R v Ibrahim, Moustafa

Case [2020] NSWDC 254

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Ibrahim, Moustafa [2020] NSWDC 254
Hearing dates: 28 April 2020
Decision date: 20 May 2020
Jurisdiction:Criminal
Before: Yehia SC DCJ
Decision:

Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) I impose an aggregate sentence of 30 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2047. I fix a non-parole period of 18 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2035.

Catchwords:

CRIME – conspiracy to import commercial quantity of MDMA – tobacco smuggling – whether and the extent to which an undercover operation and the role of an undercover operative operate to reduce culpability – whether there can be a meeting of the minds between an offender and an undercover operative such as to constitute an overt act in furtherance of a conspiracy

Legislation Cited:

Crimes Act 1914 (Cth), s 17A

Cases Cited:

Cam Huynh Giang v R [2017] NSWCCA 25
DPP v Fabriczy [2010] VSCA 334
Haval Kada v The Queen; Hadil Kada v The Queen [2017] VSCA 339
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
Markarian v The Queen (2005) 228 CLR 357
Mihelic v R [2019] NSWCCA 2
Parris v R [2013] NSWCCA 5
R v Elomar & Ors [2010] NSWSC 10
R v Ong [2007] VSCA 206
R v Pham (2015) 256 CLR 550
R v Taouk (1992) 65 A Crim 387
Rex v Segal (1929) 45 CCC 32
Wong v The Queen; Leung v The Queen (2001) 207 CLR 584

Category:Sentence
Parties: Commonwealth Director of Public Prosecutions
Moustafa Ibrahim
Representation: L Crowley QC with G Wright (Crown)
B Walker SC with A Francis (Offender)
File Number(s): 2017/00252518

Judgment

  1. Moustafa Ibrahim, the offender, comes before the Court to be sentenced in respect of a number of serious offences which came to light as a result of an extensive controlled operation undertaken by the Australian Federal Police (“AFP”) in 2016-2017. He will be sentenced for the following offences:

  1. Firstly, that between about 10 November 2016 and 8 August 2017 he did conspire to import a commercial quantity of a border controlled drug, namely, MDMA. The offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth) and carries a maximum penalty of life imprisonment. This conspiracy is referred to as the “syndicate one transaction”. The co-conspirators included Ryan Watsford, Mostafa Dib, Hakan Arif, Hassan Fakhreddine and Ahmad Ahmad. The quantity of drug the subject of this conspiracy was 594.43 kg of pure MDMA (Sequence 1).

  2. Secondly, that between about 22 March 2017 and 8 August 2017 he did conspire to import commercial quantities of border controlled drugs. This offence is contrary to ss 11.5(1) and 307.1(1) of the Criminal Code and carries a maximum penalty of life imprisonment. This conspiracy is referred to as the “syndicate two drug transaction”. The conspiracy involved two separate transactions. A co-conspirator…

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AGLC
R v Ibrahim, Moustafa [2020] NSWDC 254
Case
[2020] NSWDC 254
Decision Date

CaseChat Overview and Summary

The case involved Ibrahim and Moustafa, who were charged with conspiracy to import a commercial quantity of MDMA, in addition to tobacco smuggling charges. The trial took place in the Supreme Court of New South Wales. The defendants argued that the role of an undercover operative and the nature of the undercover operation should diminish their culpability. The court had to determine whether the involvement of an undercover operative could constitute an overt act in furtherance of a conspiracy and if so, the extent to which the defendants' culpability could be reduced.

The central legal issue was whether the undercover operation and the role of the undercover operative could reduce the culpability of the defendants. Specifically, the court had to examine whether there could be a meeting of the minds between the defendants and the undercover operative, which would constitute an overt act in furtherance of a conspiracy. The defendants contended that the nature of the undercover operation and the extent of the operative's involvement should lead to a reduction in their culpability.

The court concluded that the involvement of an undercover operative could indeed constitute an overt act in furtherance of a conspiracy. However, the court found that the defendants' culpability was not significantly reduced by the undercover operation. The court held that while the undercover operation was a factor to be considered, it did not absolve the defendants of their criminal intent and actions. The court emphasised that the defendants had actively participated in the planning and execution of the crime, which outweighed the mitigating effect of the undercover operation.

The final orders were that the defendants be sentenced to an aggregate of 30 years imprisonment, with a non-parole period of 18 years. The sentence was to commence on 8 August 2017 and expire on 7 August 2047.

Orders

Orders of the court

Pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) I impose an aggregate sentence of 30 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2047. I fix a non-parole period of 18 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2035.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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