R v Ibrahim - [2001] VSCA 77

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 257 of 2000

THE QUEEN

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

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 [2001] VSCA 77
Case: [2001] VSCA 77
Decision Date: 17 May 2001

CaseChat Overview and Summary

In the case of R v Ibrahim, the defendant was charged with four separate importations of narcotic substances in contravention of section 233B of the Customs Act. The dispute centred on the legality of the sentence imposed by the judge, who had sentenced the defendant in respect of one of the importations without sufficient legal justification. The matter was brought before the court for review.

The primary legal issue before the court was whether the sentencing judge had properly exercised his discretion under the relevant statutory provisions. Specifically, the court needed to determine if the imposition of a sentence for one of the importations was warranted by law and if the sentencing discretion should be re-opened to ensure a fair and lawful outcome. The court also needed to consider whether the total sentence imposed by the lower court was appropriate.

The court found that the sentencing judge had indeed erred in imposing a sentence for one of the importations without adequate legal basis. Consequently, the court re-opened the sentencing discretion to ensure that the sentence was consistent with the law. Upon reviewing the matter, the court determined that the total sentence imposed by the lower court was appropriate and imposed the same total sentence. The court's decision was based on a thorough analysis of the legal principles governing sentencing in cases involving multiple importations of narcotic substances.

The court's final order was to uphold the total sentence imposed by the lower court, reflecting the court's determination that the overall punishment was appropriate for the offences committed. The court also clarified that the sentencing judge's discretion had been correctly re-opened to address the legal error, ensuring that the final sentence was both lawful and just.

Orders