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Ibrahim Jidah v R

Ibrahim Jidah v R

Case [2014] NSWCCA 269 28 November 2014

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Court of Criminal Appeal

New South Wales

Case Title: Ibrahim Jidah v R

Medium Neutral Citation: [2014] NSWCCA 269

Hearing Date(s): 10 and 11 April 2014

Decision Date: 28 November 2014

Before: Bathurst CJ; Fullerton J; Davies J

Decision:
1.Appeal against conviction dismissed.
2.Grant leave to appeal against sentence.
3.The sentence imposed in the District Court on 23 September 2011 on Count 6 on the indictment is quashed.
4.In lieu thereof, a sentence of imprisonment of 12 years and 6 months is imposed, commencing on 27 April 2010 and expiring on 26 October 2022, comprising a non-parole period of 8 years and 6 months and an additional term of 4 years.
5.The appellant will become eligible for release on parole upon the expiration of the non-parole period on 26 October 2018.

Catchwords: CRIMINAL - appeal - conviction - whether the elements for offence of supplying prohibited drug were contained in offence of possessing precursor where precursor and prohibited drug the same
CRIMINAL - appeal - sentence - whether interrelated nature of supply and possession offences considered in determining objective seriousness of supply offence
CRIMINAL - appeal - sentence - fact finding of sentencing judge - whether reasonable for judge to infer appellant's knowledge of size of drug enterprise

CRIMINAL - appeal - sentence - Muldrock error - conceded by Crown
CRIMINAL - appeal - sentence - parity - need to re-sentence to ensure relativity of appellant's role is reflected where co-offenders more senior in drug enterprise were resentenced

Legislation Cited: Criminal Appeal Act 1912 (NSW), s 6
Crimes (Sentencing Procedure) Act 1999 (NSW), Part 4 Div 1A
Drug Misuse and Trafficking Act 1983 (NSW), ss 3, 24A, 25, 33, 33AB and Sch 1

Cases Cited: Crystal Lee England v R [2009] NSWCCA 274
DS v R [2014] NSWCCA 267
Gill v R [2010] NSWCCA 236
Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
Lachlan Wilson v R [2014] NSWCCA 266
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168
Yousef Jidah v R [2014] NSWCCA 270

Category: Principal judgment

Parties: Ibrahim Jidah (Appellant)
Crown (Respondent)

Representation

- Counsel: Counsel:
I S McLachlan (Appellant)
I D Bourke / M England (Crown)

- Solicitors: Solicitors:
William O'Brien & Ross Hudson (Appellant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2008/76940

Decision Under Appeal

- Before: Frearson SC DCJ

- Court File Number(s): 2008/76940

JUDGMENT

THE COURT: On a joint indictment presented on 23 February 2011, Lachlan Wilson, DS, Ibrahim Jidah (the appellant), Yousef Jidah and Ryan Kapral were charged with a range of what might be described broadly as drug offences. ES, another person also involved in the alleged offences, pleaded guilty.
The charges against the appellant alleged contraventions of the Drug Misuse and Trafficking Act 1983 (NSW) (the DMT Act). The charges were as follows:
"Count 6
Between about 12 August 2008 and 14 August 2008 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ibrahim Jidah v R

Details

AGLC: Ibrahim Jidah v R [2014] NSWCCA 269
Case: [2014] NSWCCA 269
Decision Date: 28 November 2014

CaseChat Overview and Summary

The appeal before the court involved Ibrahim Jidah, who was convicted of various drug-related offences. The primary issue was whether the elements necessary for the offence of supplying a prohibited drug were included within the offence of possessing a precursor, where the precursor and the prohibited drug were the same substance. Jidah argued that his conviction should be quashed on the basis that the charge did not clearly set out the necessary elements for the offence of supplying the drug.

The court examined the legal issues regarding the charge's validity and whether the sentencing judge had appropriately considered the interrelated nature of the supply and possession offences in determining the objective seriousness of the supply offence. It was also necessary to assess whether the sentencing judge's findings were reasonable, specifically whether it was reasonable to infer that Jidah knew the size and scope of the drug enterprise. Additionally, the court had to address the impact of a procedural error, conceded by the Crown, and the need to re-sentence Jidah to ensure the relativity of his role in the drug enterprise was accurately reflected, given that his more senior co-offenders had already been resentenced.

The court found that the elements for the offence of supplying the drug were indeed contained within the charge of possessing the precursor, thus upholding the conviction. It was also determined that the sentencing judge had not erred in considering the interrelated nature of the offences, and the findings of fact were reasonable. Regarding the procedural error, the court concluded that it did not prejudice Jidah's case. Finally, the court ordered a resentencing to ensure that the relativity of Jidah's role within the drug enterprise was properly reflected, given the resentencing of his more senior co-offenders.

Orders