R v Ibrahim
[2001] VSCA 77
•17 May 2001
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 257 of 2000
| THE QUEEN |
| v. |
| CHAIRI IBRAHIM |
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JUDGES: | WINNEKE, P., BROOKING and CHARLES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 May 2001 | |
DATE OF JUDGMENT: | 17 May 2001 | |
MEDIUM NEUTRAL CITATION: | [2001] VSCA 77 | REVISED 6 JUNE 2001 |
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Criminal law - Sentence - Four importations of narcotic substances contrary to s.233B Customs Act - Judge imposing sentence in respect of one importation not warranted by law - Sentencing discretion re-opened - Court imposing same total sentence as that imposed by court below.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M.P.Cahill | Solicitor to the Commonwealth DPP |
For the Appellant | The Hon.J.H.Kennan,Q.C. | Brendan Wilkinson |
WINNEKE, P.:
On 31 August 2000, the appellant was found guilty by a jury in the County Court, after a trial lasting some two days, on three counts (counts 1, 2 and 3 on the presentment) of being knowingly involved in the importation of narcotic substances not less than trafficable quantities. Count 1 involved the importation of what I will call MDM (otherwise known as ecstasy) into Australia on 26 June 1998. Count 2 involved the importation of amphetamine into the country on the same date; and count 3 involved the importation of MDM on 28 June 1998. Each importation was accomplished through international carrier satchels, the first of which was addressed to "Chery" of 4 Cromwell Place, South Yarra - the name by which the appellant is known and his address. The quantity of substance alleged in count 1 to have been imported was 132.5 grams which, in terms of pure ecstasy, was in excess of 50 grams or 100 times the amount prescribed by the Customs Act (Cth.) to be a trafficable quantity. The total weight of the substance imported, as alleged in count 2, was 68.8 grams, containing 8.4 grams of methylamphetamine. The importation alleged in count 3 contained 80 white tables weighing 17.5 grams, containing 5.4 grams of pure ecstasy, and there was also a bag of 85 pink tablets containing a pure amount of 7.8 grams of ecstasy.
Following convictions on counts 1, 2 and 3, the appellant was arraigned and pleaded guilty to a fourth count on the presentment, namely, that on 13 July 1998 he imported into Australia a narcotic substance, namely, methylamphetamine, of a total weight of 8.4 grams, but of a purity of 83.4%. A substance of this nature and purity is apparently known as "ice". On this day the appellant had flown from Indonesia (his home country) with his friend Irvan Mandala, with whom he was living at 4 Cromwell Place. All four counts alleged offences contrary to s.233B(1) of the Customs Act (Cth.)
The judge sentenced the appellant on the basis that the maximum penalty for the offence proven, whether by verdict or plea, was 25 years. Having made various findings, he sentenced the appellant to three years on each count and, in effect by using the formulae contained in the Commonwealth Crimes Act, he cumulated one year of the sentence imposed upon count 4 upon the sentences imposed on counts 1, 2 and 3. He directed the release of the appellant on a recognisance release order after service of three years' imprisonment. He made a declaration as to pre-sentence detention.
In the course of his reasons for sentence, his Honour found that the appellant had imported the "ice" which was the subject of count 4 for his own use and not to sell, although his Honour found that the appellant would have shared some of it with his friends. Having made that finding, it is now conceded that his Honour fell into error in treating the maximum penalty available on count 4 as 25 years. By virtue of the provisions of s.235(3) of the Act, the offence alleged in count 4 becomes punishable by a fine not exceeding $2,000 or two years' imprisonment or both.
The error in sentencing was revealed when the matter came before a judge of this Court on 24 November 2000 on an application for leave to appeal pursuant to s.582 of the Crimes Act (Vic.) Leave to appeal was granted. We now have the benefit of a report to this Court by the sentencing judge, who agrees that he has sentenced the appellant on count 4 upon a wrong basis and has imposed a penalty in excess of that permitted by law. It was agreed that in those circumstances, the whole of the sentencing exercise of the learned judge should be set aside, including the sentences on counts 1 to 3 and cumulation orders, and that the discretion should be re-exercised by this Court.
Mr Kennan, who appeared for the appellant in this Court, submitted that all the sentences imposed by his Honour were excessive because they fail to adequately reflect a number of findings in favour of the appellant which his Honour had made. These included:
· First, a finding that the appellant was not the principal in the importations alleged in counts 1 to 3, but that he was assisting Mandala. It was put by Mr Kennan that this finding was consistent with a view formed by the judge that the appellant was "at the lower end of the importation hierarchy".
· Secondly, a finding that the appellant was a young man, who had no prior convictions and had applied himself assiduously to his studies in Australia.
· Thirdly, a finding that his Honour made that he was remorseful for his crimes and acknowledged that he had brought disgrace upon his family.
· Fourthly, that he was co-operative with the authorities.
Mr Kennan also submitted that the evidence before his Honour indicated that the appellant had stood to make no gain from the importations concerned in counts 1 to 3. For this he relied upon an answer made by the appellant in his record of interview. Mr Kennan also submitted that the penalties imposed by the judge were "out of kilter" with penalties imposed by courts in other cases to which he referred us.
It is true that his Honour found that the appellant was not the principal importer, but rather was an assistant of Mandala. However, that does not mean that he was "at the lower end of the importation hierarchy", as Mr Kennan submitted. The satchel containing the drugs which were the subject of counts 1 and 2 was addressed to him and he took numerous steps - as his Honour found - to ascertain the whereabouts of the satchel when it was not delivered on time. Furthermore, he was obviously in close league with Mandala, with whom he had returned to Indonesia prior to the importation alleged in count 4. All of this suggests to me that, although he may not have been the driving force behind the importation, he was far more than a lowly member of the importation chain. It is more consistent with his being the "right-hand man" of the principal importer. His criminality may have been less than the importer, but, in my view, not much less. These facts also lead me to reject the proposition made by Mr Kennan that the appellant was going to receive no reward from the drugs imported as alleged in counts 1, 2 and 3. His Honour made no such finding and, so far as I can see, no such finding was urged upon his Honour at the plea. Mr Kennan says that this Court should be prepared to act on the statement made by the appellant in his record of interview that he stood to gain "no reward"; the same record of interview, I might say, in which he told the police that he was unaware of what was in the satchels. In my view there was enough material in the evidence to lead to the inevitable conclusion that the appellant stood to gain from these importations - indeed a finding to the contrary would seem to me to be a perverse one. It is clear that his Honour must have so found, and he was not asked to find to the contrary for the purposes of imposing a penalty.
In my opinion, the criminality of the appellant involved in the offences alleged in counts 1 to 3 inclusive, involving as they did dangerous drugs, far in excess of trafficable quantities as prescribed in the Act, was such as to amply justify the sentences of three years' imprisonment which his Honour had ordered. I am not assisted in coming to any other conclusion by looking at the sentences imposed in other cases, which, as they must, involved different facts and where the persons upon whom they were imposed had, I think, with no exception, pleaded guilty. The importation of drugs such as these into this country is a very serious offence - so recognised by the legislature - and the penalties of three years imposed on counts 1 to 3 are penalties which, for my own part, I would not be prepared to interfere with, and I would impose them again.
So far as count 4 is concerned, where the appellant was the importer of a significant quantity of "almost pure" methylamphetamine, I am also of the view that it was an offence that warrants a sentence of imprisonment. It was, to use the vernacular, a significant importation, which, upon his Honour's findings, was going to be used by others apart from the appellant. I would, for myself, impose a period of imprisonment of 12 months for this offence.
What then should the final result be, in the event that this Court has reduced the penalty on count 4 from three years to 12 months? Mr Kennan, in his helpful submissions, argued that the total effective sentence and the non-parole period or recognisance release period should accordingly be reduced. Mr Cahill on behalf of the respondent says that the total criminality of the appellant remains sufficiently serious to warrant the same total effective sentence imposed by the judge.
After careful consideration, I am in agreement with the submissions of the respondent. The appellant was involved in four significant importations into this country of dangerous substances. As this Court has so often said, those who wish to run the risk of profiting from importing dangerous drugs into the country must also face the prospect that, if caught, they will receive condign punishment. In my opinion the criminality of the appellant involved in the four importations can only be adequately punished by re-imposing a sentence of the same length as that imposed by the trial judge, even despite the error which his Honour has made. For my own part, I would impose punishment by setting aside the sentences passed by the learned judge and imposing in lieu thereof the following sentences:
on counts 1, 2 and 3 - three years' imprisonment;
on count 4 - 12 months' imprisonment.
I would direct that the sentences of imprisonment on counts 2, 3 and 4 commence on the date when his Honour imposed sentence, namely, 8 September 2000, and that the sentence imposed on count 1 should commence on 8 September 2001, that is, 12 months after the commencement of the sentences imposed on counts 2, 3 and 4. I would direct, as his Honour did, that the appellant be released on his own recognisance in the sum of $1,000 after he has served the period of three years' imprisonment. The recognisance will of course, as his Honour said, be conditioned upon the appellant being of good behaviour for the period of 12 months after release. In fixing the sentences on each count, I have had regard, in accordance with s.16G of the Commonwealth Crimes Act, to the fact that remissions have been abolished in this State and I have adjusted the sentences accordingly.
I am satisfied that no penalty other than one of imprisonment is appropriate in respect of each of counts 1, 2, 3 and 4 because of the gravity of those offences, and I would declare that this fact and the reasons for it should be entered in the records of the Court.
Pursuant to s.16E of the Crimes Act (Cth.), I would declare that the appellant has already served a period of 286 days pursuant to these sentences (including the
time between original sentence and this date), and I would also order that the fact of that declaration and its details be entered in the records of the Court.
Because the appellant will fall to be released on the same date as the recognisance release order to which he is already subject, it does not seem to me, unless I am advised to the contrary, that it will be necessary to have any further order drawn up to make this sentence effective.
BROOKING, J.A.:
I agree.
CHARLES, J.A.:
I also agree.
MR CAHILL:
May I address the Court in relation to the commencement dates of the sentences?
WINNEKE, P.:
Yes.
MR CAHILL:
Section 16E and section 19 are the relevant sections of the Commonwealth Crimes Act. I am instructed, and my submission is that this is the case, that the
commencement date of the sentences must be today. The commencement date can't be back-dated.
WINNEKE, P.:
Through the operation of section 16E?
MR CAHILL:
Section 16E, yes, and the cure is the reckoning of the 286 days in time.
WINNEKE, P.:
Yes, I see. In other words, if we are going to say that they start from then, we could not say that he has already served - -
MR CAHILL:
286 days, no.
WINNEKE, P.:
With this pre-sentence detention, the way we do it in this State, if an appeal is allowed and a re-sentencing exercise engaged in, all the sentences date back to the date of the original sentence; and what is called PSD is not really PSD, it is time served under the sentence including the time up until the date the appeal is allowed, which I have said here. So that one would have liked to have thought that in the form that I have done it, in commencing the sentences back on the day of the original
sentence, what will be noted by the correction authorities - and that is the way we do it here - is that the total time served pursuant to that sentence, including the time between the date of original sentence and today, is included in the figure. It is not pre-sentence detention in the sense that if we make them start as at September 2000, the date of the original sentence, he then is by that date said to have served 286 days.
MR CAHILL:
No, because he has served 286 days until today, according to - - -
WINNEKE, P.:
That is why, under our Act, which is the Act that we are bound to take into account, we are now bound to declare a time which includes the time up to the date of appeal.
BROOKING, J.A.:
If I may add to what the President said, we are doing what the judge should have done. The judge couldn't back-date his sentence, but we are not doing it; we are substituting for the judge's sentence a sentence which commences either immediately or, in the case of count 1, after 12 months. So far as the Victorian practice is concerned, it was recently the subject of a judgment of this Court in Ibrahimoff given only a week or two ago.
MR CAHILL:
If the Court pleases.
WINNEKE, P.:
The formal orders of the Court will be as I have pronounced them in the course of my judgment.
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