Ibrahim v The Queen

[2019] NSWCCA 188

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Ibrahim v R [2019] NSWCCA 188

Hearing dates:

1 April 2019

Date of orders:

15 August 2019

Decision date:

15 August 2019

Before:

Bathurst CJ at [1]; Price J at [80]; N Adams J at [81]

Decision:

(1)   Grant the applicant an extension of time for notice of application for leave to appeal up to and including 18 February 2019.
(2)   Grant the applicant leave to appeal.
(3)   Appeal allowed.
(4)   Quash the sentence imposed on the applicant and in lieu thereof sentence the applicant to a term of imprisonment of 8 years and 6 months to commence on 9 December 2014 with a non-parole period of 5 years and 9 months expiring on 8 September 2020 and a balance of term of 2 years and 9 months expiring on 8 June 2023.
(5)   The earliest date the applicant will be eligible to be released on parole is 8 September 2020.

Catchwords:

CRIME – Firearms offences – Conspiracy to unlawfully supply pistols or prohibited firearms

 

SENTENCING – Appeal against sentence – Co-offenders – Discount for plea of guilty – Co-offenders received discount for plea of 15% - Applicant received discount for plea of 10% - Applicant’s plea entered shortly after

 

SENTENCING – Appeal against sentence – Assessment of criminality – Whether findings of fact available on evidence

  SENTENCING – Appeal against sentence – Non-parole period – Ratio of the non-parole period and balance of term - Finding of special circumstances – Partial Accumulation of sentence upon previously imposed sentence – Non-parole period marginally less than statutory ratio

Legislation Cited:

Criminal Code (Cth)
Firearms Act 1996 (NSW)

Cases Cited:

Borg v R [2019] NSWCCA 129
El-Ahmad v R [2015] NSWCCA 65
Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
PG v R [2017] NSWCCA 179
R v Fidow [2004] NSWCCA 172
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
R v Sutton [2004] NSWCCA 225
Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25
Tyler v The Queen (2007) 173 A Crim R 458

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Hassan Sam Ibrahim (Applicant)
The Crown (Respondent)

Representation:

Counsel:
P Lange (Applicant)
M Cinque SC (Respondent)

  Solicitors:
Hanna Legal (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2014/97928

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Common Law

Citation:

Nil

Date of Decision:

16 February 2018

Before:

Judge Blackmore SC

File Number(s):

2014/97928

HEADNOTE

[This headnote is not to be read as part of the judgment]

Hassan (Sam) Ibrahim (the applicant) pleaded guilty to a charge of conspiring to unlawfully supply pistols or prohibited firearms contrary to the common law. Following the applicant’s guilty plea, the applicant was sentenced to a term of imprisonment of 9 years with a non-parole period of 6 years and 6 months. The sentencing judge backdated the sentence to commence on 8 December 2014 as at the time of his sentence, the applicant was serving an 18 month term of imprisonment for an unrelated offence on 9 April 2014 and expired on 8 October 2015. The applicant was to be released on recognisance for the unrelated offence on 8 February 2015.

The objective of the conspiracy was to supply pistols to a purchaser who was in fact an undercover police operative. There were four co-conspirators: the applicant, Mr Paul DeMarco, Mr Elvis Mileski and Ms Jazz Dior. Mr Mileski and Ms Dior entered pleas of guilty on 14 November 2016, and Mr DeMarco on 16 November 2016. They each received a discount of 15% for their plea. The applicant submitted his plea of guilty on 17 November 2016 and received a discount of 10%.

In sentencing remarks, the sentencing judge found that the applicant was “the controlling mind” of the conspiracy, “the essential beneficiary” and the most “significant participant”. The sentencing judge also made a finding of special circumstances.

The applicant appealed against his sentence. Two of the applicant’s grounds of appeal related to the failure of the sentencing judge to give the same discount to the applicant for his plea of guilty as was given to the co-offenders. The Crown conceded that the sentencing judge erred in failing to give the applicant the same discount for his guilty plea as was given to the other co-offenders.

There were two main issues on appeal.

1.Whether the sentencing judge erred in his assessment of the applicant’s criminality by making findings of fact that were not available on the evidence?

2.Whether the sentencing judge erred by failing to give effect to the finding of special circumstances where the partial accumulation of the sentence upon a previously imposed sentence resulted in an effective overall non-parole period that was only marginally less than the statutory ratio?

Error in the assessment of the applicant’s criminality

(i)  It was open to the sentencing judge on the evidence to find that the applicant was “the moving party” behind the conspiracy and that the applicant was funding the purchase of the pistols. However, the sentencing judge erred in finding that the applicant was “the essential beneficiary” of the conspiracy as there was insufficient evidence of the proposed division of the proceeds to justify this conclusion beyond reasonable doubt. It was therefore unnecessary to conclude whether the sentencing judge erred in concluding that the applicant was “the controlling mind”: [49]-[59] (Bathurst CJ); [80] (Price J); [81] (N Adams J).

R v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; PG v R [2017] NSWCCA 179; Borg v R [2019] NSWCCA 129; Tyler v The Queen (2007) 173 A Crim R 458 referred to.

Error in failing to give effect to a finding of special circumstances

(ii) In considering the appropriate non-parole period, the sentencing judge erred in failing to take into account the fact that the sentence was being accumulated on the sentence for the previous offence. The sentencing judge indicated an intention to vary the statutory proportion but failed to do so in any meaningful respect as the adjustment after accumulation was taken into account was marginally more than one month: [67]-[70] (Bathurst CJ); [80] (Price J); [81] (N Adams J).

Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25; R v Fidow [2004] NSWCCA 172; R v Sutton [2004] NSWCCA 225; El-Ahmad v R [2015] NSWCCA 65 referred to.

In resentencing the applicant to a term of imprisonment of 8 years and 6 months, with a non-parole period of 5 years and 9 months, the Court allowed for a discount for the applicant’s plea of guilty of 15% and a reduction in the statutory ratio to 70% of the total sentence.

Judgment

1. BATHURST CJ: The applicant Hassan (Sam) Ibrahim pleaded guilty to a charge of conspiring to unlawfully supply pistols or prohibited firearms contrary to the common law. He was sentenced on 16 February 2018 to a term of imprisonment of 9 years, comprising a non-parole period of 6 years and 6 months and a balance of term of 2 years and 6 months. At the time of his sentence, the applicant was serving a term of imprisonment for the offence of using a carriage service to threaten to kill, contrary to s 474.15(1) of the Criminal Code (Cth). That sentence was for a period of 18 months commencing on 9 April 2014 and expiring on 8 October 2015, with the applicant to be released on recognisance on 8 February 2015. In the circumstances, the sentencing judge backdated the sentence to commence on 8 December 2014.

2. It should be noted the applicant was in custody from 1 April 2014 until 16 June 2014 when he was on “Appeal bail” and returned to custody on 27 June 2014. The applicant has been in continuous custody since that date, being in custody solely on the matter the subject of the present appeal from 8 February 2015.

The circumstances surrounding the offence

3. The objective of the conspiracy was to supply ten Glock pistols which was subsequently reduced to five Glock pistols to a purchaser who was in fact an undercover police operative. The facts were adequately set out in the remarks on sentence of the sentencing judge and they may be summarised as follows.

4. There were four co-conspirators: the applicant, a Mr Paul DeMarco, a Mr Elvis Mileski and a Ms Jazz Dior. The latter two conspirators were in a de facto relationship and were the owners of a business Clear View Car Wash and a Lounge which was located in Warilla. Ms Dior was the youngest sister of the applicant.

5. Between October 2013 and March 2014, 13 firearms were supplied by Mr DeMarco to a police undercover operative. These were not the firearms the subject of the conspiracy.

6. On a number of occasions in January 2014, Mr DeMarco offered to supply various other firearms to an undercover operative. According to the agreed statement of facts, lawfully intercepted phone conversations and surveillance device recordings between 4 January 2014 and 25 March 2014 established that “Ibrahim actively planned and organised for Mileski and Dior to obtain firearms to provide them to DeMarco so that he, in turn, could supply them to the UCO [undercover operative]. The negotiations ultimately resulted in an agreement to supply five Glocks, although this never eventuated”.

7. On 4 January 2014, Mr DeMarco supplied the undercover operative with a Smith and Wesson brand pistol. The undercover operative said that he would like some more. Mr DeMarco informed the undercover operative that he would have approximately 15 or 20 of them from other people and there was a box of 10 coming. The undercover operative asked “These ten, they’re from your mate Sam?” and Mr DeMarco said “Yep, but don’t say nothing”. Mr DeMarco told the undercover operative that he would give him plenty of warning when the guns were ready and that they would be “big ones, probably some 45s and 9 mils”.

8. On 14 January 2014, Mr DeMarco and the undercover operative made a number of telephone contacts where they arranged meetings for the supply of the firearms. On 16 January 2014, Mr Mileski used Ms Dior’s telephone to speak to the applicant. The applicant asked Mr Mileski what was happening and Mr Mileski told him that nothing had happened yesterday but that in one or two days he would be happy. Between 17 and 19 January 2014, there were a number of telephone contacts between Mr DeMarco and the undercover operative, Mr Demarco and the applicant, and the applicant and Ms Dior making arrangements to meet one another.

9. On 19 January 2014, Mr DeMarco supplied the undercover operative with 2 millimetre parabellum calibre submachine guns with silencers attached. The undercover operative asked, “Is this coming from your mate Sammy?” to which Mr DeMarco replied, “No, this is coming from overseas”. The undercover operative and Mr DeMarco then discussed the possible supply of either Glocks or Berettas.

10. On 6 February 2014, at a meeting between the undercover operative and Mr DeMarco, Mr DeMarco said, “We are just waiting for … two Glocks brand new”. He also said, “There’s also the box still, we haven’t got them yet” and that he was waiting for them to come.

11. On 12 February 2014, the undercover operative was told by Mr DeMarco that there were two Glocks and two Berettas coming and available and that, “We’ve been waiting for a few weeks now”.

12. On the same day, Mr Mileski and Ms Dior had a lengthy conversation. The substance of their discussions which appeared in the agreed statement of facts was set out in the judgment of the sentencing judge:

She needed to tell Sam that he needs another $23,000 because he’s got “six brand new things in boxes for him”.

“I’ve got to hire a car – he’s gonna have to pay for that, too – and I’ve got to pick them up. I’ll need money for Saturday for them. I need another $23,000.”

That money is in addition to the $10,000 he already has.

They cost five and a half each brand new but that “we’ll sell them for whatever you want. Either he’ll give us something or just put fucking six and a half on them.”

“They’re not what we asked for” but they are the same as those “those first ones … the personal one”.

He’s going to use “Sam’s money” for some of the things but keep it for “these other ones”.

There were ten of them but “they [the individuals with whom Mileski was negotiating] flogged the others”.

13. On the same day, Mr Mileski and Ms Dior had a further conversation discussing the items which were available and whether they were to be given to an unknown person named Mick or to Sam. Mr Mileski told Ms Dior there were now seven firearms and that he only wanted to sell six and keep one for himself. Ms Dior is recorded as replying, “All right, so there’s six for Sam?” and “So I’m going to tell Sam now”.

14. Thereafter on the same evening, there were a series of telephone calls between Ms Dior and the applicant. The applicant is recorded as telephoning Ms Dior and saying to her, “You know how you told me about that thing before … Get the lot … Tell them, tell them we’ll buy all of it … cause you know what, you can use them for your car wash”.

15. Between 15 and 17 February 2014, there were further discussions and text messages between the co-conspirators and the undercover operative regarding delays experienced in sourcing the firearms.

16. On Friday 21 February, the undercover operative met Mr DeMarco and Mr DeMarco gave him the following information:

“I just spoke to him about 10 minutes ago and I’m going to meet him over at my mate’s place to find out what’s goin on”.

“It’s five of em, I know, not ten now. It’s five of them and there’s five Glock, Glocks coming … only five … I can’t do anything about it … That’s what he tells me, and then it gets changed”.

“I, you can’t do anything till it gets here … What do I say today if it’s not here. I’ll say, Sam, you’re making me look like fucking idiot.”

17. That evening, Ms Dior informed the applicant in a telephone conversation that there had been a delay. Ms Dior requested, “Just give him two more days … He had to go all the way to Melbourne too, don’t forget”.

18. On 23 February 2014 in a telephone conversation, Mr Mileski explained to the applicant that he needed a few more days. Later in the afternoon, a further conversation took place between the applicant, Mr Mileski and Ms Dior in which Mr Mileski explained that he was down in Melbourne for two days and it was taking him a while to arrange everything. The applicant was recorded as replying, “Mate, listen. You’ve been, you, you’ve been there all week, all right?” He was also recorded as saying that Mr Mileski was to make sure that they were “new” and not “shit ones”.

19. On 25 February 2014, Mr DeMarco told the undercover operative that the pistols were still coming but there were only five new Glocks not ten. Mr DeMarco also said, “There’s obviously, obviously confusion somewhere with it down the line, because they’ve been coming for fuckin days, and that, I said, Sam when they should be here … he was angry”.

20. On 28 February 2014, the undercover operative contacted Mr DeMarco and asked if there had been any news and Mr DeMarco said that there was no news.

21. On 2 March 2014, the undercover operative met with Mr DeMarco. At the meeting he asked what was happening with “the other five” and Mr DeMarco said that he did not know what was going on with them and that it was the suppliers.

22. The co-conspirators were arrested in April 2014.

The sentencing judgment

23. The sentencing judge, after setting out the facts as summarised above, referred to the remarks on sentence of Judge Toner in sentencing Mr Mileski. He noted that Judge Toner found that the conspiracy offence fell around the middle of the range of relative seriousness for offences of this type. The sentencing judge stated that “[o]n any view, the offence … was very serious”. He noted the object of the conspiracy initially was to supply 10 Glock pistols, although it was reduced to five as it appeared that they were the only ones that were available. He said that had the pistols been delivered, they “could have caused immeasurable damage in the community”.

24. The sentencing judge stated that it was “an offence that involved a significant degree of preparation, planning and execution”. He stated that it could be accepted that the offence also involved the applicant having “significant connection with the criminal milieu in order to obtain pistols which are not otherwise freely available in the community”.

25. The sentencing judge then adopted some of the remarks of Judge Toner in sentencing Mr DeMarco. He noted that Judge Toner found that “[q]uestions of deterrence loom large” and “[t]here was very strong support in the Australian community for the maintenance of strict regulations with respect to the possession of firearms and consequently there ought be condign sentences applied when, as here, people are found to be deliberately breaching the law in order to obtain unregistered pistols for dissemination into the community”.

26. The sentencing judge proceeded to describe the applicant’s role in the conspiracy in the following terms:

“The offender’s role in the conspiracy was to act as a link between Mileski and Dior, and Mr DeMarco. It was Mr DeMarco who was supplying the weapons to the undercover operative. Judge Toner said of the offender’s role when sentencing Mr Mileski:

‘What is clear from the facts is that the moving party behind this conspiracy was Mr Ibrahim, and he was the controlling mind of it. He was to be the essential beneficiary had the conspiracy achieved its aim, and he was the person who was providing the funds to acquire the firearms.’

In regard to those observations Judge Toner found that Mr Mileski’s participation placed him at a level ‘slightly below the middle of the range’ of seriousness for this type of offending. The observations made by Judge Toner as to the role of the offender should be accepted. Obviously his role being the most significant participant in the conspiracy also requires the imposition of the most substantial sentence between the various participants.”

27. The sentencing judge noted that Mr DeMarco was “the one who was attempting to sell the weapons” but it appeared that he was relying on the applicant to obtain them. He noted that the applicant was “able to source the weapons and … must accept a great deal of the responsibility for the commission of the offence”. The sentencing judge also noted that Judge Toner found that the roles of Ms Dior and Mr Mileski were significantly less than that of Mr DeMarco and the applicant.

28. The sentencing judge dealt with the subjective circumstances of the applicant. He noted that the applicant had “an extensive criminal record”, having served “a number of periods of incarceration”. The sentencing judge noted that he was “a member of an outlaw motorcycle club”, although he had claimed to his psychologist that he had not been with that club for more than 10 years. He also noted that the applicant was subject to bail for an offence of possessing prohibited weapons at the time of committing the present offence. He also noted that it was clear that the applicant at times had “a serious addiction to illicit drugs”. In those circumstances of the appellant’s prior criminal history, he stated that the applicant was “not entitled to any particular leniency” with respect to the offence.

29. The sentencing judge noted that the applicant was 54 years old and had been married with children in the past, but was separated from his wife. He noted that the applicant’s former wife and more recent partner provided testimonials in support of the offender which recorded he had been a good father to all his children. Both of the testimonials referred to the applicant’s use of illicit drugs to deal with certain stressors in his life. The sentencing judge stated that that seemed to be “a recurring theme”.

30. The sentencing judge noted that there was a psychiatric report prepared by Dr Richard Furst. He noted that the applicant told Dr Furst that in 2013 he and his partner separated and not long afterwards his wife was diagnosed with cancer. He told Dr Furst that he then moved in with a friend and started using the drug ice and quickly developed a substantial addiction to the drug. He noted that the applicant told Dr Furst, “I didn’t care about life. When I heard about my wife dying I didn’t care about anything except the drugs”. The applicant also told Dr Furst that during his involvement with the outlaw motorcycle club he was shot. He told Dr Furst that he had recurring memories of these events and that he also had a number of medical conditions, some of which were related to a serious motorcycle accident. The sentencing judge stated that he understood that the applicant was medicated whilst he was in custody.

27. The sentencing judge noted that Dr Furst reported that the applicant had “endured a difficult time in custody due to being listed as an ‘extreme high risk’ inmate”. He noted that he had spent “a lengthy period in segregation, although some of that time was the result of disciplinary actions”.

28. The sentencing judge noted that given the applicant’s history, it was unlikely that his classification in custody would be ameliorated any time soon. He stated that although the fact that the applicant stood to be deported when he was released from custody could not be taken into account on sentence, it was something that was likely to present as a continuing stress factor for the applicant whilst he was in custody.

29. The sentencing judge noted that in the pre-sentencing report, the applicant minimised his role in the offence, although he did express contrition for the offending to Dr Furst. The sentencing judge concluded that the expression of remorse on balance was genuine.

30. The sentencing judge stated that it was “difficult to assess his prospects of rehabilitation”. He stated that he was “clearly a repeat offender with a significant prior history”. He noted that the applicant claimed that his involvement was a result of his drug use but stated that that seemed unlikely. Despite these factors, the sentencing judge noted that “his prospects of rehabilitation would undoubtedly be enhanced if he was able to undertake some comprehensive drug rehabilitation”.

31. The sentencing judge noted that the applicant pleaded guilty at trial and allowed a discount of 10% on sentence. He noted that Mr DeMarco was sentenced on the basis that he pleaded guilty in the District Court having indicated his plea at an earlier time. He noted that Judge Toner allowed an overall discount of 15%. He noted that Mr DeMarco was sentenced to 8 years imprisonment which equated to a total term of 9 years and 5 months without a discount and that Mr DeMarco’s criminal record was significantly less than that of the applicant. The sentencing judge stated that he bore all those factors in mind when determining the appropriate sentence for the applicant.

32. The sentencing judge stated that he recognised the need for the applicant to receive drug rehabilitation. He stated that due to the length of the sentence, the rehabilitation could take place whilst the applicant was in the community on parole. He stated that it had been urged on him to find special circumstances to allow for that rehabilitation and to recognise the difficult circumstances in which he was presently serving and would continue to serve his sentence. He expressed the view that “the manner in which he was housed in custody does not appear to involve a need for a longer period on parole”. However he stated that the drug addiction was something which “he would be able to better tackle whilst on parole” and did “justify some minor lengthening of his parole period”. He said that taking that these factors into account, he would make a finding of special circumstances.

33. The sentencing judge then imposed the sentence to which I have referred above. He stated that he had backdated the sentence by two months to make the sentence partially concurrent with the sentence the applicant was already serving so as “to recognise the principle of totality”.

The grounds of appeal

38. The applicant initially sought to rely on the following grounds of appeal:

“1. Ground 1:   The learned sentencing judge erred in his assessment of the Applicant’s criminality, by making findings of fact not available on the evidence, namely that the applicant ‘was the controlling mind of’ the conspiracy and was the most ‘significant participant’.

2. Ground 2:   The Applicant has a justifiable sense of grievance in the disparity of the discount applied to his sentence (10%) as against the discount applied to the sentence imposed upon Demarco (15%).

3. Ground 3:   Alternatively, the Applicant was denied procedural fairness in relation to the assessment of the utilitarian value of the Applicant’s plea of guilty, in circumstances where the Crown indicated that the ‘there’s not much difference’ in the timing of the Applicant and his co-offenders’ pleas of guilty, and the learned sentencing judge stated that ‘parity rules would require [him] to give [] the same benefit’.”

39. At the hearing, the applicant sought and was granted leave to rely on the following additional ground (Ground 4), namely that the sentencing judge erred by failing to give effect to the finding of special circumstances where the partial accumulation of the sentence upon a previously imposed sentence resulted in an effective overall non-parole period that was only marginally less than the ‘so-called’ statutory ratio.

40. As the application for leave to appeal was filed out of time, the applicant sought and was granted an extension of time for the filing of the notice of application for leave to appeal.

Ground 1

The applicant’s submissions

41. In his written submissions, the applicant submitted that it was necessary to identify what the offender did rather than simply designate him with a label. He submitted that what was relevant in conspiracy charges was “the organisational nature of a conspiracy and the interrelationship between the various participants, rather than an identification of the role of a particular conspirator by reference solely the physical acts performed by that person”.

42. At the hearing, counsel for the applicant described the applicant as a “middleman”. He referred to the fact that Ms Dior was the applicant’s sister, submitting the applicant’s connection with the enterprise was “a familial one and not as a result of resources he himself had within the criminal milieu”. Counsel for the applicant accepted that the applicant had criminal associations but said he made no effort to use them when negotiations started. He submitted that the applicant’s role was limited to establishing contact between the Mileski side of the conspiracy and the DeMarco side of the conspiracy.

43. Counsel for the applicant submitted that the sentencing judge erred in relying on the remarks of Judge Toner in sentencing Mr DeMarco, as the agreed facts in that case were different from those in the case before him. In written submissions, it was pointed out that the agreed facts which were before Judge Toner for the purpose of sentencing Mr Mileski included the fact that the applicant funded the conspiracy of which there was no evidence or agreed fact in the case against the applicant. It was submitted that the findings that the applicant was “the controlling mind” of the conspiracy, the “essential beneficiary had the conspiracy achieved its aim”, and that he was the person “providing the funds to acquire the firearms”, were not available on the facts before the sentencing judge to be made beyond reasonable doubt.

44. Counsel for the applicant also referred to the conversation between the undercover operative and Mr DeMarco (to which I have referred at [9] above) as demonstrating that unlike the applicant, Mr DeMarco was able to source guns from people other than Mr Mileski and Ms Dior. However, in the present case, it is necessary to focus on the actual conspiracy which involved the supply of five Glock pistols sourced by Mr Mileski.

45. Counsel for the applicant submitted that the statement, “Tell Sam he needed another $23,000 because he’s got six brand new things in boxes for him”, did not necessarily establish that he was the financier. It was submitted that the money was never supplied as the conspiracy failed and in those circumstances it was not open to conclude that the applicant was supplying the funds.

46. Counsel for the applicant submitted that Mr DeMarco’s criminality was more serious as he was in a position to acquire firearms from various sources. He submitted all the applicant did was “provided a link between the two ends of the enterprise”.

The Crown’s submissions

47. The Crown submitted that the paragraphs of the agreed statement of facts referred to by the sentencing judge (see [6], [12] and [14] above) and the instruction given by the applicant to Mr Mileski to make sure “they” were new and not “shit ones”, showed that the applicant was the financier. She referred to the statement by Mr Mileski to Ms Dior, “tell Sam that he needs another $23,000”. She also submitted that the statement “that money is in addition to the $10,000 he already has” supported the inference to be drawn that these funds had also come from the applicant.

48. The Crown submitted that the fact that Mr DeMarco may have been able to get guns from someone else was irrelevant because the focus was on the conspiracy charged, not some other conspiracy or offence.

Consideration

49. It could not be contested that the applicant fell to be sentenced on the facts and evidence before the sentencing judge. Disputed factual findings adverse to the applicant are required to be established beyond reasonable doubt: R v Olbrich (1999) 199 CLR 270 at 281; [1999] HCA 54; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29 at [64]-[65].

50. It has been emphasised in cases where co-offenders have been sentenced on different evidentiary bases (whether by way of agreed facts or on findings made by the sentencing judge) that in considering any issue of parity which may arise, it is necessary to consider the actual facts on which each offender was sentenced: PG v R [2017] NSWCCA 179 at [23]-[24]; Borg v R [2019] NSWCCA 129 at [92]-[94]. This is consistent with the principles to which I have referred at [49] above.

51. With respect to the sentencing judge, it is not entirely clear that in making the remarks to which I have referred at [26]-[27] above, he was simply adopting the remarks of Judge Toner without regard to the different factual basis on which Judge Toner sentenced Mr Mileski, or whether he was simply saying that he had reached the same conclusion as Judge Toner having regard to the facts before him. If he adopted the former approach he erred, if the latter he did not, providing that the adverse findings that the applicant was “the moving party”, “the controlling mind”, “the essential beneficiary” of the conspiracy and the person who provided the funds to acquire the firearms, could be established beyond reasonable doubt.

52. The relevant factual material contained in the agreed facts is set out at [5]-[12] above. Critical is the agreed fact to which I have referred at [6] above, “Ibrahim actively planned and organised for Mileski and Dior to obtain firearms to provide them to DeMarco so that he, in turn, could supply them to the UCO [undercover operative]”. That statement itself justified the finding that the applicant was “the moving party” behind the conspiracy. Some support for this conclusion can also be obtained from the complaints and demands the applicant made of Mr Mileski, to which I have referred at [18] above.

53. Further, the conversation of 12 February 2014, to which I have referred at [12] above, makes it clear in my view that the applicant was funding the purchase. The conversation referred to six “brand new things” costing five and a half each. The cost of six new pistols at $5,500 each totals $33,000. It was stated that was the money that the applicant needed to have or obtain (along with the hiring cost of the car).

54. There is more difficulty with the finding that the applicant was “the controlling mind” and “the essential beneficiary” of the conspiracy. If all the sentencing judge meant in saying that the applicant was a “controlling mind” was that he actively planned and organised the conspiracy, that was consistent with the agreed facts.

55. However, if the finding was intended to suggest that the applicant exercised control over Mr Mileski and Ms Dior in their part of the conspiracy, namely obtaining the firearms, or over Mr DeMarco’s role in disposing of the firearms, there is in my opinion insufficient evidence to establish those facts beyond reasonable doubt. There is no evidence to show that the applicant had any control over where the guns were to be sourced or any control over the identity of the buyer or price at which Mr DeMarco was to sell them. Similarly, there is insufficient evidence of the proposed division of the proceeds to justify the conclusion beyond reasonable doubt that the applicant was “the essential beneficiary”.

56. In these circumstances, in my opinion, the sentencing judge erred in finding that the applicant was “the essential beneficiary”. It is not necessary to conclude whether or not he erred in concluding that the applicant was “the controlling mind” which as I indicated depended on what he was intending to convey by that comment.

57. However that is not to say that the sentencing judge erred in concluding that the applicant’s role in the conspiracy meant that his offence was the most serious of that of the four offenders. As was pointed out by Simpson J (as her Honour then was) in Tyler v The Queen (2007) 173 A Crim R 458 at [78], it has long been established that in sentencing for conspiracy a relevant consideration is the role played by the offender. In the present case the offender was the person who actively planned and organised the conspiracy and financed it and thus played the most significant role. His offending was accordingly the most serious.

58. Notwithstanding, the sentencing judge in my opinion erred, at least to the extent he found the applicant was “the essential beneficiary”.

59. It follows that this ground has been made out.

Grounds 2 and 3

60. All four co-conspirators were committed for a joint trial commencing on 7 November 2016. Mr Mileski and Ms Dior entered pleas of guilty on 14 November 2016 and Mr DeMarco on 16 November 2016. They all received a discount of 15% for their plea.

61. The applicant submitted his plea on 17 November 2016 and received a discount of 10%. The applicant’s complaint made under these grounds was that the sentencing judge failed to give the same discount, particularly having regard to the Crown’s concession at the trial that “in terms of the timing, there’s not much difference”.

62. The Crown properly conceded that the sentencing judge had erred in these circumstances in not giving the same discount as was given to the other co-conspirators and it was therefore necessary to resentence the applicant.

Ground 4 – Error in failing to give effect to a finding of special circumstances

63. As I indicated at [36] above, the judge after considering the applicant’s drug addiction found special circumstances which justified some minor lengthening of his parole period. He imposed a sentence backdated by two months to take account of the offence the applicant was already serving.

64. Viewed in isolation, the sentence imposed of 9 years with a non-parole period of 6 years and 6 months seems to give effect to the minor adjustment the sentencing judge determined was appropriate, the ratio of the non-parole period to the total sentence being approximately 72.2%. However, as only approximately 2 months of the sentence was to be served concurrently with the sentence imposed for the earlier offence, the total sentence the applicant would serve prior to being eligible for parole was 7 years and 2 months with a balance of term of 2 years and 6 months, the total effective sentence being 9 years and 8 months. The ratio of the non-parole period to the total sentence so calculated is approximately 74.1%.

65. The applicant in his submissions pointed to the fact that “accumulation of sentences can, in and of itself, constitute a basis for a finding of special circumstances” and to authority which held that “in cases where the finding of special circumstances was more broadly based then [sic] the accumulation itself and where the sentencing judge has not clearly indicated their awareness of the fact that the total effective sentence will remain in accordance with (or close to) the ‘statutory norm’ the court has intervened” (see Sabongi v R (2015) 249 A Crim R 167; [2015] NSWCCA 25 at [83]). The applicant submitted that this was such a case.

66. The Crown submitted that there was an adjustment, albeit minor, and the finding of special circumstances was in any event “generous” as a non-parole period of 2 years and 6 months was “ample time for the applicant to address his drug addiction”. The Crown submitted, referring to R v Fidow [2004] NSWCCA 172 at [22] that a finding of special circumstances does not mean that the sentencing judge is obliged to vary the statutory ratio.

Consideration

67. This ground can be dealt with relatively shortly as it is necessary to resentence in any event. Having regard to what I set out at [64] above, it seems to me clear that the sentencing judge in considering the appropriate non-parole period failed to take into account the fact that the sentence was being accumulated on the sentence for the previous offence.

68. The Crown submitted that there was an adjustment to the statutory ratio. However, the adjustment after accumulation was taken into account was marginally more than one month. To adopt the words in R v Sutton [2004] NSWCCA 225 at [30] and El-Ahmad v R [2015] NSWCCA 65 at [50] the reduction made “a mockery of a finding of special circumstances”.

69. The Crown correctly pointed out, referring to R v Fidow [2004] NSWCCA 172 at [22] that because there is a circumstance capable of constituting a “special circumstance” does not mean that the sentencing judge is obliged to vary the statutory proportion. The difficulty here is that the sentencing judge indicated an intention to vary the statutory proportion but failed to do so in any meaningful respect.

70. It follows that this ground of appeal has been made out.

Resentence

71. It is thus necessary to resentence the applicant. I have set out the facts and the applicant’s subjective circumstances above and it is unnecessary to repeat them.

72. I have also indicated that although it was not open to find that the applicant was “the controlling mind” or “the essential beneficiary”, as the applicant was the active planner, organiser and financier, his offence was more serious compared to that of his co-offenders. I should indicate that I do not regard it as relevant that Mr DeMarco could obtain guns from other sources. The offenders were sentenced for the conspiracy the subject of the indictment not for some other offence.

73. The offence was a serious one. As the sentencing judge pointed out the maximum penalty for the underlying offence, namely supplying firearms on an ongoing basis contrary to s 51B(1) of the Firearms Act 1996 (NSW), is 20 years. The illegal supply of weapons the subject of the conspiracy self-evidently constitutes a danger to the community and is an offence which calls for a significant degree of both general and personal deterrence. Although the conspiracy was unsuccessful that does not, in my view, mean that the offence was not a serious one, nor lessens the requirement for both general and personal deterrence.

74. Further, the applicant had an extensive criminal history dating back to 1984 including in 2005 the offence of hindering the investigation of a serious indictable offence and in 2009 the offence of detaining in company with an intent to obtain an advantage. He was ordered to serve a term of imprisonment in respect of both of these offences. In addition, he was on bail at the time he committed the present offence.

75. The evidence led on resentence included that since he was sentenced the applicant has committed three custodial offences, including the offence of intimidation in November 2018 in respect of which he was sentenced to 7 days in his cell.

76. I have taken into account the sentencing judge’s findings of the applicant’s subjective circumstances which I have set out at [28]-[32] above, including his findings that the applicant’s expression of remorse was genuine (see [33] above) and that his rehabilitation prospects would be improved if he was able to undertake comprehensive drug rehabilitation (see [34] above).

71. Taking all these matters into account, I have considered, as required by Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42] whether a lesser sentence is warranted in law. It seems to me that a lesser sentence is warranted to the extent that there should be a discount of 15% for the plea of guilty and an adjustment to the non-parole period to take account of accumulation and special circumstances.

72. In these circumstances, allowing for a discount for the applicant’s plea of guilty of 15% and a reduction in the statutory ratio to 70% of the total sentence, I would sentence the applicant to a term of imprisonment of 8 years and 6 months to commence on 9 December 2014 with a non-parole period of 5 years and 9 months expiring on 8 September 2020 and a balance of term of 2 years and 9 months expiring on 8 June 2023.

Conclusion

79. In the result I would make the following orders:

1. Grant the applicant an extension of time for notice of application for leave to appeal up to and including 18 February 2019.

2. Grant the applicant leave to appeal.

3. Appeal allowed.

4. Quash the sentence imposed on the applicant and in lieu thereof sentence the applicant to a term of imprisonment of 8 years and 6 months to commence on 9 December 2014 with a non-parole period of 5 years and 9 months expiring on 8 September 2020 and a balance of term of 2 years and 9 months expiring on 8 June 2023.

5. The earliest date the applicant will be eligible to be released on parole is 8 September 2020.

80. PRICE J: I agree with Bathurst CJ.

81. N ADAMS J: I agree with the orders proposed by the Chief Justice for the reasons provided by his Honour.

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Decision last updated: 15 August 2019