Harrison J at [1] Davies J at [2] Hallen J at [126]
Decision:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the sentence imposed in the District Court of New South Wales on 20 May 2020.
4. In lieu, sentence the appellant to an aggregate sentence of 25 years commencing 8 August 2017 and expiring on 7 August 2042 with a non-parole period of 15 years expiring 7 August 2032.
Catchwords:
CRIME – appeals – appeal against sentence – conspiracy to import commercial quantity of MDMA – tobacco smuggling – Commonwealth offences – aggregate sentence - whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – where sentencing judge found applicant was willing and trusted participant who expected significant financial gain – where sentencing judge did not err in finding that involvement of undercover operative did not substantially diminish applicant’s culpability – principles of sentencing offenders involved in controlled operations – relevance of specific and general deterrence in controlled operations – discount of 25% afforded for applicant’s guilty plea – where discount was appropriate – issues of parity with co-offender –where applicant could have no justifiable sense of grievance – whether aggregate sentence manifestly excessive – where undiscounted indicative sentences fell outside range of reasonable sentences in circumstances of offending – where notional accumulation was unreasonable – appeal against sentence allowed – imposition of aggregate sentence for multiple Commonwealth offences – applicant re-sentenced
[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.
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AGLC
Ibrahim v R [2022] NSWCCA 161
Case
[2022] NSWCCA 161
Decision Date
CaseChat Overview and Summary
In the High Court of Australia, the case of Ibrahim v R involved an appeal against a sentence imposed on the appellant for his involvement in a conspiracy to import a commercial quantity of MDMA and tobacco smuggling, both of which are Commonwealth offences. The appellant argued that his culpability was significantly diminished due to his participation in an undercover operation and the role of an undercover operative. The High Court was tasked with determining the legal principles governing sentencing in controlled operations and whether the involvement of an undercover operative warranted a reduction in culpability. Additionally, the Court needed to assess whether the aggregate sentence was manifestly excessive and whether the discount for the appellant's guilty plea was appropriate.
The Court considered the principles of sentencing offenders involved in controlled operations, recognising that such operations can often distort the offender's culpability. However, the Court found that the appellant was a willing and trusted participant who expected significant financial gain, and thus, the involvement of an undercover operative did not substantially diminish his culpability. The Court emphasised that specific and general deterrence are relevant considerations in sentencing offenders in controlled operations. The sentencing judge appropriately applied a 25% discount for the appellant's guilty plea, which the Court deemed appropriate. The Court also noted that the appellant could have no justifiable sense of grievance regarding parity with his co-offender. Ultimately, the Court found that the undiscounted indicative sentences fell outside the range of reasonable sentences in the circumstances of the offending, and the notional accumulation was unreasonable.
Consequently, the High Court allowed the appeal against the sentence. The Court determined that the aggregate sentence for multiple Commonwealth offences was manifestly excessive. The appellant was re-sentenced, reflecting the principles and considerations outlined in the Court's reasoning. The Court's decision underscores the importance of carefully considering the role of undercover operatives and the offender's culpability in controlled operations when determining an appropriate sentence.