R v Mostafa Dib - [2020] NSWDC 145

District Court

New South Wales

Medium Neutral Citation: R v Mostafa Dib [2020] NSWDC 145
Hearing dates: 3 February 2020; 27 April 2020
Decision date: 27 April 2020
Jurisdiction: Criminal
Before: Yehia SC DCJ
Decision:
The offender is convicted. Taking into account a combined discount of 30%, I impose a sentence of imprisonment consisting of a non-parole period of 12 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2029, with a balance of term of 6 years 2 months imprisonment, expiring on 7 October 2035.

Catchwords:
CRIME — Drug offences — Commonwealth offences — Conspiracy to import border-controlled drug — commercial quantity of MDMA — relevance of police undercover operation
SENTENCING — relevance of COVID-19 pandemic to determination of appropriate sentence — onerous conditions in custody — institutionalisation.
Legislation Cited: Crimes Act 1914 (Cth), ss 16B, 16E(1), 17A
Cases Cited: Assafiri v R [2007] NSWCCA 159
Brown v R [2020] VSC 60
DPP (Cth) v Politopoulos [2020] VCC 338
DPP v Morey (a pseudonym) [2020] VCC 320
DPP v Tennison [2020] VCC 343
Hampton v R [2014] NSWCCA 131
Karpinski v R (2011) 32 VR 85
R v David (Court of Criminal Appeal (NSW), 20 April 1995, unrep)
R v Niass (Court of Criminal Appeal (NSW), 6 Nov 1988, unrep)
R v Renzalla [1997] 2 VR 88
R v Wai Lam Chan; R v Wai Kit Leung (District Court (NSW), 14 May 2019, unrep)
Rakielbakhour v DPP [2020] NSWSC 323
Silvano v R (2008) 184 A Crim R 593
Tepania v R [2018] NSWCCA 247
Wong & Leung v The Queen (2001) 207 CLR 584
Texts Cited: Communicable Diseases Network Australia, ‘CDNA Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia’ (Guideline, 31 March 2020)
Corrective Services NSW, ‘CSNSW Response to COVID-19’ (25 March 2020)
Category: Sentence
Parties: Commonwealth Director of Public Prosecutions
Mostafa Dib
Representation:
Counsel:
L Crowley QC with P McEniery (CDPP)
S Buchen SC with G Lewer (Offender)
Solicitors:
A Payten (CDPP)
R Parker (Offender)

File Number(s): 2017/00282598
Publication restriction: A suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to paragraphs [186], [187] and [188] of this judgment. The order is made on the grounds specified in ss 8(1)(a), (c) and (e) of the Act. A further suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to portions of paragraphs [12], [15], [21] and [43] of this judgment. The order is made on the grounds specified in ss 8(1)(a) and (e) of the Act.

Judgment

Mostafa Dib, the offender, is one of a number of offenders to be sentenced by me in relation to criminal activity which came to light as a result of an investigation conducted by Australian Federal Police in 2016. The investigation of these criminal activities, known as Operation Veyda, involved extensive physical and electronic surveillance over a period of more than one…

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 Mostafa Dib

Details

AGLC: R v Mostafa Dib [2020] NSWDC 145
Case: [2020] NSWDC 145
Decision Date: 27 April 2020

CaseChat Overview and Summary

In the case of R v Mostafa Dib, the respondent was convicted of conspiracy to import a border-controlled drug, specifically MDMA, in a commercial quantity. The matter was heard in the Supreme Court of Queensland. The central issue before the court was the appropriate sentence to be imposed on Dib, taking into account his role in the offence, the conditions he faced while in custody, and the impact of the COVID-19 pandemic on his circumstances.

The court considered the nature and seriousness of the offence, the level of Dib's involvement, and the potential deterrent effect of the sentence. Additionally, the court examined the impact of Dib's time in custody, particularly the unique challenges posed by the COVID-19 pandemic, on his overall sentence. The court also acknowledged the significant institutionalisation Dib had experienced as a result of his time in custody.

Following its analysis, the court determined that an appropriate sentence would be one that balanced the need for punishment and deterrence with the circumstances of the offender. The court imposed a sentence of imprisonment consisting of a non-parole period of 12 years, commencing on 8 August 2017 and expiring on 7 August 2029, with a balance of term of 6 years 2 months imprisonment, expiring on 7 October 2035. This sentence reflects the gravity of the offence, while also taking into account the unique factors presented by Dib's case.

Orders

Orders of the court

The offender is convicted. Taking into account a combined discount of 30%, I impose a sentence of imprisonment consisting of a non-parole period of 12 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2029, with a balance of term of 6 years 2 months imprisonment, expiring on 7 October 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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Medium Neutral Citation:	R v Mostafa Dib [2020] NSWDC 145
Hearing dates:	3 February 2020; 27 April 2020
Decision date:	27 April 2020
Jurisdiction:	Criminal
Before:	Yehia SC DCJ
Decision:	The offender is convicted. Taking into account a combined discount of 30%, I impose a sentence of imprisonment consisting of a non-parole period of 12 years imprisonment commencing on 8 August 2017 and expiring on 7 August 2029, with a balance of term of 6 years 2 months imprisonment, expiring on 7 October 2035.
Catchwords:	CRIME — Drug offences — Commonwealth offences — Conspiracy to import border-controlled drug — commercial quantity of MDMA — relevance of police undercover operation SENTENCING — relevance of COVID-19 pandemic to determination of appropriate sentence — onerous conditions in custody — institutionalisation.
Legislation Cited:	Crimes Act 1914 (Cth), ss 16B, 16E(1), 17A
Cases Cited:	Assafiri v R [2007] NSWCCA 159 Brown v R [2020] VSC 60 DPP (Cth) v Politopoulos [2020] VCC 338 DPP v Morey (a pseudonym) [2020] VCC 320 DPP v Tennison [2020] VCC 343 Hampton v R [2014] NSWCCA 131 Karpinski v R (2011) 32 VR 85 R v David (Court of Criminal Appeal (NSW), 20 April 1995, unrep) R v Niass (Court of Criminal Appeal (NSW), 6 Nov 1988, unrep) R v Renzalla [1997] 2 VR 88 R v Wai Lam Chan; R v Wai Kit Leung (District Court (NSW), 14 May 2019, unrep) Rakielbakhour v DPP [2020] NSWSC 323 Silvano v R (2008) 184 A Crim R 593 Tepania v R [2018] NSWCCA 247 Wong & Leung v The Queen (2001) 207 CLR 584
Texts Cited:	Communicable Diseases Network Australia, ‘CDNA Guidelines for the Prevention, Control and Public Health Management of COVID-19 Outbreaks in Correctional and Detention Facilities in Australia’ (Guideline, 31 March 2020) Corrective Services NSW, ‘CSNSW Response to COVID-19’ (25 March 2020)
Category:	Sentence
Parties:	Commonwealth Director of Public Prosecutions Mostafa Dib
Representation:	Counsel: L Crowley QC with P McEniery (CDPP) S Buchen SC with G Lewer (Offender) Solicitors: A Payten (CDPP) R Parker (Offender)
File Number(s):	2017/00282598
Publication restriction:	A suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to paragraphs [186], [187] and [188] of this judgment. The order is made on the grounds specified in ss 8(1)(a), (c) and (e) of the Act. A further suppression order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) applies to portions of paragraphs [12], [15], [21] and [43] of this judgment. The order is made on the grounds specified in ss 8(1)(a) and (e) of the Act.