Ibrahim v The Queen

[2016] NSWCCA 6

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Ibrahim v R [2016] NSWCCA 6
Date of orders:	10 February 2016
Decision date:	10 February 2016
Before:	Macfarlan JA at [1] Rothman J at [2] Bellew J at [4]
Decision:	Leave to appeal granted.
Catchwords:	CRIMINAL LAW – Appeal – Sentence – Applicant pleaded guilty mid-trial to attempting to possess a commercial quantity of a border controlled drug – Psychologist’s report tendered on sentence diagnosed applicant as having a mild mental retardation – No submissions were put to sentencing judge regarding the applicability of principles pertaining to mentally ill offenders – Whether primary judge erred in failing to sentence the applicant according to such principles – Whether serious injustice arose as a consequence of the failure of counsel to put such submissions – No injustice established - No error established CRIMINAL LAW – Appeal – Sentence – Where applicant played a significant role in the importation of a commercial quantity of opium – Whether sentencing judge had proper regard to the applicant’s subjective circumstances – Seriousness of offending – Need for general deterrence – Sentence of 12 years and 6 months imprisonment with a non-parole period of 7 years and 6 months not manifestly excessive – Appeal dismissed
Legislation Cited:	Crimes Act 1914 (Cth) Criminal Code 1995 (Cth)
Cases Cited:	Dicianni v R; Pintabona v R [2015] NSWCCA 201 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 Garcia v R [2013] NSWCCA 241 Director of Public Prosecutions (Cth) v El Kaharni (1990) 21 NSWLR 370 R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 R v Todd (NSWCCA unreported, 7 February 1994) Romero v R [2011] VSCA 45; (2011) 32 VR 486 The Queen v Pham [2015] HCA 39 Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460
Category:	Principal judgment
Parties:	Hanan Mohamad Ibrahim (Applicant) Regina (Respondent)
Representation:	Counsel: W Hunt (Applicant) P R McGuire SC (Respondent) Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2011/87190
Publication restriction:	Nil
Decision under appeal	Jurisdiction: Criminal Date of Decision: 17 October 2014 Before: Her Honour Judge Hock File Number(s): 2011/87190

Judgment

1. MACFARLAN JA: I agree with Bellew J.

2. ROTHMAN J: I agree with the orders proposed by Bellew J and generally with his reasons.

3. The relative weight to be given to general deterrence and subjective circumstances will depend on the offence and the offender. This is part of the intuitive synthesis required in considering all of the purposes of sentencing.

4. BELLEW J: On 12 June 2013 Hanan Mohamad Ibrahim (“the applicant”) was jointly arraigned with her brother, Nazih Mohamad Ibrahim, and pleaded not guilty to the following offences:

1. between about 1 February 2011 and 18 March 2011, in the State of New South Wales, did attempt to commit an offence against subsection 307.5(1) of the Criminal Code 1995 (Cth) in that she did attempt to possess a substance, the substance being an unlawfully imported border controlled drug, namely opium, the quantity being a commercial quantity (count 1); and

2. on or about 18 March 2011 at Guildford in the State of New South Wales did supply a prohibited drug namely opium, the quantity being an amount not less than the commercial quantity for that drug (count 2).

5. On the seventh day of the joint trial, the applicant pleaded guilty to count 1. The Crown accepted that plea in full satisfaction of the indictment. In addition, and pursuant to s. 16BA of the Crimes Act 1914 (Cth) (“the Act”), the applicant agreed to have taken into account on sentence an offence of possessing a controlled drug, namely Opium.

6. The offending in count 1 was contrary to ss. 307.5 and 11.1 of the Criminal Code 1995 (Cth.). It carries a maximum penalty of life imprisonment.

7. On 17 October 2014, following sentence proceedings which extended over a period of more than one year, the applicant was sentenced to imprisonment for 12 years and 6 months to date from 17 March 2011, and to expire on 16 September 2023. A non-parole period of 7 years and 6 months was set, to date from 17 March 2011 and to expire on 16 September 2018.

8. By notice dated 30 June 2015 the applicant seeks leave to appeal against the sentence imposed on the grounds that:

1. the sentencing judge erred by failing to have proper regard to her mental health in a principled fashion; and

2. the sentence is manifestly excessive.

THE FACTS

9. The following statement of facts was tendered by the Crown on sentence:

A. The Consignment

1. On 3 February 2011, sea cargo consignment bearing original bill of lading number MSCUIR191603 consisting of a 20 foot shipping container numbered TOLU2483506 (“the container”) departed Bandara Abbas, Iran on board the ship MSC BASEL. The container purported to contain “foodstuff including tomato paste and fruit juice and carpet and travertine stone in 970 packages”. The details of the consignor and consignee were as follows:

Consignee:

METAL FAB-ABN: 91 368 610 282

Unit 22/ 23-35 Scrivener Street

Warwick Farm NSW 2170

AUSTRALIA

Phone: [phone]   Fax: [phone]

Consignor:

MEHDI MAHMOUDI

TEHRAN IRAN

BANDAR ABBAS

IRAN, ISLAMIC REPUBLIC OF

2. On 10 March 2011, the container arrived in Port Botany, Sydney, and was subsequently unloaded into bond pending customs clearance.

3. On 14 March 2011, Australian Customs and Border Protection Service (Customs) and the Australian Federal Police (‘AFP’) examined the container at the Customs Container Examination Facility and found it to contain:

a) 36 pallets of boxes containing household items including pots, pans, dinnerware and cushions;

b) 17 rugs wrapped in printed plastic wrap and 668 boxes of foodstuffs; and

c) 19 cardboard boxes, each of which was marked on the exterior with two blue arrows, which had contents that were inconsistent with the description on their factory labels (“the consignment”).

4. Upon examination of the 19 cardboard boxes each was found to contain:

a) two ‘A4’ pieces of paper printed with a religious image depicting 3 people, a lion and Arabic text which lined the top and base of each box;

b) 12 clear glass jars with a white metal screw lid. There were 228 glass jars in total. Affixed to each jar was a label printed in part in Arabic characters and an image depicting tomatoes. Ingredients were listed as ‘98% tomato juice’.

5. On 15 March 2011, AFP Crime Scene members conducted a forensic examination of the 228 glass jars. Each jar was found to contain between 675.3 grams and 779.8 grams of opium, totalling between 175,217.6 grams (175.2 kilograms) and 176,822.2 grams (176.8 kilograms) of opium.

6. The wholesale value of the opium seizure is between $3,241,200 and $3,270,800. This value is calculated on a figure of $18,500 per kilogram for wholesale sales of opium in NSW in March 2011.

7. The street value of the opium seizure is between $5,256,528 and $5,304,666. This value is calculated on a figure of $30 per gram for street sales of opium in NSW in March 2011.

8. Subsequent fingerprint examination by AFP Crime Scene members of the original jars consigned from Iran revealed a number of latent fingerprints. A number of these fingerprints located on 6 different original jars were identified as being consistent with those of the co-offender, Majed SAFIZADEH (“SAFIZADEH”).

B Controlled operation

9. On 15 March 2011, a Controlled Operation Authority was issued to facilitate the delivery of the consignment by AFP members and the freight forwarder.

10. Between 15 and 16 March 2011, AFP Crime Scene members completed a substitution of the original 228 jars with jars containing an inert substitute material. The AFP installed optical, listening and tracking devices on the consignment and commenced lawful interception of telecommunications service 0417 022 246, which was one of the telephone numbers recorded by the freight forwarding agent United Cargo, as a contact number for the consignee, Metal Fab..

11. Police identified Nazih Mohamad IBRAHIM (N IBRAHIM) born 23 April 1975 as the sole user of this telecommunications service.

12. Police identified that N IBRAHIM operated a metal fabrication business named Metal Fab at 22/23-35 Scrivener Street, Warwick Farm, the consignee’s address shown on the Bill of Lading.    

C Conduct of the Offenders before Delivery of the Consignment

13. On 1 November 2010, SAFIZADEH departed Sydney Kingsford Smith Airport on Emirates flight 413 to Dubai, United Arab Emirates.

14. On 15 February 2011, SAFIZADEH arrived at Sydney Kingsford Smith Airport on Emirates flight 412 from Dubai, United Arab Emirates having been out of Australia between 1 November 2010 and 15 February 2011.

15. In February 2011, Joseph Rizk of United Cargo received a telephone call from a male person who identified himself as ‘Nazih’ who stated that he had a shipment coming in and wanted to arrange Customs clearance and delivery of his cargo. Rizk informed him that he needed to come into the office and provide him with relevant documents. Three or four days later, N IBRAHIM went into the office with original copies of the Iranian Health and Human Consumption Ability Certificate and original copies of the Certificate of Origin issued in Iran. Rizk advised N IBRAHIM that he needed to provide a bill of lading, commercial invoice and a packing declaration.

16. About two weeks later, N IBRAHIM returned to the United Cargo office with the original Bill of Lading MSCUIR191603 which related to the consignment.

17. On or about 8 March 2011, N IBRAHIM signed a written authority to Mediterranean Shipping Company Australia authorising United Cargo to act on behalf of his company, Metal Fab, in effecting the delivery of the consignment.

18. On or about 10 March 2011, N IBRAHIM attended the United Cargo Office and was provided with an invoice for payment. He paid $3,300 in cash for freight forwarding the shipment and a copy of the invoice was provided to N IBRAHIM in a United Cargo pink and blue folder.

19. On 15 March 2011, police drove past 22/23-35 Scrivener Street, Warwick Farm. This unit and adjoining units had been significantly damaged by fire and a barrier was set up to prevent entry into the fire damaged units.

20. Throughout 15 March 2011, N IBRAHIM was heard in several conversations with Ahmed Jebara. N IBRAHIM and Ahmed Jebara discussed the leasing of another unit in the complex, unit 11, due to the fire damage in unit 22. N IBRAHIM agreed to lease unit 11 for $1,600 per month.

D The events of 16 March 2011

21. About 11:03am on 16 March 2011, SAFIZADEH telephoned N IBRAHIM and asked if he had “called these people”. N IBRAHIM replied he had called them and “there is nothing yet”. SAFIZADEH asked whether he called them in the morning and N IBRAHIM said he called about half an hour ago.

22. About 11:51am on 16 March 2011, the offender Hanan Mohamad IBRAHIM (“H IBRAHIM”), the sister of N IBRAHIM, using telecommunications service 0448846059, telephoned N IBRAHIM and discussed the damage caused by the fire. N IBRAHIM then said “Ok we called in regards to the box and there is nothing yet” to which H IBRAHIM replied, “Stuff them, stuff them”.

23. About 11:59am on 16 March 2011, N IBRAHIM contacted United Cargo and requested an update on the status of the container for Metal Fab. United Cargo informed N IBRAHIM that the container was still being held.

24. About 12:23pm on 16 March 2011, SAFIZADEH telephoned N IBRAHIM and had the following conversation:

SAFIZADEH:   “Have you called again or haven’t you called?

N IBRAHIM:       “Of course I called”

SAFIZADEH:   “Nothing?”

N IBRAHIM:   “Nothing”

SAFIZADEH:   “What are you going to do now are you going to ring now or later?”

N IBRAHIM:   “Hajji I swear to God that I just called ten minutes ago”

SAFIZADEH:    “Don’t you, don’t you know why there isn’t anything?”

N IBRAHIM:   “Nothing, they’re telling me it’s being held, they haven’t released it, they haven’t released it yet”

SAFIZADEH:   “That’s alright! (ind)??

N IBRAHIM:    “Do you mean you want me ring them every five minutes?

SAFIZADEH:   “No I’m telling you will you come to my place now or after?”

N IBRAHIM:      “After”

SAFIZADEH:   “Ok”

25. About 2:12pm on 16 March 2011, SAFIZADEH telephoned N IBRAHIM and requested a status update on the container. They had the following conversation:

SAFIZADEH:   “Have you called or haven’t you called yet?”

N IBRAHIM:   “No I won’t call anymore”

SAFIZADEH:   “Huh?”

N IBRAHIM:   “I will not call again that’s it”

SAFIZADEH:   “Who is going to call then?

N IBRAHIM:   “They will call us when they have something”

…

SAFIZADEH:   “Give them a call”

N IBRAHIM:   “Hajji believe me they will call us on their own”

SAFIZADEH:   “If you don’t call now you will have to call at 3 o’clock God willing

N IBRAHIM:   “I will not call again”

SAFIZADEH:   “It’s not up to you to call or not”

N IBRAHIM:   “If you want me to I will call but if it were up to me, I won’t call”

SAFIZADEH:   “Ok I’ll call you at 3 o’clock to call”

N IBRAHIM:   “Not a problem ok bye”

26. About 2:58pm on 16 March 2011, SAFIZADEH telephoned N IBRAHIM and had the following conversation:

N IBRAHIM:   “What do you want my dear?

SAFIZADEH:   “Please, give them a call”

N IBRAHIM:   “I rang I swear to God I called. I’m not waiting for you to tell me to call? I called at quarter to three.

SAFIZADEH:   “Huh?”

N IBRAHIM:   “I rang at quarter to three not at three”

SAFIZADEH:    “Ah ok”

N IBRAHIM:   “There is nothing”

SAFIZADEH:   “Ok”

N IBRAHIM:   “I will call again at 4:30”.

27. There is no record of N IBRAHIM contacting United Cargo at quarter to three as indicated by N IBRAHIM to SAFIZADEH in that telephone call.

28. About 4:34pm on 16 March 2011, N IBRAHIM contacted a female using telecommunications service 0421638310. The user of this telecommunications service was identified as Heba El Bob, born 6 January 1983, the wife of N IBRAHIM. During this conversation they discussed the container. El Bob stated that she spoke to United Cargo and they said the container came in on 10th and they have 10 days until they will get charged for storing the container.

29. About 6:10pm on 16 March 2011, SAFIZADEH telephoned N IBRAHIM and asked why he didn’t answer his phone. They discussed the arrival of the container and the fact that there was conflicting information about the container arriving on the 8th or the 10th. N IBRAHIM said to SAFIZADEH that the girl told his wife that it arrived on the 10th.

E The events of 17 March 2011

30. About 8:56am on 17 March 2011, N IBRAHIM was contacted by Joseph Rizk of United Cargo who confirmed that the container was ready for delivery. N IBRAHIM stated that his unit had burnt down, the new delivery address was the driveway next door on 29-31 Scrivener Street and he would be there for the delivery to direct the driver.

31. At about 9:22am on 17 March 2011, N IBRAHIM telephoned H IBRAHIM and had the following conversation:

N IBRAHIM:   “And the box thing has worked out”

H IBRAHIM:   “You swear by Mohammad? ” (in an excited tone)

N IBRAHIM:   “Yeah…They are checking now what time they will be getting it”

H IBRAHIM:   “I swear by God that I had a dream that I was asking the man about it and he said to me you have 80%” (in an excited tone).

N IBRAHIM:“Pray on the prophet”

H IBRAHIM:   “Pray on the prophet”

…

N IBRAHIM:   “He called me today and said it’s done and they will see what time they’ll bring it.”

H IBRAHIM:   “Don’t you worry. To the shop?”

N IBRAHIM:   “Near the shop, I will stick to my story then change it later”.

32. About 9:24am on 17 March 2011, N IBRAHIM telephoned his wife El Bob and had the following conversation:

…

N IBRAHIM:    “When I find out when the box will be delivered to me”

EL BOB:   “Is it coming today?”

N IBRAHIM:   “Yeah today”   

EL BOB:    “Oh God have mercy”

N IBRAHIM:   “Bye do you want anything?”   

EL BOB:   “No, look while coming back on the road I said Oh God if Nazih tells me to ring today I’m not going to ring let them call us and tell us”

N IBRAHIM:   “That’s what I thought too, praise to God (ind)”

EL BOB: “I swear to God I thought I’m going to tell Nazih not

To ring and to let them tell us”

N IBRAHIM:   “I’m in despair, I’m in despair, I swear I’m in despair, I swear to God I can’t stand myself anymore”

EL BOB:   “Thank God, thank God, I swear to God that every night I wake up and pray. They say that night time is the closest you are to God. I swear to God Nazih, every time I wake up in the night I would pray Oh God please (ind), I hope to God it arrives, I hope to God”.

N IBRAHIM:   “I’m think of not telling Abu Kartouch* but go over and take a load with me”

* (Abu Kartouch is a reference to SAFIZADEH)

33. About 10:55am on 17 March 2011, N IBRAHIM was observed to attend the vicinity of 29-31 Scrivener Street, Warwick Farm NSW.

34. About 11:09am on 17 March 2011, SAFIZADEH telephoned N IBRAHIM and asked what the news was? N IBRAHIM stated he had good news. He informed SAFIZADEH that the container would be delivered today. SAFIZADEH asked why N IBRAHIM didn’t call him and N IBRAHIM replied he was waiting until SAFIZADEH was awake. N IBRAHIM then joked that he was going to not tell him at all then deliver it to his house. N IBRAHIM further stated that he was at the place cleaning it up and preparing it.

35. About 11:33am on 17 March 2011, H IBRAHIM telephoned N IBRAHIM and asked whether she should come. N IBRAHIM told her “No I want you at the normal time the box hasn’t come yet”. He asked her to go to his house and bring him the “heavy plastic bucket with white paint” and the paint roller.

36. About 11:58am on 17 March 2011, SAFIZADEH telephoned N IBRAHIM and asked if N IBRAHIM was preparing his workers. SAFIZADEH asked whether N IBRAHIM was told what time it would arrive. N IBRAHIM told SAFIZADEH to stay at home and he would contact SAFIZADEH when he gets told the time.

37. About 12:47pm on 17 March 2011, SAFIZADEH telephoned N IBRAHIM and asked him to call and ask what time the delivery was being made. N IBRAHIM answered, “No he told me they will call me; please for God’s sake don’t hassle me”. SAFIZADEH replied, “You give him a call and ask what’s happening. Tell him that the workers are waiting just waiting. Use the workers as an excuse”.

38. About 1:23pm on 17 March 2011, SAFIZADEH telephoned N IBRAHIM and asked whether he had called. N IBRAHIM said he was cleaning and hadn’t had any time. SAFIZADEH replied “Yeah I know, but to find out what time he’s coming. Son, listen to me. Tell him you have a reason to call. Tell him you’ve got workers here, you want to know until what time… the workers are an excuse. Do you understand me?”

39. About 1:26pm on 17 March 2011, N IBRAHIM telephoned Joseph Rizk at United Cargo and asked for an approximate delivery time so he could “get the boys ready”. Rizk told him he would check and call him back.

40. About 1:29pm on 17 March 2011, N IBRAHIM was contacted by Rizk who informed N IBRAHIM that the container would be delivered about 5:00 - 5:30pm.

41. About 1:31pm on 17 March 2011, N IBRAHIM telephoned SAFIZADEH and informed him that the container would be there about 5:00 - 5:30pm.

42. About 1:37pm on 17 March 2011, H IBRAHIM telephoned N IBRAHIM and he said to H IBRAHIM “not till five or five thirty he said”.

43. About 1:45pm on 17 March 2011, N IBRAHIM telephoned his wife El Bob and told her that “we won’t be engaged until five or five thirty”.

44. About 2:14pm on 17 March 2011, SAFIZADEH telephoned N IBRAHIM and they discussed organising lights for that night as it would get dark. N IBRAHIM stated that the cars had lights and that would be enough. SAFIZADEH requested N IBRAHIM to organise his people because SAFIZADEH didn’t want his. He stated “I don’t want Sam and Ali, organise your people.” N IBRAHIM asked SAFIZADEH whether he should get Mustapha to organise someone and SAFIZADEH said he should.

45. About 3:20pm on 17 March 2011, N IBRAHIM and a male person identified as Mustapha Ahmed Trad (“Trad”), born 2 December 1976, were observed standing inside factory Unit 11 of 29-31 Scrivener Street, Warwick Farm, NSW. N IBRAHIM and Trad were seen to be using painting rollers and were painting the inside of the premises.

46. About 3:32pm on 17 March 2011, a black Toyota Corolla bearing NSW Registration BG99JX (vehicle BG99JX) with H IBRAHIM as driver, one female and one male passenger was observed to attend Unit 11/29-31 Scrivener Street, Warwick Farm. All of the occupants exited the vehicle and entered the unit.

47. About 3:49pm on 17 March 2011, vehicle BG99JX with H IBRAHIM and unknown passengers departed the vicinity of Unit 11/29-31 Scrivener Street, Warwick Farm.

48. About 3:50pm on 17 March 2011, N IBRAHIM telephoned his wife and stated they had painted and cleaned the floor and he will be getting a forklift but there is no water or electricity. His wife asked if he is going to do the electricity like the other factory and N IBRAHIM replied “yes me half, him half, as long as it comes today all is good”. His wife replied, “God willing”.

49. About 4:17pm on 17 March 2011, SAFIZADEH telephoned N IBRAHIM and asked if he had finished cleaning and whether the workers had arrived. N IBRAHIM replied he was finished and the workers had not yet arrived. SAFIZADEH stated he would be coming at 5:00pm.

50. About 5:04pm on 17 March 2011, SAFIZADEH telephoned N IBRAHIM and asked whether there was any news. N IBRAHIM replied there was no news. SAFIZADEH asked whether they told him what time they would arrive. N IBRAHIM said 5:30pm.

51. About 5:07pm on 17 March 2011, H IBRAHIM telephoned N IBRAHIM and had the following conversation:

N IBRAHIM:   “I will call you nothing has shown up so far”

H IBRAHIM:   “Eh do you want me with you later?”

N IBRAHIM:   “Why where do you want to go?”

H IBRAHIM:   “I was going out tonight”

N IBRAHIM:   “Later later no, but first secure the things for me and take them hide them at my place and then I don’t need anything”

H IBRAHIM:   “In any case I am bringing water to you and coming now”

52. About 5:36pm on 17 March 2011, El Bob sent an SMS message to N IBRAHIM asking whether “she has arrived”. About 5:42pm, N IBRAHIM replied, “not yet.”

53. About 5:40pm on 17 March 2011, H IBRAHIM attended Unit 11/29-31 Scrivener Street, Warwick Farm driving vehicle BG99JX.

F Delivery of the consignment

54. About 5:41pm on 17 March 2011, the truck transporting the container arrived in the vicinity of 29-31 Scrivener Street, Warwick Farm.

55. About 5:47pm on 17 March 2011, N IBRAHIM telephoned El Bob and told her “it has arrived”. El Bob replied “Yeah thanks to God”.

56. About 5:55pm on 17 March 2011 the truck transporting the container reversed out of the driveway of 29-31 Scrivener Street and continued out of sight. About 5:56pm, N IBRAHIM and H IBRAHIM walked down the driveway of 29-31 Scrivener Street and stood on Scrivener Street. Both offenders are recorded on surveillance video laughing and animated in conversation.

57. About 6:01pm on 17 March 2011, El Bob sent an SMS message to N IBRAHIM asking “is everything ok”. About 6:02pm, N IBRAHIM replied, “Yes”.

58. About 6:06pm on 17 March 2011, SAFIZADEH attended the driveway of 29-31 Scrivener Street, Warwick Farm NSW in a white Toyota Seca bearing NSW Registration BCZ47N (vehicle BCZ47N). N IBRAHIM is recorded on surveillance video blowing a kiss to SAFIZADEH and both offenders are recorded laughing and motioning SAFIZADEH to come. SAFIZADEH parked his vehicle on the street at the front of the driveway.

59. About 6:07pm on 17 March 2011, the truck transporting the container was observed being driven down the driveway of 29-31 Scrivener Street, stopped outside Unit 11 and the container was unloaded outside Unit 11.

60. About 6:09pm on 17 March 2011, the offenders and SAFIZADEH walked down the driveway together towards Unit 11.

G Unloading the consignment

Between 6:18pm and 7:03pm on 17 March 2011, N IBRAHIM, H IBRAHIM and SAFIZADEH were observed to unload the container and remove several boxes from the container. During this period, the following conversations and sounds were recorded on the listening device:

...

From about 6:33:56-

H IBRAHIM:    Abu Ali is the tomato paste separated inside them?

SAFIZADEH:    Yeah it is separated.

N IBRAHIM:    Abu Allouchi, the tomato paste is separate, they take them out, put the thing in, and then put them.

H IBRAHIM:    Last time we sold the lot of them, there was nothing left for us at all.

N IBRAHIM:    This time it’s more awe inspiring.

H IBRAHIM:    The other day Khoder asked me about them.

N IBRAHIM:    This one is better.

H IBRAHIM:    I don’t know how long he’s been waiting for me Abu Mohammad has been waiting for me at Condell Park.

H IBRAHIM:    I will give him ten.

N IBRAHIM:    No way.

N IBRAHIM:    Do we put the carton in here?

H IBRAHIM:    Ah yeah, yeah, yeah, yeah

…

From 6:41:57 -

N IBRAHIM:    Go now.

H IBRAHIM:    (Ind)

N IBRAHIM: One moment, do you want us to come to your place?

SAFIZADEH:    Yeah (ind)

N IBRAHIM:    We will put these bags in now. Now we will put two this way and two this way in the car ok Haji?

SAFIZADEH:       Yeah (ind)

…

From 6:44:00 -

N IBRAHIM:    You will not have to sign anything for me

N IBRAHIM:    (ind) (ind) (ind) Haji

N IBRAHIM:    despite all the international arrangements (ind)

SAFIZADEH:   Do we put these small ones at the top

N IBRAHIM:    Yeah no worries

SAFIZADEH:    Yeah you will give me

…

From 6:45:58 -

N IBRAHIM:    Bring them down for me

N IBRAHIM:    Look we are all working together, don’t act fucken with me

...

From 6:47:30 -

H IBRAHIM:   Let’s put them in the car

N IBRAHIM:   No, no leave it. You are still jumping from place to place leave them as they are

…

H IBRAHIM:    Leave them, we will open them later we will open them in the house

H IBRAHIM:    You can’t put them this way or that way

N IBRAHIM:   This here is normal (ind)

N IBRAHIM:    Put these ones here

H IBRAHIM:    Abu El Abed, now when you empty it we will know

...   

From 6:48:12 -

N IBRAHIM:    Put them here so we can separate them

…

From 6:52:41 -

N IBRAHIM:    Are these marked?

N IBRAHIM:    Come here

N IBRAHIM:    Hey master

N IBRAHIM:    Is it catching in

N IBRAHIM:    Do we put this one here or here?

N IBRAHIM:    This one is different, it is different to those other ones

(sounds of packing)

...

From 6:54:30 -

N IBRAHIM:    Did you photograph it before it left from there?

SAFIZADEH:    I know it, I know it

SAFIZADEH:    It looks like it’s open

N IBRAHIM:    There are nineteen now

H IBRAHIM:    Instead of taking from it they put in it broken plates

H IBRAHIM:    Yeah

N IBRAHIM:    What a waste

…

From 6:56:20 -

N IBRAHIM:    Do you have the keys to the house?

N IBRAHIM:    See the merchandise can you still carry them

N IBRAHIM:    Look at the airport it’s empty

H IBRAHIM:    (laughs)

H IBRAHIM:    Do we go to your place?

H IBRAHIM:    All of it, all of them

N IBRAHIM:    Yes man put it here (pause) All of it?

SAFIZADEH:    (ind) (ind) (ind)

...

From 6:58:38 -

N IBRAHIM:   Is it broken? It’s been pushed in from the outside

N IBRAHIM:    This one at the front

SAFIZADEH:    Put this one in the car?

SAFIZADEH:    This one is broken

...

From 7:01:27 -

N IBRAHIM: These ones are the ones Hajji we have to first be patient be patient, no, no bring them to me and put them here so I can organise them this is one layer and this is one layer put it on top of it hurry up Abu Ali

N IBRAHIM:    One moment, one moment please

N IBRAHIM:    Do you want anything for yourself?

SAFIZADEH:    Anything but there are my things (ind)

...   

62. About 7:03pm on 17 March 2011, N IBRAHIM, H IBRAHIM and SAFIZADEH commenced packing the 19 cardboard boxes that contained the substitution into the rear of vehicle BG99JX.

63. About 7:07pm on 17 March 2011, SAFIZADEH departed the vicinity of Unit 11/29-31 Scrivener Street, Warwick Farm and approached vehicle BCZ47N. SAFIZADEH then entered vehicle BCZ47N and departed the area.

64. About 7:11pm on 17 March 2011, SAFIZADEH returned to 29-31 Scrivener Street, Warwick Farm driving vehicle BCZ47N and parked out the front of Unit 11.

H Transporting the consignment to Villawood

65. About 7:19pm on 17 March 2011, the following was recorded:

N IBRAHIM:    Keep your telephone open for me so that Hanan can keep speaking to you.

66. N IBRAHIM then handed his mobile telephone to SAFIZADEH, following which SAFIZADEH was observed to get into front driver’s side of vehicle BCZ47N.

67. About 7:19pm on 17 March 2011, H IBRAHIM driving vehicle BG99JX, and SAFIZADEH driving vehicle BCZ47N, departed Unit 11/29-31 Scrivener Street, Warwick Farm in convoy.

68. About 7.20pm on 17 March 2011, while driving in convoy, H IBRAHIM and SAFIZADEH communicated by telephone and had the following conversation:

SAFIZADEH:    Look, I’m going to drive in front of you keep a distance between me and you so that if anything happens, but, but don’t be too close to me ha?

…

H IBRAHIM:    I’m not getting too close on purpose because if you see anything I’ll find a street and go into it.

SAFIZADEH:   Yeah that’s very good

…

SAFIZADEH:   When you are going in check if there is car behind you

H IBRAHIM:   Yeah

…

SAFIZADEH:   Where are you?

H IBRAHIM:   I’m here just drove into Nazih’s street, I’m stopping here on the side for a bit.

SAFIZADEH:   Yeah we’ll stop a bit and see.

69. H IBRAHIM and SAFIZADEH were observed to drive in a manner consistent with anti-surveillance techniques on the drive to Villawood. The conversation and associated driving of both SAFIZADEH and H IBRAHIM were designed to avoid potential law enforcement attention.

70. About 7:35pm on 17 March 2011, H IBRAHIM driving vehicle BG99JX, arrived at 4 Goonaroi Street, Villawood. A short time later, SAFIZADEH, driving vehicle BCZ47N, was observed at 4 Goonaroi Street, Villawood.

I Unloading and inspecting the consignment at Villawood

71. Between 7:45pm and 8:17pm on 17 March 2011, the listening device recorded the conversations between the Offenders and SAFIZADEH.

72. About 7:56pm on 17 March 2011, after H IBRAHIM and SAFIZADEH had discovered that the opium had been replaced with play dough, H IBRAHIM telephoned N IBRAHIM and informed him what had happened. Both H IBRAHIM and SAFIZADEH told N IBRAHIM to come to the house.

73. About 8:10pm on 17 March 2011, N IBRAHIM driving vehicle BKQ51X attended 4 Goonaroi Street, Villawood NSW. The conversations continued and were recorded.

74. About 8:16pm on 17 March 2011, H IBRAHIM asked N IBRAHIM to give her the car keys and exited the premises.

J Execution of Search Warrants

75. About 8:17pm on 17 March 2011, AFP members arrived at 4 Goonaroi St, Villawood. Upon arrival, H IBRAHIM was seated in the front driver’s side of the white Toyota Hilux ute BKQ51X which was parked in the driveway of the premises. H IBRAHIM was arrested by police and N IBRAHIM and the Offender were also arrested at the house.

76. AFP members executed a section 3E Crimes Act 1914 search warrant at the premises of 4 Goonaroi Street, Villawood.

77. During the search of the front bedroom of the premises, a number of items were seized including the following:

a) a total of 14 boxes containing glass jars located on the floor in front of the bed in bedroom 1. There were a total of 6 loose glass jars with lids on the ground in between the cardboard boxes. There were further 5 cardboard boxes containing glass jars on the bed and 3 loose jars with lids on the bed between the boxes;

b) 2 glass jars without lids and 1 glass jar with a lid near the entrance to bedroom 1. 1 of the glass jars had been broken and broken glass was visible on the surrounding floor area. Each of the glass jars in the bedroom contained an amount of the brown solid material which had been substituted by police;

c) 3 knives located on the floor inside the doorway of bedroom 1;

d) a 4th knife located amongst the cardboard boxes at the foot of the bed of bedroom 1;

e) a hammer located beneath the sink in the bathroom area attached to bedroom 1;

f) a blue freezer bag containing numerous bags with black residue which tested positive to codeine, morphine, papaverine and thebaine inside a wardrobe in bedroom 1 and which had a fingerprint identified as being that of N IBRAHIM;

g) an A4 sheet of paper with Arabic writing and religious motifs, which was visually consistent with the pieces of paper which lined the 19 cardboard boxes in the consignment, stained with dark resin bits found inside the wardrobe in bedroom 1;

h) an icy machine which tested positive to opium found inside a wardrobe in bedroom 1 and which had a fingerprint identified as being that of N IBRAHIM;

i) 3 knives with black reside found inside a wardrobe in the bedroom 1 which tested positive to opium;

j) a United Cargo Pty Ltd folder containing cargo documents for container TOL42483506/20, Client: Metal Fab, Reference S1330 found in the right beside table in Bedroom 2 which had a fingerprint identified as being that of N IBRAHIM. The folder contained the following documents:

a copy of the United Cargo tax invoice;

3-page print out of the Australian Customs entry for home consumption;

an original Bill of Lading to the consignment; and

a copy of the commercial invoice for items in the container.

k) a dark green Cumberland diary 2010 – 11, containing hand written notes found on the kitchen table which had fingerprints identified as being that of N IBRAHIM and SAFIZADEH; and

l) three Apple iPhone 4 mobile telephones in their retail boxes found in a wardrobe in bedroom 1.

78. Subsequent examination of the dark green Cumberland Diary 2010-11 revealed a ledger detailing the sale of opium. This ledger revealed notes of the quantity sold, the price at which it had been sold, to whom it was sold and any running totals of outstanding debts. The ledger revealed the supply of approximately 52.025 kilograms of opium for a total amount of approximately $1,075,000 between 23 April 2010 and 23 February 2011.

79. During the search of the Toyota Hilux ute BKQ51X in which N IBRAHIM had driven to the Villawood premises and in which H IBRAHIM was seated at the time of her arrest, the following items were seized:

a) A white Nokia mobile telephone with SIM card for telecommunications service 0410193769 subscribed to Mr Jong Smith of 59 Hercules St Fairfield East NSW 2165, activated on 26 November 2009. The authorities have investigated the named subscriber and been unable to locate or identify anyone with that or any similar name ever living at the stated address.

b) Black iPhone with lumpy phone cover with SIM card for telecommunications service 0448846059 subscribed to Nicole Spresser of 1 Missenden Rd Camperdown 2050, activated on 11 February 2011 and used by H IBRAHIM to contact N IBRAHIM in the telephone calls summarised above. The authorities have investigated the named subscriber and been unable to locate or identify anyone with that or any similar name ever living at the stated address.

80. About 11:42pm, in a recorded conversation with police, N IBRAHIM he declined to participate in a record of interview.

81. The following items were seized from H IBRAHIM’s handbag:

a) A Nokia E72 mobile phone with SIM card for telecommunications service 0404648145 subscribed to Mrs Hien NGUYEN of 3 Channel St, Cohuna VIC 3568 activated on 7 May 2010. This is a false identity.

b) A Black Samsung mobile phone with SIM card for telecommunications service 0429386188 subscribed to Marshall Diamond of 10 Flers Ave, Earlwood NSW 2206, activated on 11 February 2011. This is a false identity.

82. Both Offenders were subsequently conveyed to Surry Hills Police Station where they were formally charged.

83. About 8:15pm on 17 March 2011, AFP members entered Unit 11/29-31 Scrivener Street, Warwick Farm, NSW for the purpose of executing a section 3E Crimes Act 1914 search warrant. AFP members located Mustapha Trad and a male person identified as Bassam Salem in the immediate vicinity of Unit 11. Trad was in possession of an Apple iPhone 4 with SIM card for telecommunications service 0404417417 subscribed to Hanan IBRAHIM of 26/498-502 Woodville Rd, Guildford NSW 2161, activated on 4 November 2010.

84. During the execution of the search warrant AFP members observed the roller door to Unit 11 was open and that the unit contained a number of pallets containing cardboard boxes. Located on a plastic chair on the right side of the entry to unit 11 was an opened cardboard box containing a number of glass jars with white lids containing a dark red substance, which appeared to be tomato paste.

85. The container was located outside Unit 11 and the access doors of the container were open. The container was observed to be mostly empty with the exception of a row of cardboard boxes stacked against the rear wall of the container. A forklift truck with a pallet of cardboard boxes was observed in the immediate vicinity of the container.

86. About 9:53pm, AFP members attended SAFIZADEH’s premises at 57 Alcoomie Street, Villawood, NSW for the purpose of executing a Section 3E Crimes Act 1914 search warrant.

87. During the execution of the search warrant, a number of items were seized in the shed of the premises including the following:

a) an A4 piece of paper with a religious motif and writing, which was visually consistent with the A4 pieces of paper which lined the 19 cardboard boxes containing the jars of opium; and

b) the original Bill of Lading in respect of the consignment.

88. About 5:00am on 18 March 2011, AFP members attended H IBRAHIM’s premises at 26/498-502 Woodville Road, Guildford for the purpose of executing a Section 3E Crimes Act 1914 search warrant. During the execution of the search warrant, a number of items were seized including the following:

a) 1.25kg dairy bottle labelled Chtaura containing black tar like substance found in a red sports bag under the bed in H IBRAHIM’s son’s bedroom (“bedroom 2”) which tested positive to opium;

b) 1 glass jar with blue lid containing black granulated substance and a folded A4 piece of paper with religious motif and writing found inside red and black sports bag under the bed in bedroom 2 which tested positive to opium;

• the A4 piece of paper inside the glass jar was visually consistent with the paper which lined the 19 boxes in the consignment and had a fingerprint that was identified as N IBRAHIM’s fingerprint.

c) 1 red and black sports bag containing plastic bags with black residue found under bed in bedroom 2 which tested positive to opium;

d) Red calico bag containing black plastic bags with black residue found in the built-in wardrobe in bedroom 2 which tested positive to opium;

e) 1 California Innovations brand eski bag containing a bowl, plates, knives, spoons, plastic bags and electric scales all with black residue, found under the bed in bedroom 2 which tested positive to opium;

• the resin from the 3 metal spoons, the bowl and the digital scales tested positive to opium and fingerprints were identified as N IBRAHIM’s fingerprints; and

• the residue from the plates tested positive to opium and a fingerprint was identified as N IBRAHIM’s fingerprint.

f) 1 California Innovations brand eski bag found on the laundry floor near the rear entry door;

g) 4 new Nokia 1616 mobile phones in retail boxes with charger found in a plastic bag in H IBRAHIM’s bedroom (“bedroom 1”);

h) 3 iPhone 4 telephones each in retail box with charger, 2 iPhone 4 telephones together in a small plastic bag all new, found in a shopping bag on the bed in bedroom 1;

i) 6 iPhone 4 telephones in retail boxes – all new found in the built-in wardrobe in bedroom 2;

j) 1 Vodafone SIM card for telecommunications service 0424649022 subscribed to Daniel Byrne of 1304/93 Macdonald St Erskineville NSW 2043, activated on 11 March 2009 and disconnected on 12 November 2010. This is a false identity.

89. AFP Crime Scene members conducted a forensic examination of the 2 jars seized from H IBRAHIM’s premises. The first jar contained 1057.8 grams of opium and the second jar contained 432.5 grams of opium with a total of 1,490.3 grams.

K IBRAHIM’s Record of Interview

90. On 20 September 2011, N IBRAHIM participated in a record of interview after being cautioned. In this record of interview, N IBRAHIM stated the following:

a) he did not know that the substance was a drug and he had no sense of smell so he could not smell drugs. SAFIZADEH told him it was not illegal;

b) SAFIZADEH told him it was ‘teriak’ which in their language means a medicine made of herbal extract that can be eaten or smoked. He only found out in gaol that they can make heroin out of opium;

c) SAFIZADEH used N IBRAHIM’s name for the importations because SAFIZADEH was a pensioner;

d) he started helping SAFIZADEH by giving people he met in SAFIZADEH’s shed the “herb” and they would pay him money in return. When SAFIZADEH went overseas, he would leave the “herb” with N IBRAHIM. The diary seized from N IBRAHIM’s house is his diary and contains the record of the transactions he made on behalf of SAFIZADEH;

e) the number 500 in a circle in the diary stands for 500 grams which was worth $9,500;

f) the price of a 1 kilogram was $19,000 and the price was set by SAFIZADEH;

g) when shown the photographs of the jars containing granulated material seized at H IBRAHIM’s house and photographs of the Icy machine, N IBRAHIM confirmed that the icy machine was used to granulate the rock when it needed to be broken up;

h) the record of money transactions in the diary is a record of the money he paid to SAFIZADEH. N IBRAHIM would give the money to either SAFIZADEH’s son-in-law Samir, SAFIZADEH’s daughter, Alaa, or he would deposit straight into SAFIZADEH’s mortgage bank account;

i) SAFIZADEH would set the price of the opium before he went overseas, ‘they’ would ring him and he would either go to their houses or meet in front of SAFIZADEH’s house;

j) he was surprised to see the jars in his bedroom before he was arrested. When H IBRAHIM and SAFIZADEH left the container, N IBRAHIM thought they were going to SAFIZADEH’s place, and N IBRAHIM stayed behind to handle the container;

k) SAFIZADEH never mentioned that the “medicine” was in tomato paste jars, N IBRAHIM never saw them in that;

l) he has taken the opium to Melbourne for a man named Shamshir; and

m) he did not take money for the work he did for SAFIZADEH.

L Statement to Police by SAFIZADEH

91. On 5 October 2012, SAFIZADEH provided a statement to police under caution in which he stated the following:

a) when he arrived at N IBRAHIM’s factory unit he confirmed to N IBRAHIM that the boxes were the boxes containing the opium;

b) when they arrived at N IBRAHIM’s house, they unpacked the car and took the 19 boxes into N IBRAHIM’s bedroom. H IBRAHIM and he opened one or two boxes containing the opium. He hastily opened one of the jars and realised that the content of the jars was not opium; and

c) when SAFIZADEH called Mehdi in Iran, he confirmed that nothing had changed and it was not the first time he had sent a container and it was impossible for it to have changed. He stated it was he who called Mehdi since N IBRAHIM had not arrived at the house at that time.

10. Annexure “A” to the statement of facts (referred to at para. 71) was a transcript of conversations recorded by way of a listening device. I have not set out the entirety of the contents of that transcript, but have set out relevant excerpts when considering ground 2.

THE GROUNDS OF APPEAL

GROUND 1 – THE SENTENCING JUDGE ERRED BY FAILING TO HAVE PROPER REGARD TO THE APPLICANT’S MENTAL HEALTH IN A PRINCIPLED FASHION

The evidence

11. In the proceedings before the sentencing judge, counsel then appearing for the applicant tendered (with the consent of the Crown) a report of Michelle Player, Clinical Psychologist, dated 12 September 2013.

12. At [19] of her report, Ms Player noted that the applicant’s history that she had been prescribed medications “to manage her diabetes, hypertension and cholesterol”. At [22] Ms Player stated:

“I understand from Ms Ibrahim and her GP medical records that she consulted with her GP and reported experiencing depressive symptoms in November 2007 (following the birth of her fourth son). Based on medical records, it appears that she was prescribed anti-depressant medications from around March 2009 and that she began consulting with a psychologist, Mr Medhat Metry, from August 2008 under a Mental Health Care Plan. Ms Ibrahim spoke positively of her contact with her psychologist; offering that she used the sessions to begin resolving grief issues and related stressors regarding ‘my babies, my life, my son, we don’t have the best life’. She indicated that she last saw him about one month prior to her remand in custody. She also expressed her willingness to renew contact with Mr Metry upon her release from gaol in order to receive psychological support with this transition”.

13. The medical records of the applicant’s general practitioner to which Ms Player referred were not in evidence before the sentencing judge.

14. At [26] of her report Ms Player noted the applicant’s reported symptoms related to unresolved trauma stress. The applicant described having nightmares, although she did not provide specific details about them. Ms Player thought that the history provided by the applicant in this regard was indicative of her experiencing symptoms of stress relating to prior traumatic events, the details of which the applicant had been reluctant to disclose.

15. In reviewing the documentation provided to her, Ms Player noted (at [27] of her report) that the applicant had come under the care of a Ms Weinstein, Psychologist, who had provided her with supportive counselling for panic attacks. She also noted that an initial referral of the applicant to Dr Elliott, Psychiatrist in 2011, but that no medication or follow-up was deemed necessary. It was noted by Ms Player (at [27]) that Ms Weinstein had reported that the applicant appeared to be suffering from anxiety, trauma and unresolved grief issues that were affecting her sleep and well-being. Ms Player further noted (at [28]) that the applicant had been referred to a Psychiatrist in May 2013 whilst in custody, and that the referral detailed the applicant’s lack of ability to cope with custody, her unresolved legal matters and her unresolved history of prior trauma and anxiety. There were references to possible depression and post traumatic stress disorder.

16. Ms Player undertook psychometric testing of the applicant. She said (at [38]) that the results revealed that the applicant had extremely low cognitive functioning. She concluded that the applicant presented as an intellectually disabled woman who satisfied the criteria for mild mental retardation.

17. Ms Player (at [39]) described the applicant’s account of her involvement in the offending as “unsophisticated” and said that it “reflected a level of naïvety commensurate with her presentation in interview, as well as with her low intellectual capacity”. Ms. Player’s categorisation of the applicant’s offending as unsophisticated and naïve was obviously based, in large part, upon the history provided by the applicant. In particular, Ms Player did not have available to her the evidence of statements made by the applicant in the course of her offending, which were recorded by a listening device and which I have discussed further below in my consideration of ground 2.

18. Ms Player went on to state (at [42]):

“Specifically, Ms Ibrahim satisfies criteria for Mild Mental Retardation … Ms Ibrahim’s involvement in the current offending seems best understood in the context of her extremely low intellectual capacity and poor life management skills. It appears that she was naïve, and placed her trust in her brother and co-offenders, agreeing to assist them in their endeavour at their behest, whilst not being fully cognizant of the ramifications of her involvement. She does not present with inherent antisocial attitudes, she condemned her offences and she expressed seemingly genuine remorse for her crime. Providing her with suitable services in the community to support her psychological and intellectual vulnerabilities will assist in moderating her recidivism risk”.

The sentence proceedings

19. Although the applicant entered a plea of guilty on 24 June 2013, it was not until 17 October 2014 that sentence was actually imposed. The matter came before the sentencing judge on six separate occasions in the intervening period. Ms Player’s report was tendered on the second of those occasions, namely 15 November 2013.

20. The applicant gave evidence in the sentence proceedings and was cross-examined at length by the Crown. In terms of her mental state, the applicant told the sentencing judge (commencing at T14 L29) that she was taking medication for “depression”. The applicant gave no further evidence in respect of that issue. She did not assert that she had difficulty obtaining appropriate medical treatment, nor did she assert that her period in custody was being rendered more difficult as a consequence of any mental health issue.

21. Counsel then appearing for the applicant provided written submissions to the sentencing judge. Those submissions contained only two references to the report of Ms Player, in the following terms:

(3)   The offender gave evidence that she was truthful with psychologist Michelle Player.

…

(5)   Having regard to Ms Player’s report, it appears the offender has suffered depression since 2007, is psychologically vulnerable, naïve, takes medication for diabetes, hypertension and cholesterol and without being disrespectful is of low intelligence. It is submitted these are relevant factors to the sentencing process (s 16A(2)(m).       

22. The reference to s. 16A(2)(m) was a reference to s. 16A(2)(m) of the Act which required the sentencing judge to take into account (inter alia) the mental condition of the applicant.

23. No oral submissions were put to the sentencing judge based upon Ms Player’s report. It was not put to the sentencing judge that there was any causal connection between the applicant’s mental state and her offending, such that her moral culpability for the offending ought be lessened. Further, it was not put that the applicant’s mental state rendered her an inappropriate vehicle for general deterrence. Finally, it was not put that the applicant’s mental state rendered her conditions of custody more onerous.

The findings of the sentencing judge

24. The sentencing judge (commencing at ROS 11) assessed the applicant’s subjective circumstances. In doing so, her Honour referred to the fact that the applicant had given evidence. She also referred to the tender of Ms Player’s report. Drawing on that material, her Honour outlined the applicant’s background before saying (at ROS 13):

“She has type 2 diabetes, high cholesterol and high blood pressure for which she has received treatment in the community and also in custody. She has been working while on remand and is a trusted prisoner. She said in evidence that she would like to obtain work in the community on her release”.

25. Her Honour made no further reference to the applicant’s physical or mental health.

Submissions of the applicant

26. Counsel for the applicant drew attention to s 16A(2)(m) of the Act and submitted that there was evidence of the applicant’s mental condition contained in the report of Ms Player. Counsel acknowledged that there had been (as he described it) “minimal reference” to the applicant’s mental state in evidence, argument and submissions before the sentencing judge. However, he submitted that notwithstanding the “lack of assistance” provided to the sentencing judge by the applicant’s then counsel, it remained the case that Ms Player’s report had been tendered in evidence. It was submitted that the failure on the part of the sentencing judge to give that report proper consideration was an error, as a consequence of which the applicant had been denied consideration of principles which applied to the sentencing of mentally ill offenders.

Submissions of the Crown

27. The Crown acknowledged the existence of the principles regarding the sentencing of mentally ill offenders upon which the applicant now sought to rely. However, the Crown submitted that in the present case the report of Ms Player did not establish any causal connection between the applicant’s mental state and her offending. It was submitted that in these circumstances, there was no basis upon which the applicant’s moral culpability for the offending should have been lessened.

28. It was further submitted that the report of Ms Player did not support any moderation of the need for general deterrence, nor did it support a conclusion that the state of the applicant’s mental health was such that a custodial sentence would weigh more heavily upon her.

29. In all of these circumstances, the Crown submitted that ground 1 was not made out.

Consideration

30. The principles applicable to the sentencing of mentally ill offenders were outlined by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 commencing at [177]. Those principles include the following:

1. where the state of an offender’s mental health contributes to the commission of an offence in a material way, his or her moral culpability may be reduced;

2. as a consequence of the matter in (a), the need to denounce the crime may be lessened and reflected in a reduction in the sentence;

3. the state of an offender’s mental health may also have the consequence that he or she is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed;

4. an offender’s mental health may mean that a custodial sentence may weigh more heavily on him or her and accordingly, because the sentence will be more onerous, the length of the prison term or the conditions under which it is served may be more severe; and

5. an offender’s mental illness may reduce or eliminate the significance of specific deterrence.

31. The fact that no submission was made to the sentencing judge that all or any of these principles were relevant to sentence presents the applicant with a difficulty before this court.

32. In Zreika v R [2012] NSWCCA 44 Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said (commencing at [79], citations omitted):

“[79]   This court is a court of error. The jurisdiction of the court to interfere with a sentencing decision is exercisable only where there can be seen to have been an error of principle, or some other mistake of fact or law. If material error is demonstrated, before the court would proceed to resentence the Applicant, the court must form a positive opinion that some other sentence is warranted in law and should have been passed. It is, of course, a basic principle that, absent error, the Court of Criminal Appeal may not substitute its own opinion for that of the sentencing Judge merely because (if it be the case) the court would have exercised its discretion in a manner different from the manner in which the sentencing Judge exercised his or her discretion

[80]   There is a practical expectation that an offender’s legal representative will make submissions to the sentencing Judge at first instance, by reference to the particular factors which are sought to be taken into account in mitigation of sentence in the case at hand. … “

33. Previously, in Romero v R [2011] VSCA 45; (2011) 32 VR 486 Redlich JA had said (at [11]):

“In sentencing appeals, this court is reviewing the exercise of a discretionary judgment. It is not a rehearing of the plea in mitigation. It is not the occasion for the revision and reformulation of the case presented below. Given the nature of its supervisory role, this court will not lightly entertain arguments that could have been, but were not advanced on the plea”.

34. More recently in Dicianni v R; Pintabona v R [2015] NSWCCA 201 Hoeben CJ at CL (with whom Price and Davies JJ agreed) observed (at [282]):

“It is difficult to see how there can be said to be error by the Sentencing Judge’s failing to take matters into account when no submissions about those matters were made. This court has made clear in Zreika v R [2012] NSWCCA 44 at [75] to [81], that ordinarily, if a matter has not been put to the Sentencing Judge, this court will be unlikely to find error by reason of the matter not being referred to in the remarks on sentence unless some serious injustice can be shown from the failure to raise the matter in the court below”.

35. It is evident from the transcript of the sentence proceedings, and from the submissions made on behalf of the applicant to the sentencing judge, that the report of Ms Player assumed little or no significance in the applicant’s case. This is reflected by the fact that the submissions which were made in relation to it were limited to those in [20] above.

36. Ms Player did not suggest that the applicant’s mental state was causally connected to her offending. Accordingly, the applicant’s mental state did not provide any basis for a lessening of her moral culpability. Even accepting that evidence of an offender’s mental state can remain relevant in the absence of such a causal connection, and allowing for the fact that Ms Player diagnosed the applicant as suffering from mild mental retardation, the evidence did not support a conclusion that the applicant was an inappropriate vehicle for general deterrence, particularly in light of the conduct which constituted the offending, and to which I have referred in more detail below when considering ground 2.

37. Further, there was no evidence that the applicant’s mental state rendered her period of custody more onerous. The general tenor of the evidence was that the applicant was being appropriately treated with medication.

38. In all of these circumstances, it is unsurprising that no submission was put to the sentencing judge that the principles governing the sentencing of mentally ill offenders were applicable. The question of the applicant’s mental health assumed no real significance at the time. There was no error on the part of the sentencing judge in failing to consider submissions which were not put to her. The evidence did not support the application of the principles set out in De La Rosa in any event. Accordingly, no injustice of the kind referred to by Hoeben CJ at CL in Dicianni has been established.

39. It follows that this ground is not made out.

GROUND 2 – THE SENTENCE IS MANIFESTLY EXCESSIVE

Submissions of the applicant

40. In advancing this ground, counsel for the applicant relied upon a number of factors.

41. Firstly, it was submitted that although the sentencing judge was not satisfied that there had not been other breaches of the law on the part of the applicant, this was a case in which the applicant had no record of prior offending. It was submitted that in these circumstances she was to be regarded as a person of good character.

42. Secondly, counsel pointed to the applicant’s general subjective circumstances, particularly her personal background. He described aspects of that background as “monstrously sad” and pointed, in particular, to the fact that of the four children the applicant had delivered, only one (who is now a teenager) remained alive. Whilst it was not suggested that the effect of the applicant’s incarceration upon her family was exceptional, it was submitted that it was nevertheless a relevant factor on sentence, and that insufficient weight had been given to it (and to the other factors relied upon) by the sentencing judge.

43. Thirdly, it was submitted that the applicant’s criminality was low when compared to that of her co-offenders, and that her actions were generally unsophisticated.

44. Fourthly, it was submitted that the applicant’s mental state had the effect of reducing her moral culpability for the offending. It was further submitted that even if this were not the case, Ms Player’s opinion that the applicant suffered from mild mental retardation was necessarily a relevant subjective consideration.

Submissions of the Crown

45. The Crown generally acknowledged the circumstances of the applicant’s background. However, the Crown emphasised what was described as the applicant’s “conscious, intelligent and knowing participation” in the importation. In this regard, the Crown took the court to a number of statements made by the applicant which were recorded by listening device and which, in the Crown’s submission, were demonstrative of the role that she had played.

45. The Crown took issue with the opinion of Ms Player that the applicant’s offending was naïve. It was submitted that such opinion was at odds not only with the evidence of the recorded statements of the applicant, but with aspects of her evidence before the sentencing judge. It was submitted that the evidence established that in acting as she did, the applicant was fully conscious of her conduct.

46. The Crown also pointed to the weight of the drug which was imported. Whilst acknowledging that weight was not a determinative factor, the Crown submitted that it was necessarily relevant in determining sentence. The Crown also submitted that general deterrence was an important consideration.

47. Finally the Crown submitted that the applicant performed a significant role in a sophisticated operation of importing prohibited drugs and that taking into account all of the relevant circumstances, the sentence which had been imposed was not one that could be described as unreasonable or plainly unjust.

Consideration

49. The applicant’s subjective circumstances were set out in the report of Ms Player (commencing at [7]). There is no doubt that aspects of the applicant’s background attract considerable sympathy. However, it is clear from the sentencing remarks (commencing at ROS 11) that the sentencing judge took those matters into account. It is also important to bear in mind that the weight to be given to an offender’s subjective circumstances must not be such as to lead to the imposition of a sentence which is disproportionate to the objective seriousness of the offending. Subjective considerations, however persuasive, are necessarily subsidiary to the duty of the courts to impose a sentence which will operate as a powerful factor in preventing the commission of similar offences by others: R v Todd (NSWCCA unreported, 7 February 1994) per Hunt CJ at CL (McInerney and Sully JJ agreeing). General deterrence is a particularly important consideration in sentencing for offending of this nature: Director of Public Prosecutions (Cth) v El Kaharni (1990) 21 NSWLR 370 at 377 per the Court; R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 at [55] – [58] per Beazley JA (as her Honour then was) (Blanch and Howie JJ agreeing).

50. The weight of the prohibited drug which was imported was almost nine times the applicable commercial quantity. On any view, that was significant. Weight is not determinative of sentence, nor is it determinative of a range into which a sentence should fall: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [68]-[69] per Gaudron, Gummow and Hayne JJ; De La Rosa (supra) at [68] per Allsop P (as his Honour then was). However, it is clearly a relevant factor: R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72] per Johnson J (Macfarlan JA and R A Hulme J agreeing).

51. Moreover, the relevance of the weight of the prohibited drug becomes greater where it is a matter within the knowledge of the offender: Nguyen (supra) at [72]; Garcia v R [2013] NSWCCA 241 at [74] per Bellew J (Emmett JA and R A Hulme J agreeing). Whilst there is no evidence in the present case that the applicant had precise knowledge of the weight of the drug which was imported, the nature and extent of her involvement in the venture was such that she must, at the very least, have known that it was substantial.

52. Merely because the applicant’s role may have been less than that played by one or other of her co-offenders does not mean that it was a minor one. In assessing that role, the applicant’s actions, and the statements she made in carrying them out, are significant.

53. The evidence before the sentencing judge established that the applicant assisted in loading the 19 boxes into the rear of her vehicle which she then drove, in convoy with Safizadeh, to the address at which they were unpacked. The applicant and Safizadeh were clearly aware of the need to conduct themselves in a way which did not draw undue attention to their activities. So much is evident from the recorded conversation between them which is set out at para. 68 of the statement of facts.

54. In the course of the boxes being opened, the following was recorded (“S” being a reference, in each case, to words said by Safizadeh):

S: (Unintelligible) … what …what is this?..Fuck

Applicant: (Unintelligible)… now, is something wrong?

S: Open the other one.

Applicant: Is something wrong with it? I will bring a knife.

55. Subsequently, when the applicant had been told by Safizadeh that the “material had been changed”, the following was recorded:

Applicant: Do you mean it has nothing to do with the matter at all?

S: No.

Applicant: Huh?

S: No.

56. Upon discovering that the drugs had been substituted, the applicant said to Safizadeh:

You have been tricked over there Abu Ali; you have been tricked over there.

57. The applicant then queried whether Safizadeh had “packed it with his own hands” before the following was said:

S: (Unintelligible).. Not a single one all of them… (Interrupted)

Applicant: The nineteen?

S: All of them, when (unintelligible) placed; it’s obvious that the container has been tampered with.

Applicant: Maybe it has been tampered with over there.

S: No, here.

Applicant: Here?

S: Not over there, it has been finalised over there. I did place the lock, all finished; it will not be unlocked….

Applicant: Then where? (Unintelligible) … oh God.

58. These extracts taken from the listening device material reflect the applicant’s role and, importantly, her knowledge of the matters surrounding the importation. Clearly, the applicant was shocked to learn of the substitution and enquired of Safizadeh whether he had packed the consignment “with his own hands”. As set out in the facts (at para. 8) Safizadeh’s fingerprints were found on some of the jars in the boxes. That was consistent with the Crown case that he had travelled to Iran to oversee the packing of the consignment. The inference to be drawn from the applicant’s enquiry of Safizadeh as to whether he had packed the boxes “with his own hands” is that she was aware of the fact that Safizadeh had travelled to Iran for the purposes of packing and overseeing the consignment.

59. Other statements made by the applicant provide further support for the conclusion that she was aware of the nature of the importation from the outset. In this regard, her reference in the conversation (set out at [56] above) to “nineteen” is particularly telling, bearing in mind that the drugs were contained in nineteen specifically marked boxes.

60. In all of these circumstances the objective seriousness of the applicant’s offending was high, and her role a substantial one. I am not able to accept that her offending was naïve, nor am I able to accept that it was unsophisticated. On the contrary, the applicant’s actions were deliberate, calculated and carried out in the knowledge that she was part of a significant importation of prohibited drugs.

61. It is also important to bear in mind that the applicant agreed to have taken into account on sentence the additional offence of possession of a controlled drug. That was not a matter which was to be simply noted in passing: R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 at [30] per Wood CJ at CL, Beazley JA (as her Honour then was) and James J agreeing. The sentencing judge properly had regard to that matter. The sentence she imposed was reflective of the totality of the applicant’s criminality.

62. Finally, reference was made to a schedule provided to the sentencing judge of sentences imposed in what were said to be cases of comparable offending. Whilst I have had regard to that schedule, it is necessary to emphasise that consistency in sentencing is not synonymous with numerical equivalence: The Queen v Pham [2015] HCA 39 at [28] per French CJ, Keane and Nettle JJ. What the applicant must establish, in order to succeed on this ground, is that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]). Having regard to the matters set out, the applicant has failed to do so. Accordingly, this ground is not made out.

ORDERS

63. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Decision last updated: 10 February 2016