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Ibrahim v The The Queen

Ibrahim v The The Queen

Case [2022] NSWCCA 134 20 June 2022

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Court of Criminal Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Ibrahim v R [2022] NSWCCA 134
Hearing dates: 29 April 2022
Date of orders: 20 June 2022
Decision date: 20 June 2022
Before: Ward P at [1]
Adamson J at [2]
Dhanji J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – appeals – appeal against sentence – supply of prohibited drug – commercial and indictable quantity – whether sentencing judge erred in assessment of objective seriousness – whether sentencing judge erred in assessment of the significance of the applicant’s deprived background to his moral culpability – whether sentence unreasonable or plainly unjust – no error demonstrated – leave to appeal granted – appeal dismissed

Legislation Cited:
Crimes Act 1900 (NSW), s 527C
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 10A, 53A
Criminal Appeal Act 1912 (NSW), s 5(1)(c)
Criminal Procedure Act 1986 (NSW), s 166
Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 25
Poisons and Therapeutic Goods Act 1966 (NSW), s 16
Road Transport Act 2013 (NSW), ss 54, 205A

Cases Cited:
Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
Hoskins v R [2021] NSWCCA 169
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lloyd v R [2022] NSWCCA 18
Markarian v The Queen (2006) 228 CLR 357; [2005] HCA 25
Mulato v R [2006] NSWCCA 282
Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
Nasrallah v R [2021] NSWCCA 207
Newman (a pseudonym) v R [2019] NSWCCA 157
Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
R v Ibrahim [2020] NSWDC 257
R v Millwood [2012] NSWCCA 2
The Queen v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Vu v R [2006] NSWCCA 188
Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460

Category: Principal judgment
Parties: Ahmed Ibrahim (Applicant)
Regina (Respondent)
Representation:
Counsel:
T V Hickie (Applicant)
E Wilkins SC (Respondent)
Solicitors:
Abbas Jacobs Lawyers (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s): 2018/244594
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Citation:

[2020] NSWDC 257

Date of Decision:

21 May 2020

Before:

Hatzistergos DCJ

File Number(s):

2018/244594

Judgment

WARD P: I agree with Dhanji J’s reasons and with the orders his Honour proposes.
ADAMSON J: I agree with Dhanji J.
DHANJI J: The applicant, Mr Ahmed Salameh (also known as Ahmed Ibrahim), seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Hatzistergos DCJ in the District Court at Campbelltown on 21 May 2020.
The applicant was sentenced for the following offences:

Seq 1: Agree to supply a prohibited drug (non-cannabis leaf) of a commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (maximum…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Ibrahim v The The Queen

Details

AGLC: Ibrahim v The The Queen [2022] NSWCCA 134
Case: [2022] NSWCCA 134
Decision Date: 20 June 2022

CaseChat Overview and Summary

The case of Ibrahim v The Queen involves an appeal by the defendant against a sentence imposed for the supply of a prohibited drug in a commercial and indictable quantity. The defendant's appeal was heard in the High Court of Australia, which was tasked with determining whether the sentencing judge erred in assessing the objective seriousness of the crime and the significance of the defendant's deprived background to his moral culpability. The defendant argued that the sentence was unreasonable or plainly unjust and sought leave to appeal against the sentence.

The primary legal issues before the court were whether the sentencing judge correctly assessed the objective seriousness of the crime and the weight to be given to the defendant's deprived background in determining moral culpability. The court needed to examine whether the sentencing judge appropriately balanced these factors and whether the sentence imposed was commensurate with the seriousness of the offence. The defendant contended that the sentence was excessive, considering his background, while the Crown argued that the sentence was appropriate given the nature and scale of the offence.

The court found that the sentencing judge had correctly assessed the objective seriousness of the crime, considering the scale and impact of the drug supply on the community. The court also determined that the sentencing judge appropriately evaluated the significance of the defendant's deprived background in assessing moral culpability, acknowledging it as a mitigating factor but not as a primary determinant of the sentence. The court held that the sentence was neither unreasonable nor plainly unjust, and therefore, the appeal was dismissed. The High Court concluded that no error in the assessment of the objective seriousness or the defendant's background had been demonstrated.

Orders