu thereof sentence the applicant to a term of imprisonment for 20 years commencing on 8 August 2017 and expiring on 7 August 2037. Set a non-parole period of 12 years commencing on 8 August 2017 and expiring on 7 August 2029.

Catchwords:

CRIME – appeals – appeal against sentence – serious conspiracy to import drug offence – parity – disparity between applicant and co-offender – where co-offender’s sentence successfully appealed – justifiable sense of grievance – appealed allowed – applicant resentenced

Legislation Cited:

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Criminal Code 1995 (Cth)

Cases Cited:

Bahcekapiliv R [2020] NSWCCA 296

Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25

Fenech v R [2018] NSWCCA 160

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

Hung v R [2023] NSWCCA 172

Ibrahim v R [2022] NSWCCA 161

Jones v The Queen (1993) 67 ALJR 376

Kelly v R [2017] NSWCCA 256

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Clarke [2013] NSWCCA 260

R v Elmir [2022] NSWDC 317

R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381

R v Tisalandis [1982] 2 NSWLR 430

Smith v The Queen [2022] NSWCCA 123

Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Wood v R [2022] NSWCCA 84

Texts Cited:

D A Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann)

Category:

Principal judgment

Parties:

Steven Francis Fawaz Elmir (Applicant)
Rex (Respondent)

Representation:

Counsel:
T Game SC with A Francis (Applicant)
P McDonald SC with P McEniery (Respondent)

Solicitors:
Archbold Gittani Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Respondent)

File Number(s):

2017/252667

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of NSW

Jurisdiction:

Criminal

Citation:

R v Elmir [2022] NSWDC 317

Date of Decision:

11 March 2022

Before:

Yehia SC DCJ

File Number(s):

2017/00252667

JUDGMENT

1. GLEESON JA: I agree with Dhanji J

2. WALTON J:   I agree with the orders proposed by Dhanji J for the reasons given by his Honour.

3. DHANJI J:

Introduction

4. Steven Francis Fawaz Elmir (the applicant) seeks leave to appeal the severity of the sentence imposed on him by Yehia SC DCJ (as her Honour then was) in the District Court at Sydney on 11 March 2022. The application and any subsequent appeal are brought pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).

5. The applicant was sentenced with respect to an offence of conspiracy to import commercial quantities of border-controlled drugs, namely, 3,4-methylenedioxymethamphetamine (MDMA), cocaine, and methamphetamine, between 22 March and 8 August 2017, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). The maximum penalty for this offence is life imprisonment and/or 7,500 penalty units. Yehia DCJ, after applying a 25 percent discount related to the applicant’s plea, imposed a sentence of 24 years imprisonment, commencing on 8 August 2017, and set a non-parole period of 14 years expiring on 7 August 2031.

6. The sole ground of appeal on which the applicant seeks to rely is that he has a justifiable sense of grievance arising from the disparity between the sentence imposed on him and that imposed upon a co-offender, Mr Mustafa Ibrahim. At the time the applicant was sentenced, Mr Ibrahim had already been sentenced, and, indeed, had been sentenced by the same judge. Her Honour had express regard to considerations of parity when imposing sentence on the applicant. However, subsequent to sentencing the applicant, Mr Ibrahim was successful in his appeal brought in this Court against his sentence: Ibrahim v R [2022] NSWCCA 161. It is this circumstance that the applicant contends gives rise to his complaint based on the principles of parity. There is no issue that a legitimate sense of grievance can arise as a result of a later sentence imposed on a co-offender: Jones v The Queen (1993) 67 ALJR 376 at 377.

7. Mr Ibrahim was sentenced with respect to a number of serious offences in relation to which an aggregate sentence was imposed pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). At first instance, he was sentenced to a term of imprisonment for 30 years with a non-parole period of 18 years. The indicative sentence with respect to the offence of conspiracy to import commercial quantities of border-controlled drugs, namely, MDMA, cocaine, and methamphetamine, to which the applicant was also a party, (‘the common offence’) was imprisonment for 22 years and 6 months. On appeal, Mr Ibrahim was re-sentenced to an aggregate sentence of 25 years with a non-parole period of 15 years. The indicative sentence with respect to the common offence was stated as 19 years and 6 months.

8. The offences committed by Mr Ibrahim resulting in the aggregate sentence imposed on him and the corresponding indicative sentences are set out below at [25]. They are also set out in full in Ibrahim v R at [3]. That judgment should be read with the present judgment.

Factual background

9. Yehia DCJ’s sentencing judgment is available online: R v Elmir [2022] NSWDC 317.

10. The offence involved a “rolled up” charge which covered two essentially separate conspiracies, referred to as the first and second conspiracies. Central to the offence committed by the applicant and those committed by Mr Ibrahim, was the involvement of an undercover operative using the name “Zane”. The Crown case relied on his evidence in conjunction with extensive physical and electronic surveillance. Her Honour summarised the facts as follows (at [30]-[41]):

“30   During the investigation, Zane gradually built a relationship with [Ryan] Watsford. Thereafter, Mustafa Ibrahim was introduced to Zane by Watsford. Following this introduction, Watsford and Ibrahim built a relationship with Zane through the successful sale and distribution of smuggled cigarettes they purchased from Zane, provided and facilitated through Zane. It is not alleged that this offender was involved in these smuggled cigarette transactions.

31   In 2016, Zane informed Watsford that he had access to a ‘door’. In this context, a ‘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.

32   In November 2016, Ibrahim and Watsford also introduced Zane to Mostafa Dib, and they commenced arrangements to import large quantities of illicit substances (referred to as the ‘Syndicate One Drug Transaction’). It is not alleged that this offender was involved in these arrangements.

33   While the arrangements were being made for the Syndicate One Transaction, Ibrahim introduced Zane to this offender, an Australian citizen living in Dubai who Ibrahim represented as being a person who could source drugs. Ibrahim suggested to Zane that they offer of the services of Zane’s ‘door’ to the offender and his associates, the Dutch syndicate, for a 20% fee of the total amounts to be imported. Ibrahim facilitated the introduction of Zane and the offender online over encrypted Blackberry communications in March 2017 and then in person in Dubai in May 2017.

34   The offence for sentence is a ‘rolled up’ offence with two conspiracies:

Summary of the First Conspiracy

35   In April 2017, Zane raised with Ibrahim the prospect of purchasing MDMA from the offender’s associates, the Dutch syndicate. Zane and Ibrahim each decided to purchase 50kg of MDMA. Zane’s payment for 50kg of MDMA was handed over by Ibrahim with his own payment for his 50kg of MDMA to a third party, acting on behalf of this offender.

36   The drug commodities and amounts evolved throughout March to May 2017 and, ultimately, on 22 May 2017, Zane collected approximately 500kg of MDMA and 20 kg of cocaine in the Netherlands. The pure weight of MDMA was 392.95kg. The pure weight of cocaine is 15.77kg. This offender was to receive 80kg of MDMA (being 20% of the 320kg imported by the Dutch syndicate). The Dutch syndicate members were to receive 240kg of MDMA and 16kg of cocaine. Ibrahim and Zane were each to receive the 50kg purchased and an extra 30kg of MDMA and 2kg of cocaine as the “door” fee.

37   On 10 and 15 May 2017, Zane, Ibrahim and the offender met in Dubai. Zane and the offender had lengthy discussions about future importations that would be arranged through the ‘door’ service offered by Zane.

Summary of the Second Conspiracy

38   After Zane’s collection of the first load on 22 May 2017, the offender and Zane commenced preparations for the next load. At various times, Zane kept Ibrahim informed of the arrangements and negotiations which were undertaken with the offender.

39   The offender and Zane met in June 2017 to discuss the second load. The drug commodities and amounts were negotiated between the offender and Zane throughout May, June and July 2017 and, ultimately, on 18 July 2017, in the Netherlands, Zane’s representative collected approximately 498kg of MDMA, 116kg of cocaine and 15kg of methamphetamine (gross) from unknown members of the Dutch syndicate. The pure weights were 344.6 kg of MDMA, 91.87kg of cocaine, and 12.04kg of methamphetamine. Twenty percent of each drug was to be shared equally between Ibrahim and Zane, with the balance for the offender and the Dutch syndicate members.

40   It is unclear from the Statement of Facts as to the precise amount that was to go to the offender. It is reasonable to infer that he was to receive 20% in the same way that he did in the first conspiracy.

41   The following matters are agreed:

(a)   the earliest date of this offender’s involvement in the offending was from about 22 March 2017, and the overall duration of his involvement was about 4 ½ months;

(b)   the offender did not control the ‘door’;

(c)   there is insufficient evidence to establish beyond reasonable doubt that this offender personally produced or supplied the drugs from the point of manufacture;

(d)   there is insufficient evidence to establish beyond reasonable doubt that the offender was to receive the full share of the drugs allocated to him and his associates in the second transaction. As indicated above, it is reasonable to infer that his share was to be 20%, consistent with his share of the first transaction.”

Proceedings on sentence

11. The proceedings on sentence were heard on 28 October 2021 and 27 January 2022.

12. The Crown bundle contained the Crown sentence summary, a Court Attendance Notice, a statement of facts, the applicant’s criminal and custodial history, a procedural chronology, and the sentencing judge’s remarks on sentence in respect of Mr Ibrahim. Additionally tendered on behalf of the Crown was a bundle of Justice Health documents, two bundles of Corrective Services documents relating to two incidents during the applicant’s custody on 25 September 2020 and 28 December 2020 respectively, a statement of facts with portions highlighted, an email of Rani Young, and a confidential affidavit and exhibit. An affidavit of Peter Lennox of 29 January 2022 was also read.

13. Tendered on behalf of the applicant was a psychiatric report of Dr Kerri Eagle dated 21 October 2021, a letter written by the applicant, four character references, a certificate of compliance in work and safety, a certificate of attendance for an infection control awareness program, and a two-page document from Corrective Services. Affidavits of Leonie Gittani of 21 October 2021, 24 January 2022, and 27 January 2022 were also read.

14. The Crown and applicant also provided written submissions to the Court.

Remarks on sentence

15. Yehia DCJ, unsurprisingly, charactered the offending as “objectively very serious”. In making that assessment, her Honour noted that the offence consisted of a rolled-up offence covering the applicant’s participation in two separate, but related conspiracies. Her Honour also considered the “substantial” quantity and value of the drugs and noted that the particulars of the offending demonstrated a “high degree of criminality”, with each conspiratorial agreement involving planning and organisation with respect to which the applicant played a “pivotal role”. Her Honour noted that there was never a risk of large quantities of prohibited drugs being disseminated into the community, although observed that this was not a mitigating factor.

16. In assessing the objective gravity of the offence, Yehia DCJ made reference to the role of the undercover operative “Zane”. While her Honour accepted the applicant’s submission that the communications between Zane and the applicant reflected an eagerness on the part of Zane to import large quantities of drugs, her Honour was not persuaded that this evidenced any reticence in the applicant to do the same.

17. In respect of the applicant’s subjective case, the sentencing judge had regard to the applicant’s background including his exposure to repeated domestic violence perpetrated by his father against him and his mother. The applicant’s mother left the family home as a result of her own trauma and drug addiction and the applicant assumed a parenting role at a young age. Her Honour also noted that the applicant struggled to cope with the loss of his cousin and, as a result, began abusing drugs and alcohol at an early age. Her Honour observed that the applicant had reconnected with his mother recently and that she is committed to supporting him, along with his younger sister.

18. Yehia DCJ observed that the applicant and his wife met in high school, married in 2013 and share two daughters who were aged 9 and 6 years old respectively at the time of sentence. Her Honour observed that the applicant was described as a “loving” and “caring” father. Her Honour noted that, following the murder of his brother-in-law, the applicant moved to Dubai, fearing for his family’s safety and that it was at this time that the applicant became involved with the Dutch syndicate.

19. The sentencing judge had regard to the applicant’s education and employment history and accepted that the applicant remains committed to re-gaining employment following his release from custody. Based on the report of Dr Eagle, her Honour accepted he had a substance use disorder, in remission in a controlled environment, and found that the applicant is committed to leading a drug-free lifestyle.

20. In respect of the applicant’s mental health, her Honour noted that the applicant suffered a number of psychological vulnerabilities, including Dr Eagle’s opinion that he displays traits and behaviours consistent with Anti-Social Personality Disorder. While her Honour considered the relevance of the applicant’s mental health issues to his overall subjective case, his prospects of rehabilitation, and the need for assistance upon his release, her Honour was not persuaded that the applicant’s mental health was causally connected to the offending, so as to reduce his moral culpability.

21. The sentencing judge took into account the extra-curial punishment suffered by the applicant. Her Honour had regard to the applicant’s custody in Dubai for two years and three months following his arrest and prior to his extradition. His inability to obtain bail was, apparently, due to an outstanding civil debt. Her Honour noted that, during the first four days following his arrest in Dubai, the applicant was beaten and tortured. His genitals were tasered, and he was assaulted by officers who demanded that he sign a document written in Arabic (which the applicant did not understand). Her Honour found that, thereafter, the applicant was held “in deplorable conditions which included overcrowding, no exercise, and no sunlight”. Her Honour accepted that the applicant was left in a state of uncertainty that caused him physical deterioration and mental anguish. Her Honour noted that Dr Eagle had diagnosed the applicant with Post-Traumatic Stress Disorder (PTSD), arising from his experiences while incarcerated in Dubai, and had regard to Dr Eagle’s opinion that the symptoms of the applicant’s PTSD were likely to be exacerbated in any correctional setting.

22. Her Honour also considered the related issue of delay. Her Honour was not of the view that the delay in extradition was the fault of the applicant, and her Honour took into account the state of uncertainty experienced. However, her Honour also noted that this matter had been considered in the context of extra-curial punishment, and consequently exercised caution in the weight to be given to delay.

23. The sentencing judge found that the applicant was remorseful for his actions, having acknowledged the significant harm drugs cause to individuals and the community. Her Honour noted the applicant’s criminal record which included offences of assault occasioning actual bodily harm in company, affray, and possession of an unregistered firearm, however, observed that the applicant did not have any prior convictions for serious drug offending and found his record was not, as a result, aggravating. Her Honour also found that the applicant had participated in two incidents in custody involving violence but considered that to not be “the whole picture”, noting that he had demonstrated a willingness to participate in meaningful and productive activities while in custody. Ultimately, her Honour found the applicant to have “some prospects of rehabilitation”.

24. Her Honour took into account the onerous conditions of custody during the COVID-19 pandemic, considered the parity principles in respect of Mr Ibrahim (discussed in more detail below), and then imposed the sentence set out above.

Mr Ibrahim’s offences

25. Having regard to the ground of appeal and the argument put forward in support of the ground, it is necessary to set out the details of Mr Ibrahim’s sentence. The aggregate sentence imposed on Mr Ibrahim related to a number of offences, with respect to which the indicative sentences were as follows:

Offence	Indicative sentence (DC)	Indicative sentence (CCA)
The common offence: Conspiracy to import commercial quantities of border controlled drugs being 392.95 kilograms of MDMA [and 15.77 kilograms of cocaine] in the first transaction forming part of the conspiracy, and 344.6 kilograms of MDMA, 91.87 kilograms of cocaine and 12.04 kilograms of methamphetamine in the second transaction in the conspiracy. An offence of aid, abet, counsel or procure the commission of an offence of trafficking a commercial quantity of MDMA was taken into account on a s 16BA Schedule	22 years and 6 months imprisonment	19 years and 6 months imprisonment
Conspiracy to import a commercial quantity of a border controlled drug, namely, 594.43 kilograms of MDMA	21 years imprisonment	18 years imprisonment
Deal with instrument of crime, namely $2,863,870	7 years and 6 months imprisonment	7 years and 6 months imprisonment
Deal with instrument of crime, namely, $1,800,000. Offences of importing tobacco products with the intention of defrauding the revenue and deal in the proceeds of crime where the value of the money was $1,000,000 or more were taken into account on a s 16BA Schedule	8 years and 6 months imprisonment	8 years and 6 months imprisonment
Deal with instrument of crime, namely, $2,224,540	6 years imprisonment	6 years imprisonment
Aggregate sentence	30 years imprisonment	25 years imprisonment

26. It is unnecessary to set out further detail of Mr Ibrahim’s offences. That detail was set out by Davies J in Ibrahim v R at [6]-[24]. As noted above, the resulting aggregate sentence on appeal was 25 years with a non-parole period of 15 years.

Determination

The principle of parity

27. The principle of parity is well known. In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49, French CJ, Crennan and Kiefel JJ said (at [28]-[29] and [31]):

“28    ‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order.’ It has been called ‘the starting point of all other liberties.’ It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen:

‘Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect.’ (Emphasis in original.)

Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.

29    General concepts of ‘systematic fairness’ and ‘reasonable consistency’ in sentencing, as an aspect of the administration of federal criminal justice, were discussed in Hili v The Queen. They apply to persons charged with similar offences arising out of unrelated events. The consistency they require is ‘consistency in the application of the relevant legal principles, not some numerical or mathematical equivalence.’ That kind of general consistency is maintained by the decisions of intermediate courts of appeal. The consistency required by the parity principle is focussed on the particular case. It applies to the punishment of ‘co-offenders’, albeit the limits of that term have not been defined with precision.

…

31    Because appeals are creatures of statute, the parity principle in appeals against sentence arises in a statutory context. The jurisdictions to entertain such appeals, conferred by statutes on courts of criminal appeal in Australia, are supported by powers to increase or reduce sentences affected by appealable error. In the exercise of those powers in appeals by convicted persons, and subject to the applicable sentencing statutes, a court may ‘reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender’. The exercise of the statutory discretion is informed by the common law norm. Gibbs CJ said in Lowe v The Queen: ‘the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done.’ The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.” (footnotes omitted)

Application of the parity principle to the present case

28. There is no doubt that an indicative sentence can provide the basis for a justifiable sense of grievance: Ibrahim v R at [86]; R v Clarke [2013] NSWCCA 260 at [68]; Smith v The Queen [2022] NSWCCA 123 at [48]. The reason for requiring indicative sentences is to maintain the discipline of setting individual sentences to achieve a proper total sentence in accordance with Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [45]. One of the advantages of setting individual sentences in this manner is to allow proper comparison for the purposes of parity: Pearce v The Queen at [48].

29. In determining the present sentence, the sentencing judge had express regard to the issue of parity as between the applicant and Mr Ibrahim. Her Honour noted the indicative sentence recorded with respect to Mr Ibrahim and noted that this was in the context of a 25 percent discount with respect to his plea of guilty. Her Honour noted the applicant was entitled to the same discount and continued (at [148]-[150]):

“144   For the reasons set out above, I have determined that the role of this offender in that offence was more significant than that of Mr Ibrahim. This is a distinguishing factor operating against the offender.

145   However, there are a number of distinguishing factors that operate in his favour, and which I have taken into account in applying the parity principle. Those distinguishing factors are as follows:

(1)   In recording the indicative sentence in Mr Ibrahim’s case, I took into account an offence recorded on a s 16BA schedule, which was a serious offence of aiding and abetting the commission of an offence, namely, the trafficking of a commercial quantity of MDMA, itself attracting a maximum penalty of life imprisonment. That is not the case here;

(2)   I am satisfied that this offender’s subjective case is more compelling. He experienced a childhood marred by deprivation and disadvantage and his mental health issues, although not causally connected to the offending conduct, require ongoing treatment upon his release;

(3)   Mr Ibrahim’s criminal record was far worse than this offender’s criminal history. It includes convictions for the possession of unauthorised firearm; the possession and supply of prohibited drugs; and manslaughter. Since 2002, until the time he was sentenced by me, Mr Ibrahim had spent approximately 14 years of his life in prison; and

[REDACTED]

150   For these reasons, although I am satisfied that this offender’s role in the offence was more significant than that of Ibrahim, there will be little difference in the sentence I impose given the distinguishing factors that favour this offender.”

30. Despite the sentencing judge having paid careful attention to issues of parity, and making no criticism of her Honour’s application of the principle, the respondent submits that a reduction to Mr Ibrahim’s sentence, including the reduction of 3 years to the indicative sentence with respect to the common offence, would not, if left to stand, engender a justifiable sense of grievance in the applicant. The submission should be rejected. While much has been written with respect to parity, in the vast majority of cases, its application is relatively simple. It is difficult to see how, after a proper consideration of parity at first instance, the differentiation resulting from the sentence imposed on Mr Ibrahim by this Court could be explained to the applicant without him harbouring a sense of unfairness. That sense of grievance would be, to my mind, justifiable noting the test is objective, and not the applicant’s subjective view.

31. The respondent’s argument was based on an analysis of this Court’s reasons for intervention in Ibrahim v R, and, in particular, the reasons for determining that the indicative sentence for the common offence committed by Mr Ibrahim, was manifestly excessive. It was submitted that this conclusion was primarily based on the significance placed by this Court on the finding that Mr Ibrahim was not “contemplating or engaging in drug-related activity before the opportunity was presented to him by UCO Zane”: Ibrahim v R at [110]. The respondent’s contention was that as this was not a relevant consideration in the case of this applicant, the reduction in Mr Ibrahim’s sentence should not have any impact on the applicant’s sentence. The difficulty with the submission is that it is not possible to make a finding of manifest excess (or inadequacy) based on a single factor. A sentence is, or is not, excessive based on a consideration of all relevant factors.

32. The respondent’s difficulty referred to above is exacerbated by the fact that in Ibrahim v R, arguments (expressed in various ways in grounds 1, 2, and 3 on the appeal) that the sentencing judge erred in failing to properly take into account the role of UCO Zane in the determination of Mr Ibrahim’s sentence, were rejected. It does not appear that any regard was had to the rejection of the specific grounds of appeal in Ibrahim v R in the formulation of the respondent’s argument. In any event, this Court must proceed on the basis that, in the absence of any specific error in Mr Ibrahim’s sentence, and with no complaint about the primary judge’s consideration of the principles of parity, the differential between the applicant’s sentence and Mr Ibrahim’s corresponding indicative sentence has gone from 1.5 years to 4.5 years, an increase of 3 years. While, as Rothman J (with whom Hoeben CJ at CL and N Adams J agreed) neatly put it in Bahcekapiliv R [2020] NSWCCA 296 (at [7]) “[t]here is, in this area, as with sentencing generally, no one correct sentence and no one correct relationship”, the increase of 3 years between the sentences, represents a significant disruption to the sentencing judge’s assessment of what was required to achieve parity between the applicant and Mr Ibrahim.

33. When regard is had to the respective involvements of the applicant and Mr Ibrahim, the matter taken into account on the schedule in Mr Ibrahim’s case and their subjective cases, the adjustment to Mr Ibrahim’s indicative sentence with respect to the common offence has produced a marked disparity: see Fenech v R [2018] NSWCCA 160 at [30]; Hung v R [2023] NSWCCA 172 at [32]. I am satisfied the applicant has a justifiable sense of grievance. I have reached this view based only on the indicative sentence recorded with respect to Mr Ibrahim for the common offence and without regard to any additional impact resulting from the application of the totality principle in his case. I will return to that matter in the context of re-sentencing.

Resentence

The evidence on re-sentence

34. While the applicant has succeeded based on an issue of proportionality between his sentence and that imposed on Mr Ibrahim, he is entitled to have his sentence redetermined in light of any available evidence relevant to resentence, and the current state of the law. With respect to this last matter, it is noted that subsequent to the sentencing of the applicant, this Court handed down its decision in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, which affects the manner in which hardship to third parties may be taken into account in accordance with s 16A(2)(p) of the Crimes Act 1914 (Cth).

35. The applicant relied upon the following material in the event of resentence:

1. an affidavit of the applicant affirmed 5 September 2023;

2. affidavits of Emma Elmir affirmed 5 September 2023 and 7 September 2023;

3. an affidavit of Ms Gittani sworn 7 September 2023; and

4. a supplementary psychiatric report of Dr Eagle dated 7 August 2023.

36. Some of the evidence relates to the impact of the applicant’s incarceration on his family, including the period prior to sentence. This evidence was put forward on re-sentence on the basis that, as I understand it, while it pre-dates the applicant’s sentencing (cf Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25), the law with respect to its relevance has changed as a result of the decision in Totaan v R. It is, thus, not evidence of things that have occurred since sentence, but rather evidence of things which have become relevant since sentence. In the absence of any objection or argument, I propose to have regard to this evidence.

37. In short, the material establishes that the applicant’s time in custody, both initially in Dubai and since his extradition to Australia, has been challenging and upsetting for the applicant’s wife and their two young daughters. The applicant’s wife explains that the limited contact has impacted their daughters’ relationships with the applicant, that they worry about their father’s welfare, and miss him at important times and events.

38. The material also updates the Court as to the applicant’s conditions and health in custody since his sentencing. In his affidavit, the applicant explains that the COVID-19 pandemic lock-ins continued in 2022, and contact with his family was severely disrupted. He also states that while suffering from COVID-19 and feeling “extremely sick”, he was not provided medication or medical assistance. The applicant also states that he has completed two courses in custody but has been unable to undertake meaningful courses due to limitations at the correctional facility where he is imprisoned. He states that he is attempting to transfer prisons so as to complete a building and project management course.

39. In her supplementary report, Dr Eagle states that the applicant continues to satisfy the criteria for a diagnosis of PTSD, and continues to experience nightmares, sleep disturbance, and anxiety in the context of triggers related to his traumatic experiences in Dubai. Dr Eagle opines that the applicant’s nightmares and symptoms relating to PTSD as a result of his experiences in Dubai would have been exacerbated as a result of the COVID-19 lock-ins.

40. The respondent relied on an affidavit of Bethany Carus Debenham affirmed 14 September 2023. Annexed to Ms Debenham’s affidavit was the applicant’s criminal record, and a Court Attendance Notice and Police Facts relating to an offence of common assault, committed by the applicant in January 2022 while in custody. The applicant’s record indicates that he received a term of 10 months imprisonment for this offence, commencing on 21 January 2023 and expiring on 20 November 2023.

The relevance of the application of totality to Mr Ibrahim’s sentence

41. The aggregate sentence imposed on Mr Ibrahim was the result of the application of the totality principle. The totality principle requires that when sentences are imposed for multiple offences, it is necessary that the aggregation of those sentences is a “just and appropriate” measure of the total criminality involved in their commission: D A Thomas, Principles of Sentencing (2nd ed, 1979, Heinemann) at 56-57, as cited in Mill v The Queen (1988) 166 CLR 59 at 62-63; [1988] HCA 70; and see also Postiglione v The Queen (1997) 189 CLR 295 at 307-8; [1997] HCA 26; R v MAK; R v MSK (2006) 167 A Crim R 159; [2006] NSWCCA 381 at [15].

42. The applicant submitted that it is not sufficient, in the circumstances of this case, to determine the applicant’s complaint simply by a comparison of the applicant’s sentence with Mr Ibrahim’s indicative sentence for the common offence. This is because the indicative sentences for the various offences committed by Mr Ibrahim demonstrate that the actual impact of any punishment resulting from the common offence was significantly attenuated. That does not mean, however, that the applicant’s sentence is to be compared with the period of time by which Mr Ibrahim’s sentence was actually extended by the common offence, even if that was capable of calculation. On the other hand, the application of the totality principle is not “a complete answer” to a complaint based on parity: Kelly v R [2017] NSWCCA 256 at [26] (per Beech-Jones J (as his Honour then was), Basten JA and Fagan J agreeing). A more subtle analysis is required. That analysis must also take into account the fact that the applicant’s sentence also incorporates a wholly concurrent sentence – that which was subsequently imposed in the Local Court for common assault.

43. The applicant, in oral argument, relied on the High Court’s application of the principles of parity and totality in Postiglione v The Queen. In Wood v R [2022] NSWCCA 84, I referred to Postiglionev The Queen and noted that some subtlety is required when drawing comparisons between a single sentence and a sentence imposed for involvement in the same offence imposed together with sentences for other offences. In Wood v R, I set out the following from the reasons of Beech-Jones J in Kelly v R (at [33]):

“A number of cases in this Court have considered the circumstance under consideration here, namely a claim of a lack of parity between a sentence imposed on a co-offender who was sentenced for multiple offences and received the benefit of the totality principle and another offender who did not, including [Bell v R [2008] NSWCCA 206], Tran v Regina [2006] NSWCCA 266 (‘Tran’); Ayik v Regina [2013] NSWCCA 119 (‘Ayik’) and [El-Helou v R [2014] NSWCCA 209]. Consistent with Postiglione in each of these four cases the Court took into "account" the actual gaol time served by each of the offenders solely referable to the common offence. However, the weight attributed to that factor varied, none of the cases considered that it was determinative and in each case, the Court did not engage in a strict mathematical comparison between the time served by the co-offender that was solely referable to the common offence and the non-parole period imposed on the applicant for leave to appeal (Bell at [40]; Tran at [24]; Ayik at [33] to [36]; El-Helou at [30]). Instead, the Court considered all the components of the sentences that were being served including the sentences being served for unrelated offences committed by the co-offender. This is illustrated by considering Ayik and El-Helou.”

44. After a detailed analysis of the bases of the decisions in the cases referred to in the above passage, Beech-Jones J concluded (at [39]), and consistent with the reasons of Dawson and Gaudron JJ in Postiglione v The Queen, what must ultimately be compared is “all the components of the sentence for all the offences that each of the offenders is serving and the circumstances of the common and unrelated offending of the co-offender”.

45. Having regard to what I have said above and the manner in which the present matter was argued, it is appropriate to resentence the applicant with a view to addressing the unjustifiable disparity between the sentence imposed upon him and the indicative sentence with respect to the common offence imposed on Mr Ibrahim. It is also necessary to consider the actual effect of the sentences for the common offence as a result of sentences (or indicative sentences) imposed for other offences. I note that the discount for the plea of guilty is built into the analysis given the applicant and Mr Ibrahim were both entitled to a discount of 25 percent for their respective pleas.

46. I adopt the findings of the sentencing judge. In addition, I have had regard to the evidence of events postdating the applicant’s sentence as well as evidence establishing hardship occasioned to the applicant’s family as a result of the sentence (including the period from which the sentence will be taken to commence) in accordance with this Court’s decision in Totaan v R. Additionally, I have had regard to the relationship between the sentence imposed on the applicant with respect to the common offence, the concurrent sentence later imposed on him, and the indicative sentence with respect to Mr Ibrahim for the common offence in the context of the whole of his offending. While Mr Ibrahim received a significant benefit as a result of the application of the principle of totality, this was in the context of the imposition of a very long sentence. It is to be recalled that the severity of a sentence is not simply a product of a linear relationship with its length: R v MAK; R v MSK at [16]. Additionally, having regard to the seriousness of the applicant’s offending, there are limits on the extent to which any sentence can be reduced while still remaining appropriate in all the circumstances: Crimes Act, s 16A(1). (I do not mean, in the foregoing, to suggest that a sentence imposed on a co-offender is may not be a “circumstance” within the meaning of s 16A(1): see in this regard the analysis of Street CJ in R v Tisalandis [1982] 2 NSWLR 430 and see Green v The Queen; Quinn v The Queen at [33]).

44. Having regard to the above matters, I am of the view the appropriate sentence is one of 20 years with a non-parole period of 12 years.

Proposed Orders

48. I propose the following orders:

1. Leave to appeal granted.

2. Appeal allowed.

3. Quash the sentence imposed in the District Court on 11 March 2022 and in lieu thereof sentence the applicant to a term of imprisonment for 20 years commencing on 8 August 2017 and expiring on 7 August 2037. Set a non-parole period of 12 years commencing on 8 August 2017 and expiring on 7 August 2029.

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Decision last updated: 13 October 2023