R v Ibrahim
[2001] NSWCCA 14
•8 February 2001
NEW SOUTH WALES CRIMINAL COURT OF APPEAL
CITATION: R v Ibrahim [2001] NSWCCA 14
FILE NUMBER(S):
60580/99
HEARING DATE(S): Thursday 8 February 2001
JUDGMENT DATE: 08/02/2001
PARTIES:
Regina v Romeo Ibrahim
JUDGMENT OF: Sheller JA Grove J Kirby J
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): 98/51/0068
LOWER COURT JUDICIAL OFFICER: Ducker DCJ
COUNSEL:
M.C. Marien (Crown)
P.M. Strickland (Appellant)
SOLICITORS:
S.E. O'Connor (Crown)
John D. Weller & Associates (Appellant)
CATCHWORDS:
Criminal Law and Procedure
Sentence
Drug Trafficking
Medical Condition of Appellant
Relevance to Quantum of Sentence
Inference by Sentencing Judge of Significant Involvement by Appellant in Drug Trade
LEGISLATION CITED:
DECISION:
Appeal Dismissed
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
60580/99
SHELLER JA
GROVE J
KIRBY J
Thursday 8 February 2001
REGINA v ROMEO IBRAHIM
JUDGMENT
SHELLER JA: I will ask Grove J to give the first judgment.
GROVE J: The applicant was tried at Lismore District Court before Ducker DCJ and a jury upon counts of supplying traffickable quantities of cocaine and cannabis. Following conviction, on the count of supplying cocaine he was sentenced to a total term of imprisonment of five years divided into minimum and additional terms of two years and six months each and minimum and additional terms of nine months in respect of the conviction for supplying cannabis. The latter sentence was to be served concurrently with the longer term.
The facts can be briefly sketched. It is apparent that law enforcement authorities were in possession of some information as a result of which the applicant was intercepted whilst driving a car just south of Ballina. He was accompanied by a woman Jodie Owens, with whom he was at the time participating in a relationship. A police search (with the assistance of trained dogs) located the cocaine, which was analysed to consist of approximately 160 grams of pure drug, $24,000 in cash and some cannabis which was boxed and gift wrapped.
As the learned sentencing Judge observed, the issue at trial had been whether the applicant himself was in possession of the drugs, and in order to prove its case the woman Jodie Owens was called to testify. The applicant has abandoned an appeal against conviction which was lodged shortly after the proceedings below.
A notice of grounds of appeal asserted that the sentence was manifestly excessive and that Ducker DCJ erred in finding that the applicant was deeply involved in the supply of drugs in the Far North Coast region.
It is convenient to deal with the latter assertion. The applicant is a married man born in Baghdad, Iraq in 1948. At the time of the offence he was separated from his wife and in the relationship with Miss Owens which I have mentioned. That relationship has terminated and it appears that there has been reconciliation between the applicant and his wife. The applicant has been in receipt of sickness benefits from the Commonwealth since 1992. His earlier employment, as related to a probation and parole officer who prepared a pre-sentence report, involved working as a driving instructor, a hire car driver, and operating a coffee lounge business, as well as employment in an ink manufacturing company. The applicant is not a user of the illicit drugs of which he was in possession. The presence of the large cash sum remains unexplained, but given the applicant's working and general financial background and status as a pensioner, I see no error in his Honour's conclusion. The applicant was not feeding any drug habit of his own and the possession of the cocaine, in particular, had no apparent purpose other than unlawful commercial activity. The applicant produced no evidence to the contrary of such an inference. In my view, it was open to his Honour to find that a non-addicted person in possession of a traffickable quantity of drugs and a very substantial amount of money in the circumstances relevant to the applicant was deeply involved in the supply of drugs in the area.
The maximum prescribed penalty for the offence is fifteen years imprisonment and although the applicant can be treated as a person without prior record of any significance, the imposition of a total term of one-third of the prescribed maximum cannot of itself be assessed as manifestly excessive.
The principal thrust of the argument on behalf of the applicant was focussed upon evidence before his Honour that the applicant was not in a robust state of health. A report from a cardiologist, Dr Day, was tendered. It revealed that the applicant had been seen as a patient in 1992 with severe angina. Tests and treatment ultimately included coronary artery bypass surgery. In relation to vein grafts Dr Day reported:
"Considering he had bypass surgery seven years ago, it is highly probable that the vein grafts will start to fail some time in the next two or three years, given the limited life span of vein grafts. He is totally dependent on his grafts, his native coronary circulation is occluded in many places. Once the grafts begin to occlude then he is likely to have major problems. As mentioned it is by no means certain that he will be suitable for further procedures such as surgery or angioplasty. He would then have a very limited exercise capacity and quite possibly be symptomatic, despite treatment, at rest. Taking all factors into account, I would suggest that his prognosis is no more than five years."
The learned trial Judge was sensitive to this material and referred to Dr Day's report, reciting larger extracts than I have done. The contention of the applicant is that his Honour did not properly apply correct principle in relation to the issue of the applicant's ill health. It is plain that his Honour did not overlook the circumstance, as he scarcely would have made the extensive references that he did if he regarded the matter as irrelevant. It can be observed that there was no specific evidence before his Honour that imprisonment would be a greater burden on the applicant or that of itself it would gravely adversely affect his health.
10 We were referred to the judgment of King CJ in R v. Smith (1987) 44 SASR 587 at 589, in particular the Chief Justice's remark:
"Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health."
11 We were also referred to the decision of this Court in R v. McDonald (1988) 38 A Crim R 470. In that case Roden J, who delivered the leading judgment, quoted from Smith. He observed that in that case it seemed:
"... that the circumstances of the appellant's imprisonment, by reason of his condition of health, will necessarily impose upon him stress, which medical evidence suggests can itself in turn cause a significant deterioration in the appellant's condition."
12 In the present case it is true that Dr Day referred in terms to the stress of prison, but that is something which is common to all persons who are punished in that fashion for crime. The very incidents of life necessarily give rise to stresses. As I have said, there was no specific evidence focussed upon the test set out in the references that I have mentioned.
13 Even though there was no specific reference to the matter under discussion, the learned trial Judge in finding special circumstances (which resulted in the extension of the additional term component of sentence during which the applicant may be released to parole) said that from time to time the applicant's general condition was, he suspected, likely to make his imprisonment more onerous than that of most other prisoners. This operated to the benefit of the applicant.
14 The challenge made before this court was expressed in terms of a failure by his Honour to give sufficient weight to the principles that have been adumbrated. The position of the applicant, in my view, parallels observations which were made by this court of the convict in R v L, unreported 17 June 1996, where it was said:
"The history and current state of the respondent's heart condition are probably not uncommon amongst men of his age, and no doubt there are a variety of events which could precipitate a further attack. Equally, there can be no doubt that imprisonment for a man of his age and background ... would be stressful."
15 We were referred to statistics from the Judicial Commission which indicated that the sentence imposed appears to be towards the top of the range of general impositions for this crime. It can be observed there was little subjective material to assist the applicant. I have referred to the unexplained possession of a huge amount of money by a pensioner. When seen by the probation and parole officer for the purpose of the preparation of a pre-sentence report, he reported that the offender impressed as less than frank in some of his answers This was the material that was before his Honour.
16 The applicant showed no remorse or contrition by way of acknowledgment by a plea of guilty, and indeed when seen by the probation officer he continued to assert his innocence.
17 In my view, the overall sentence imposed was well within the range of the sound exercise of his discretion and I am unpersuaded that any error has been demonstrated. I am further unpersuaded, in the terms of s 6(3) of the Criminal Appeal Act that any sentence less severe was warranted or should have been passed.
18 I propose that the application for leave to appeal against sentence be granted but that the appeal be dismissed.
19 SHELLER JA: I agree.
20 KIRBY J: I also agree.
21 SHELLER JA: The order of the court will be as Grove J has proposed.
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LAST UPDATED: 14/02/2001
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