Ibrahim v R

1. [1]

   HARRISON J: I agree with Davies J.

2. [2]

   DAVIES J: The applicant pleaded guilty in the Local Court to a number of offences involving conspiracies to import tobacco and commercial quantities of MDMA at various dates between November 2016 and July 2017. The applicant was committed for sentence to the District Court, where he was sentenced by Yehia SC DCJ on 20 May 2020 to an aggregate sentence of thirty years’ imprisonment commencing 8 August 2017 and expiring 7 August 2047 with a non-parole period of 18 years expiring 7 August 2035: R v Ibrahim, Moustafa [2020] NSWDC 254.

3. [3]

   The particular offences, and the indicative sentence for each, are as follows:

4. [4]

   One of the co-offenders, Mostafa Dib pleaded guilty to one count of conspiring to import a commercial quantity of MDMA being 594.43kgs of that drug. That was the same offence that the applicant was charged with in Sequence 1. Dib was sentenced by the same Judge, Judge Yehia SC, on 27 April 2020: R v Mostafa Dib [2020] NSWDC 145. Her Honour accorded a discount of 30% of which 25% was for the plea. He was sentenced to a non-parole period of 12 years’ imprisonment with a balance of term of six years and two months. Her Honour noted that the starting point before the application of the 30% reduction was a sentence of 26 years’ imprisonment.

The offending

1. [5]

   The Crown statement of facts extended to more than 50 pages of which the following is a summary, taken largely from the Crown’s submissions.

2. [6]

   Tobacco transactions 1, 2 and 3 were the subject of a rolled-up money laundering charge, dealing in the proceeds of crime greater than $1 million (Sequence 19). The sentencing judge noted this offence spanned a period of about 4 months and involved the applicant dealing in the purchase money of the three cigarette transactions, totalling over $2.8 million in cash.

3. [7]

   Tobacco Transaction 1 involved the purchase of 200,000 packets of smuggled cigarettes for $1,200,000.00. In summary, her Honour noted the following facts:

4. [8]

   Tobacco Transaction 2 involved the purchase of 100,00 packets of cigarettes for $620,000. In summary, her Honour noted the following facts:

5. [9]

   Tobacco Transaction 3 involved the purchase of 190,000 packets of smuggled cigarettes for $796,820. In summary, her Honour noted:

6. [10]

   Tobacco Transaction 4 involved the importation of 900,000 packets of smuggled tobacco from Dubai, using “the door” offered by UCO Zane. (The “door” is a person or methodology that is able to facilitate the importation of goods into Australia without them being detected by Australian law enforcement.) The applicant dealt with $1,800,000 for this purpose (Sequence 12). The sentencing judge noted the applicant borrowed money to assist in the financing and directed a number of associates to assist financing the enterprise. Sequence 13 and 14 concerned the smuggling of the tobacco associated with the dealing with the $1,800,000.

7. [11]

   The final tobacco transaction offence, described as the future tobacco transaction, involved the applicant providing UCO Zane with $2,224,500 cash to facilitate a further importation of smuggled tobacco (Sequence 15). The applicant arranged with Derbas to have approximately $2.25 million available for that purpose.

8. [12]

   In terms of the applicant’s role, her Honour separately identified what the applicant did in relation to tobacco transactions 1, 2 and 3, transaction 4 and the future tobacco transaction, finding that, following the failed transaction on 7 March 2017 involving Watsford, the applicant stepped up his “hands on” involvement. The applicant was found to have a senior role in each tobacco transaction offence, more so than Watsford or Derbas, over whom he exercised authority. He was personally invested and obtained a substantial financial benefit, identified as being $6,750,000 (minus costs).

9. [13]

   The MDMA Dib conspiracy ultimately involved the attempted importation of 594.43kg of pure MDMA, the relevant wholesale value being between $29.5 million and $35.1 million (Sequence 1).

10. [14]

    The sentencing judge found that:

11. [15]

    The sentencing judge, in the course of summarising the relevant facts relating to the MDMA Dib conspiracy, considered, in the context of the applicant’s role, the contested issue of whether the applicant was a willing and enthusiastic participant in this conspiracy. The sentencing judge identified numerous statements and actions of the applicant that demonstrated that the applicant was, in fact, a willing participant in the MDMA conspiracy. The statements and actions of the applicant relied on were summarised by the sentencing judge at paragraph [186] of her Remarks on Sentence (ROS).

12. [16]

    The sentencing judge also summarised the overt acts of the applicant in furtherance of the conspiracy at paragraph [199] of her ROS.

13. [17]

    As regards the applicant’s role the sentencing judge concluded that:

14. [18]

    The Elmir conspiracy ultimately involved two separate drug transactions:

15. [19]

    The sentencing judge found that the Elmir conspiracy overlapped with the MDMA/Dib conspiracy. The applicant suggested to Zane on 22 March 2017, whilst the MDMA Dib conspiracy was on foot, that he also deal with Elmir.

16. [20]

    For the syndicate two drug transaction, the sentencing judge noted that the liability of the applicant for the second transaction was contested. In relation to this issue, the sentencing judge concluded that:

17. [21]

    The sentencing judge, in the course of summarising the relevant facts relating to the Elmir conspiracy, again carefully considered, in the context of the applicant’s role, the contested issue of whether the applicant was a willing and enthusiastic participant in this conspiracy. The actions and statement of the applicant that established his willingness to be involved included:

18. [22]

    In terms of acts performed by the applicant in furtherance of the syndicate two drug transaction, the sentencing judge summarised his overt acts at paragraph [204] of her ROS;

19. [23]

    As regards the applicant’s role, the sentencing judge concluded that, similar to the MDMA Dib conspiracy:

20. [24]

    A further drug related offence, trafficking in MDMA, was taken into account on a form s 16BA certificate (Sequence 20). This offending occurred at the same time as Tobacco Transaction 3. In relation to this offence, her Honour noted that:

Grounds of appeal

1. [25]

   The applicant now seeks leave to appeal against his aggregate sentence on the following grounds:

2. [26]

   These grounds all concern the role of the applicant and the role of the undercover operative. They are conveniently dealt with together.

3. [27]

   The applicant submitted that the sentencing judge created a dichotomy between coercive and non-coercive pressure or encouragement, and resolved that dichotomy adversely to the applicant. In doing so, the sentencing judge neglected to identify how the tactics employed by UCO Zane were relevant to the sentencing exercise or, in the application of sentencing principle.

4. [28]

   The applicant submitted that the absence of “threatening” behaviour on the part of the police did not render other persuasive tactics of little or insubstantial application to the sentencing exercise. That was because inducements of the kind that were in play were more psychologically nuanced than force or coercion, but were no less effective. The applicant relied on what was said in Haval Kada v The Queen [2017] VSCA 339; (2017) 270 A Crim R 197, and submitted that in that case it was held that the manner in which the involvement of the police contributed to the offending included, without qualitative distinction: pressure, coercion, encouragement, or inducement. The applicant submitted that the Court decided in that case that the issue was the extent to which those matters contributed to the offending.

5. [29]

   The applicant submitted that, where her Honour had found that she was satisfied that police inducement was material, it was wrong to fail to give effect to those findings, by significantly reducing culpability.

6. [30]

   The applicant submitted that it was erroneous for the sentencing judge not to say how specific and general deterrence were to be ameliorated in what her Honour accepted were the rare circumstances of this case.

7. [31]

   The applicant submitted that the sentencing judge ought to have found that specific deterrence was not of great weight. This was because, given her Honour’s findings that the applicant was not, before his introduction to UCO Zane, importing nor inclined to agree to import drugs, the community did not need to be protected from him, and he did not need to be rehabilitated because he was unlikely to repeat offending of this type. The applicant submitted that he stood to be punished for having been corrupted by the authorities, and the sentence did not need to deter him from being similarly corrupted in the future.

8. [32]

   The applicant submitted that general deterrence did not loom large in circumstances where it was generally implausible that persons otherwise disinclined to criminality might come to calculate the risks of seizing the opportunity of a guaranteed “door” offered, without any need for financial contribution by persons equipped to deal in container loads of narcotics. In that way, the applicant submitted that the commercial unreality of the police inducement was relevant not only to an evaluation of the applicant’s real disposition to criminality of this kind, but also to the application of general deterrence.

9. [33]

   The applicant submitted that the conduct of the police operation was not a passive intelligence gathering exercise. Rather, it encouraged the applicant’s involvement by presenting him with the opportunity to capitalise in ways suggestive of commercial unreality. The applicant submitted that the demonstrable objective of police encouragement in the present case was to groom the applicant with tobacco profit, normalise such an arrangement, and in so doing incentivise enlarging the business to encompass drugs. The relevance of the applicant being a “willing participant” in that enlargement was to be assessed in that context.

10. [34]

    The applicant submitted that the finding by the sentencing judge that the applicant’s culpability was diminished because of the involvement of Zane, should have led to a much lower sentence, particularly when the applicant’s sentence is compared to that accorded to Mostafa Dib.

11. [35]

    The applicant submitted that, by his plea, he was throwing away a significant matter that went to a defence of the charges in any event, when regard was had to s 15GI(2)(f) of the Crimes Act 1914 (Cth), and to what was said in Ridgeway v The Queen (1995) 184 CLR 19 at 91-92; [1995] HCA 66.

12. [36]

    The Crown submitted that in the application of the principles from Haval Kada and R v Taouk (1992) 65 A Crim R 387, there were two questions or aspects of the statement of principle. The first was the question of causation. The second was the question of whether, in all the circumstances, there ought to be a diminishing of the moral culpability of the offender for those reasons. The Crown submitted that the approach of the applicant wrongly elided the two issues, so that where the question of causation was found in favour of the applicant there must necessarily be a substantial diminishing of culpability.

13. [37]

    The Crown submitted that the sentencing judge correctly identified and applied the test enunciated by Badgery-Parker J in Taouk.

14. [38]

    The Crown submitted that the sentencing judge did not create an erroneous dichotomy between coercive and non-coercive behaviour. Rather, the lack of coercion was only one of the factors to which the sentencing judge had regard.

15. [39]

    The Crown submitted that the applicant was a willing, enthusiastic and active participant in five tobacco transactions and two drug conspiracies, and that was the relevant factor to be taken into account in determining where the involvement of UCO Zane placed the applicant’s offending along the spectrum of culpability. The Crown submitted that the sentencing judge gave adequate weight to the relevance of police involvement.

16. [40]

    The Crown submitted that an assertion that too much or too little weight was given to a particular sentencing factor does not raise an identifiable, specific error of fact, law or principle. The question of weight is within the discretion of the sentencing judge. In that way, ground 2 does not identify error.

17. [41]

    The Crown submitted that the sentencing judge noted that both specific and general deterrence were important sentencing considerations in the case having regard to the criminality and the duration over which the applicant had engaged in it. The Crown submitted that it could not be supposed that in assessing the applicant’s culpability, the sentencing judge failed to have regard to those matters. Such an approach failed to have regard to the ROS as a whole.

18. [42]

    The Crown submitted that the fact that the opportunity for the drug conspiracies was an artifice instigated by UCO Zane did not detract from the need for general deterrence. That was because likeminded persons might be said to be persons in the position of the applicant, namely, persons engaged in other extensive criminality who attempted to pursue large scale drug importations for the prospect of substantial financial reward, and who enthusiastically grasped such an opportunity.

19. [43]

    In Taouk, Badgery-Parker J (with whom Clark JA and Abadee J agreed) said at 404:

20. [44]

    The sentencing judge made the following significant findings about the role of UCO Zane and the involvement of the applicant in the drug transactions:

21. [45]

    Grounds 1 and 2 effectively challenge the sentencing judge’s assessment of the applicant’s culpability. The assessment of the culpability of an offender is, like the assessment of the objective seriousness of an offence, the responsibility of the sentencing judge. It is necessary to point to a House v The King error to disturb such an assessment.

22. [46]

    The applicant seeks to identify specific error in terms of what appears at [242] of the ROS, by asserting that the sentencing judge created a dichotomy between coercive and non-coercive behaviour, and asserting that the conclusion of a diminution that was not substantial derives from the finding of non-coercive behaviour.

23. [47]

    The difficulty of establishing error is the greater when assessment of culpability is the issue, because the assessment does not result in an outcome that can be readily scrutinised. Assessment of culpability is essentially part of the instinctive synthesis of sentencing. Culpability is not assessed on any scale as objective seriousness might be. A challenge to the assessment of culpability could only direct attention to the ultimate sentence itself, unless specific error is identified.

24. [48]

    This point seems to have been accepted by Senior Counsel before the sentencing judge (not present counsel) who said:

25. [49]

    The problem for the applicant in this regard is made clear by the terms of ground 2 which can only be a challenge to the weight given to the issue of the applicant’s culpability. This Court has said repeatedly that there are inherent problems in such a ground succeeding: Stephens v R [2009] NSWCCA 240 at [16] to [18]; Majid v R [2010] NSWCCA 121 at [40]; Morgan v R [2017] NSWCCA 269 at [70].

26. [50]

    The sentencing judge, in a section of her ROS headed “Was the offender a willing and enthusiastic (as opposed to reluctant) participant in the conspiracies to import drugs?”, said this:

27. [51]

    Elsewhere in her ROS, the sentencing judge said this:

28. [52]

    It was in the light of those findings that the sentencing judge reached her conclusions as set out at [44] above.

29. [53]

    Two things emerge from those findings. First, it is clear that the sentencing judge gave full consideration to the issue of the applicant’s culpability in the light of the way that he came to be involved in the drug transactions. The conclusion that his culpability was diminished was all that needed to be said. The diminution cannot be expressed as a proportion or a percentage, nor otherwise quantified. The diminution of culpability simply falls into the instinctive synthesis.

30. [54]

    The only basis put forward for demonstrating that the sentencing judge had “erred in the evaluation of the significance” of her finding that the applicant would not have committed the offences but for UCO Zane, was the assertion, in oral submissions, that the effect given to the finding was de minimis, based on the difference between the notional starting points of the applicant’s indicative sentence for Sequence 1 and the sentence given to Dib in relation to the same charge. That assertion is not supported by the careful assessment the sentencing judge made of the issue of parity with Dib both in her ROS in respect of Dib and in the ROS in respect of the applicant.

31. [55]

    In the latter ROS, the sentencing judge said this:

32. [56]

    In the ROS regarding Dib, the sentencing judge said:

33. [57]

    There were other subjective matters distinguishing the applicant and Dib, which are dealt with below when discussing ground 4. The combination of these matters demonstrates that no inference can be drawn that the diminution in culpability was de minimis based on a comparison of the notional starting points.

34. [58]

    There is nothing else to suggest that the sentencing judge failed to give effect to her findings “by significantly reducing culpability”. A reading of her Honour’s ROS would not, in any event, suggest that the applicant’s culpability should have been significantly reduced. Her Honour’s conclusion that the applicant was neither a reluctant nor an unwilling participant, following her analysis of his involvement, led only to the finding that the offending conduct did not fall “into the highest order”.

35. [59]

    The second matter to emerge from her Honour’s analysis of the applicant’s involvement, is that no basis is shown for a conclusion that her Honour created a dichotomy between coercive and non-coercive behaviour on the part of UCO Zane. Her Honour, immediately before dealing with the impact of police involvement on the culpability of the applicant, had referred to the “valuable assistance” provided by what was said in Haval Kada.

36. [60]

    In Haval Kada the Victorian Court of Appeal, having examined the case law in relation to the involvement of a covert police operative, including R v Taouk and R v N [1999] NSWCCA 187; (1999) 106 A Crim R 493 said at [72]:

37. [61]

    It is apparent from the principles set out in that case that the Victorian Court of Appeal did not consider that there was any dichotomy between coercive behaviour on the one hand, and encouragement or inducement on the other hand. Rather, there was a “spectrum along which that impact is to be assessed”. When her Honour, an experienced criminal law judge, had referred to the principles from Haval Kada, before making reference to the issue of coercion, there is no basis for asserting that her Honour was adopting a different approach by creating the asserted dichotomy. Her Honour certainly did not say that, and there is nothing from which to draw an inference to that effect.

38. [62]

    Mr Game of Senior Counsel for the applicant submitted that what the cases were looking for was a sine qua non for the conduct. Here, he submitted, that had been found favourably to the applicant. He submitted that coercion or pressure would be an additional factor, but the authorities did not require pressure or coercion for the principle to apply. That may be accepted.

39. [63]

    Nothing the sentencing judge said suggested that the principle relating to reduced culpability arising from police involvement only applied if coercion or pressure was applied. Her Honour’s finding that culpability was diminished when no coercion or pressure was applied is testament to that. When pressed on where the error of principle was in her Honour’s conclusion at [242], Mr Game identified the parity issue in relation to Dib (dealt with above) and submitted that the effect of her Honour’s finding was that, unless an applicant could establish coercion or pressure, the reduction was de minimis. Her Honour does not say that; she said that the extent of the diminution was “not substantial”. That finding was clearly open on the analysis her Honour carried out of the applicant’s involvement and the relationship between him and UCO Zane.

40. [64]

    A similar approach was taken in Director of Public Prosecutions (Vic) v Kumas [2021] VSCA 215 where the Victorian Court of Appeal said at [65]:

41. [65]

    Grounds 1 and 2 should be rejected.

42. [66]

    When the sentencing judge came to consider the matters of specific and general deterrence, her Honour said:

43. [67]

    Although the applicant’s submissions were critical of the sentencing judge for not saying how matters of specific and general deterrence were ameliorated in the circumstances of this case, and although submissions were made that specific deterrence in particular was not of great weight, no submissions were made to the sentencing judge that deterrence in either form should not be considered significant. Indeed, the only submission made by the applicant concerning deterrence was made in the context of a submission that there was no criminal conspiracy between the applicant and Zane. The submission then said:

44. [68]

    Notwithstanding that the Crown’s written submissions before the sentencing judge made a number of references to the significance of both specific (personal) deterrence and general deterrence, the applicant said nothing about these matters either in written submissions in reply, or in oral submissions.

45. [69]

    Ground 3 is an attempt to raise for the first time on appeal, contrary to what was said in Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [79] to [81], an issue that was not before the sentencing judge.

46. [70]

    Mr Game SC accepted, in any event, that general deterrence was not to be discounted altogether, and the submission quoted above at [67] similarly accepted that specific deterrence is also a relevant factor where there is police involvement. Her Honour appropriately dealt with both specific and general deterrence. In the absence of there being raised before the sentencing judge an issue of how police involvement in the offending bore upon the consideration of specific and general deterrence, no error is shown.

47. [71]

    Ground 3 should be dismissed.

48. [72]

    I made reference earlier (at [4] above) to the sentence Dib received. I have set out (at [56] above) her Honour’s remarks when considering Dib’s role and matters of parity. I have also set out (at [55] above) her Honour’s remarks on parity with Dib when sentencing the applicant.

49. [73]

    The indicative sentence for the applicant for sequence 1 was 21 years’ imprisonment. Having regard to the 25% discount for the plea, that represented a notional starting point of 28 years’ imprisonment. Dib’s sentence was 18 years and 2 months. The notional starting point for that was 26 years’ imprisonment.

50. [74]

    The applicant submitted that the role of UCO Zane was not material to the sentencing exercise for Dib. In that way, no beneficial finding was available that Dib was not predisposed to committing this type of offence.

51. [75]

    The applicant submitted that it was Dib who increased the size of the importation in syndicate one, and it was Dib who facilitated sourcing the drugs. The applicant submitted, contrary to the sentencing judge’s findings (at [55] above), that Dib and UCO Zane forged material matters without the applicant’s involvement, and the applicant did not fit any of the pieces together to export the drugs. The applicant submitted that the assurances given to UCO Zane by the applicant about not getting ripped off provided no objective basis to discriminate in respect of the role of the two offenders.

52. [76]

    The applicant submitted, anticipating to some extent the basis of ground 5 of the appeal, that a comparable discount for utility meant that the sentencing judge failed to take account of the significance of the applicant abandoning a legal challenge to the legality of the operation.

53. [77]

    The Crown submitted that it was open on the evidence to conclude that the applicant’s role was slightly more serious than Dib; that the applicant’s role extended beyond making introductions, and that his ongoing presence and participation was regarded as guaranteeing the smooth running of both drug enterprises.

54. [78]

    The Crown submitted, as it had before the sentencing judge, that the substantial commission in drugs the applicant was to receive for the syndicate one transaction and the syndicate two transaction was an indicator of his importance and seniority. Further, the applicant knew the breakdown of the share of the drugs was satisfied with it. That indicated his seniority in the syndicates.

55. [79]

    In Wan v R [2017] NSWCCA 261 Beech-Jones J (Payne JA and Fagan J agreeing) said:

56. [80]

    Where the same judge sentences both offenders and gives detailed reasons for the sentences imposed on each offender, this Court will be cautious before determining that one of the offenders has a justifiable sense of grievance because of sentence outcomes: R v Swan [2006] NSWCCA 47 at [71]; Pavicevic v R [2010] ACTCA 25; R v Spizzerri [2001] VSCA 49 at [10]; Dwayhi v R; Bechara v R [2011] NSWCCA 67; (2011) 205 A Crim R 274 at [39]-[41]; Gill v R [2010] NSWCCA 236 at [58]; Lam v R [2014] NSWCCA 50 at [42].

57. [81]

    In regard to subjective cases, the similarities between the offenders were their somewhat deprived childhoods, their early exposure to drugs and violence, their criminal histories and length of time spent in custody for prior offending, and that both had experienced hardship in custody. Her Honour found the prospects of their rehabilitation to be guarded, and that they were both likely to be institutionalised. Both had elderly parents with whom there would be difficulties having future contact. In both cases, specific deterrence was a relevant consideration.

58. [82]

    In respect of differences, her Honour found that Dib was remorseful but she could not make such a finding for the applicant. In Dib’s case evidence was put forward about the effect of Covid on his incarceration. There was no such evidence in the applicant’s case, and the sentencing judge indicated during the sentencing hearing that she would not take account of it in the absence of evidence. The result was that the impact of Covid was taken into account for Dib as adding to the onerous conditions of custody. In addition, the sentencing judge took into account Dib’s extra-curial punishment of having been tortured in Dubai.

59. [83]

    As the ROS in each case shows, the sentencing judge carefully considered the roles of each of the offenders, and where each stood in the hierarchy. Whilst the applicant points to specific matters that he says should have been found or emphasised differently by the sentencing judge, all of the matters identified were carefully considered by her Honour.

60. [84]

    The other matter relied upon by the applicant is the point raised by ground 5, namely that a discount of greater than 25% should have been given for the plea because the applicant gave up the argument based on s 15GI(2)(f) of the Crimes Act, and what was said in Ridgeway at 91-92. For the reasons given in rejecting ground 5, no basis is shown for suggesting that 25% was not the appropriate discount for the utilitarian value of the plea.

61. [85]

    The ultimate difference between Dib’s sentence and the indicative sentence for the applicant was small, when regard is had to the notional starting points, and is explicable by the different findings as to role, position in the hierarchy, and subjective matters and findings. The disparity is not gross, marked or glaring.

62. [86]

    It may be accepted that error in an indicative sentence may reveal error in the aggregate sentence: PD v R [2012] NSWCCA 242 at [44]; Lee v R [2020] NSWCCA 244 at [32]. Further, there is no reason in principle why an indicative sentence may not be compared to an aggregate sentence if account is taken of the other sentences comprehended within the aggregate sentence: R v Clarke [2013] NSWCCA 260 at [68]. In the same way, an indicative sentence may be compared to an actual sentence for a single offence in the same terms: Smith (a pseudonym) v R [2022] NSWCCA 123 at [47]-[48].

63. [87]

    However. the difficulty in the present matter is that the disparity is said to be between the sentence Dib received and an indicative sentence in respect of the applicant. Ultimately, all that can be challenged by an applicant who has received an aggregate sentence is that sentence, and not any indicative sentence: Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36 at [227]; BJS v R [2013] NSWCCA 123; (2013) 231 A Crim R 537 at [252].

64. [88]

    In a case such as the present, where the applicant was sentenced for five offences with three others on s 16BA schedules, the applicant has the added difficulty of demonstrating that the aggregate sentence has been affected by a disparity in one of the indicative sentences. That will be the more so where the difference in the sentences is not large, although that may only be an indication that the disparity was not gross, marked or glaring in the first place.

65. [89]

    Ground 4 should be rejected.

66. [90]

    The applicant submitted that the sentencing judge, in according a discount of 25% for the utility of the plea, did not say anything about the benefit to the administration of justice of the applicant having foregone arguing the legitimacy of the controlled operation in reliance on s 15GI(2)(f) and what was said in Ridgeway. The applicant submitted that his plea was not an acceptance of the inevitable.

67. [91]

    The applicant submitted that this Court should make a finding that the foregone argument had some substance to it that would justify a discount over and above the 25% for an early plea.

68. [92]

    The Crown submitted that the subject of this ground of appeal was not put to the sentencing judge. Whether the argument was a strong or weak one is speculative and without evidentiary foundation.

69. [93]

    The Crown submitted that the discount for the utilitarian value of the plea was appropriate in all the circumstances.

70. [94]

    The Crown’s submission that this issue was not raised before the sentencing judge should be accepted. The issue argued concerning the controlled operation related to whether there could be a conspiracy between the applicant and UCO Zane when UCO Zane never intended to import border-controlled drugs. The applicant’s written submissions at the sentencing hearing relevantly said this:

71. [95]

    The legality of the operation was not put to the sentencing judge in the context of the plea, of its utilitarian value, or of the worth of the foregone argument.

72. [96]

    The ground now raised would require this Court to make an assessment of the worth of the foregone argument, despite Senior Counsel for the applicant eschewing that course. As this Court said in Zreika, this Court is a court of error. No error was made by the sentencing judge when she was not asked to carry out the task now put forward.

73. [97]

    Senior Counsel sought to suggest that the finding at paragraph [241] of the ROS, that the applicant’s culpability was diminished because there was no evidence he was contemplating engaging in the importation of drugs until it was put to him by UCO Zane, could be used to justify a discount greater than 25%. I do not agree. The finding is concerned with the applicant’s culpability, not with the utilitarian value of the discount or the worth of the foregone argument.

74. [98]

    In any event, the distinction between the utilitarian value of a plea and a willingness to facilitate the course of justice must be borne in mind. In Betka v R; Ghazaoui v R; Hawchar v R [2020] NSWCCA 191 Fullerton J said at [62] (Wilson and Ierace JJ agreeing):

75. [99]

    In the present case the sentencing judge accepted that, in addition to the utilitarian value of the plea, the plea represented a willingness to facilitate the course of justice because of the likely complexity of the trial. On the applicant’s argument in support of this ground, although not made to the sentencing judge, one aspect of the trial’s complexity was the issue of the legitimacy of the controlled operation with the implications that might have had for an application of s 138 of the Evidence Act 1995 (Cth). Any discount for facilitating the course of justice is not quantified. It is clear from what her Honour said at [3] and [4] of her ROS that it was a matter that she took that matter into account.

76. [100]

    In the circumstances that this argument was not raised before the sentencing judge, no error is shown.

77. [101]

    This ground should be rejected.

78. [102]

    The applicant submitted that an aggregate sentence of 30 years was excessive where there has been a reduction of 25% for guilty pleas on the indicative sentences, in circumstances where the appropriate penalty was to deter the applicant in order to protect the community and deter others. The applicant submitted that the critical sentencing purposes of deterrence, harm, rehabilitation and protection all pointed in a direction favourable to the applicant.

79. [103]

    The applicant submitted that, taking into account the 25% discount on the indicative sentences, a notional starting point for the aggregate sentence should be seen as being 40 years. That was a manifestly excessive starting point for the offending. The applicant submitted that the notional accumulation in respect of the tobacco offences was too great when regard was had to the indicative sentences for the narcotics offences. The applicant submitted that the narcotics offences were not separate from the tobacco offences, so that the principle of totality ought to have produced a lesser sentence, with less notional accumulation.

80. [104]

    The applicant submitted that the sentence should, in any event, be ameliorated by the circumstances of the applicant’s being brought into the offending as a result of the police operation.

81. [105]

    The Crown submitted that both specific and general deterrence were significant considerations in the offending.

82. [106]

    The Crown submitted that there were five discrete and independent offences, together with three other offences on s 16BA schedules. Each of the offences involved separate criminality. The indicative sentences totalled 65 years and 6 months, whereas the aggregate sentence was 30 years. The Crown submitted that this could hardly be described as a substantial degree of accumulation. In any event, the sentencing judge was careful to address questions of accumulation and totality.

83. [107]

    The Crown submitted that an aggregate sentence of 30 years does not fall outside the range of sentencing options reasonably available to the sentencing judge.

84. [108]

    The principles governing a consideration of manifest excess are well known. They have recently been summarised by Bell P (as his Honour then was) in He v Sun (2021) 104 NSWLR 518; [2021] NSWCA 95 at [41]-[42]. In relation to whether an aggregate sentence is manifestly excessive, Fullerton J (with whom McCallum JA and Walton J agreed) in Burke v R [2022] NSWCCA 6 said:

85. [109]

    A recent example of where that principle was applied to vary the aggregate sentence by reason of error in one of the indicative sentences is Stevenson v R [2022] NSWCCA 133 at [123]-[124].

86. [110]

    In my opinion, the undiscounted indicative sentences for the narcotics offences (of 28 and 30 years) fall outside the range of reasonable sentences in the circumstances of the offending in this case. The sentencing judge found that there was no evidence that the applicant was contemplating or engaging in drug-related activity before the opportunity was presented to him by UCO Zane. That meant, on her Honour’s findings, that the offending was not of the highest order, and the applicant’s culpability was diminished.

87. [111]

    A useful comparable case is Jomaa v R [2022] NSWCCA 112. The applicant pleaded guilty to attempting to import a commercial quantity of a border-controlled drug being 200 kg (154 kg pure weight) of MDMA said to be worth between $7.4 and $8.8 million wholesale. The applicant became involved after being contacted by a UCO. The applicant had a very senior and prominent role in the organisation, and played an essential role right through the operation. His involvement was not procured through threats, persistent importuning or by the offers of rewards and inducements. The UCO proposed the scheme with financial benefits for those involved. The applicant was not naïve, and involved himself expecting a significant financial return.

88. [112]

    Like the present applicant, he seems to have had a difficult childhood including difficulties with education. He experienced difficulties in custody both in Australia and in Dubai where he was arrested.

89. [113]

    At first instance he was sentenced, with a 25% discount for an early plea, to 21 years with a non-parole period of 14 years. The notional starting point was 28 years imprisonment. He was resentenced (by majority) to 18 years with a non-parole period of 12 years, with Hamill J of the view that a starting point of 28 years was manifestly excessive. This case provides assistance, particularly in relation to the appropriate sentences for sequences 1 and 2.

90. [114]

    Although in the present case there were five separate offences, the offending was inter-related in terms of timing and the use of funds obtained from the tobacco offences to fund the narcotics importations. Even without a reduction of the indicative sentences for the narcotics offences, the notional accumulation of the tobacco offences on the narcotics offences seems to me to be plainly unreasonable.

91. [115]

    Where the two longest indicative sentences fall outside the range for this offending, and where the notional accumulation is unreasonable, the aggregate sentence was plainly unjust.

92. [116]

    Ground 6 should be upheld.

Resentence

1. [117]

   No specific submissions were made by the parties with regard to resentence. The applicant simply sought a lesser penalty.

2. [118]

   This Court’s responsibility is to exercise the sentencing discretion independently, although it may rely on findings made by the sentencing judge if those findings are appropriate. The Crown has helpfully summarised the sentencing judge’s principal findings.

3. [119]

   I agree with her Honour’s findings in relation to the following matters:

4. [120]

   The applicant submitted that, in the event that the Court came to resentence the applicant, the preferable course would be not to impose an aggregate sentence, but to sentence for each of the offences, by reason of s 19(2) of the Crimes Act, which provides:

5. [121]

   This Court determined in Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; (2017) 270 A Crim R 556 at [141]-[146] that s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the section which authorises aggregate sentences for multiple offences) applies to Commonwealth offences: and see also R v Delzotto [2022] NSWCCA 117 at [2], noting the reservations expressed by Brereton JA in Patel v R [20222] NSWCCA 3 at [71]-[74]. Whether a sentencing judge imposes separate sentences or an aggregate sentence is a matter for the judge’s discretionary judgment: Beattie at [147].

6. [122]

   By reason of the inter-relationship of the offences, both as to time, money and those involved, I consider that an aggregate sentence is appropriate.

7. [123]

   In my opinion, the followings sentences should be indicated:

8. [124]

   I propose an aggregate sentence of 25 years with a non-parole period of 15 years.

Conclusion

1. [125]

   I propose the following orders:

2. [126]

   HALLEN J: I agree with Davies J.