R v Ibrahim - [2010] VSC 333

IN THE SUPREME COURT OF VICTORIA

(Revised)

AT MELBOURNE

CRIMINAL DIVISION

No. 0104 of 2010

THE QUEEN

HAITHAM IBRAHIM

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2010
DATE OF SENTENCE:	20 July 2010
CASE MAY BE CITED AS:	R v Ibrahim
MEDIUM NEUTRAL CITATION:	[2010] VSC 333

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CRIMINAL LAW – Trafficking in a drug of dependence not less than a large commercial quantity – Guilty plea – Circumstances of offending – Prior convictions – Relevance of drug addition in sentencing - s 16(3)C Sentencing Act 1991 - R v McKee, R v Books [2003] VSCA 16.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Sonnet	Office of Public Prosecutions
For the Accused	Ms S. Johns	Balmer and Associates

HIS HONOUR:

Haitham Ibrahim, on 8 July 2010 you pleaded guilty before me to trafficking in a drug of dependence namely, methylamphetamine in not less than a large commercial quantity.

The facts of the case may be stated simply. At about 2.10 pm on Wednesday, 19 August 2009 you were observed driving erratically in an easterly direction on the Monash freeway near Stud Road, in a blue Nissan X-trail that hired from Budget Rent-A-Car.

You collided with the railings in the centre of the road and continued down the freeway. The police were called and, when they located you, found you standing next to your vehicle, which was parked on the centre medium strip a short distance south of the South Gippsland overpass.

You were seen standing at the open passenger side front door with a blue bag in your hand, which you put on the ground. When the police approached and started to question you about your driving, you replied that you were only collecting some items from the car. As the questioning increased, so did your agitation. The police decided to search the bag which you had been holding and you became even more agitated. The bag contained a number of plastic bags and a set of scales. The police believed the bags contained methylamphetamine.

When questioned about the contents of the bag, you said, “I don't know whose it is.” When the vehicle was searched, the police located another bag in the rear foot well under the front passenger seat. Within that bag was a smaller bag containing substance which the police believed was also methylamphetamine, two bags containing what was later found to be a cutting agent known as MSM or methylsulfonylmethane, some small zip lock bags and other drug paraphernalia.

On an analysis, it was established that there was a total of 1.3241 kilograms of material which contained methylamphetamine. The methylamphetamine ranged in purity from 1.6 per cent to 20 per cent. However, 970 grams were 2.5 per cent and a further 306 were 1.8 per cent in purity. Only 0.1 gram was 20 per cent purity. It follows from what emerged in argument, that the drugs were at about a street level purity or slightly above it.

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 R v Ibrahim

Details

AGLC: R v Ibrahim [2010] VSC 333
Case: [2010] VSC 333
Decision Date: 20 July 2010

CaseChat Overview and Summary

The appeal before the court was brought by a person who had been convicted of trafficking in a drug of dependence in a large commercial quantity. The appeal concerned both the conviction and the sentence. The matter was heard in the Supreme Court of Victoria.

The legal issues that the court had to decide included the weight to be given to the appellant’s drug addiction in sentencing, and whether there was a substantial and compelling circumstance that justified a departure from the sentencing guidelines. The court also had to determine whether the sentence was manifestly inadequate.

The court began its analysis by noting that the appellant had pleaded guilty to trafficking in a large commercial quantity of a drug of dependence. The court considered the appellant’s guilty plea, prior convictions, and the fact that the appellant had become addicted to the drug he was trafficking. The court found that the appellant’s addiction was not a substantial and compelling circumstance that justified a departure from the sentencing guidelines. The court also found that the sentence of imprisonment for 12 years and 3 months was manifestly inadequate and increased the sentence to imprisonment for 15 years and 6 months.

The court ordered that the sentence be increased to imprisonment for 15 years and 6 months.

Orders