Dib v Rex

1. [1]

   SIMPSON AJA: On 18 December 2018 in the Local Court in Sydney the applicant entered a plea of guilty to a charge of conspiracy to import a commercial quantity of a border-controlled drug (MDMA), an offence against ss 11.5(1) and 307.1(1) of the Criminal Code (Cth). The offence carries a maximum penalty of imprisonment for life. The applicant was committed for sentence to the District Court.

2. [2]

   On 27 April 2020 the applicant was sentenced by Yehia DCJ (“the sentencing judge”) to imprisonment for 18 years and 2 months, commencing on 8 August 2017 and expiring on 7 October 2035, with a non-parole period of 12 years, which will expire on 7 August 2029: R v Mostafa Dib [2020] NSWDC 145.

3. [3]

   The applicant now seeks leave to appeal against the asserted severity of the sentence. In order to do so he requires, and seeks, an extension of time. As I have concluded that Ground 2 of the proposed appeal should be upheld, I would grant an extension of time, and grant leave to appeal.

Factual background

1. [4]

   The relevant facts were put before the sentencing judge in a lengthy and detailed agreed Statement of Facts, which disclosed the following.

2. [5]

   Over a period of 6 months commencing on February 2017 and ending in August of that year (with his arrest) the applicant engaged, with a number of others, in an arrangement to import from the Netherlands a large quantity of MDMA. The plan, initially made in January 2017, was to import 180 kg of the drug. Participants in the arrangement were the applicant, Moustafa Ibrahim, Ryan Watsford, Ahmad Ahmad and Hussan Fakhreddine. Purporting to be a member of the conspiracy was an undercover police officer, known as “Zane”. The source of the drug was to be a Turkish-Australian man living in Dubai, Hakan Arif, who liaised with Fakhreddine.

3. [6]

   The agreed Statement of Facts shows that, from the commencement of the conspiracy, the applicant was actively engaged in the execution of the plan. He contributed $25,000 to be paid to a facilitator, and agreed to contribute a further $50,000, with another $50,000 to be contributed by Ahmad. Later, when the price for the drug increased, he agreed to contribute a further $126,000, jointly with Ahmad. Throughout the period of the conspiracy the applicant was actively involved in communications with co-conspirators. Negotiations included negotiations for an increase in the quantity of the drug to be obtained. By May 2017 the proposal was for the importation of 800 kilograms of MDMA and 50 kilograms of cocaine.

4. [7]

   An arrangement was made for a “handover” of the drug in the Netherlands for 21 May 2017. That handover did not eventuate (for reasons which it is not necessary to go into). A second handover was arranged for 26 May, which was completed, with the applicant involved in transferring the payment of $1,120,000 in Australia. The drug was seized by Netherlands police. What was seized was just under 800 kilograms of MDMA, of purity between 71% and 78.1%. The pure weight was 594.43 kilograms. This amount was the subject of the applicant’s plea of guilty. It appears that the conspirators were not aware of the seizure of the drugs because they continued to make arrangements for the collection of the drugs on their anticipated arrival in Australia. There were also negotiations about the division of proceeds.

5. [8]

   On 30 July 2017 the applicant travelled to Dubai, where he was joined two days later by Moustafa and Fadi Ibrahim. On 7 August Zane joined the group. That evening the men were arrested by Dubai police.

6. [9]

   The applicant remained in custody in Dubai until 17 September 2017, when he was extradited to Australia. He alleged that he suffered mistreatment (“torture”) at the hands of Dubai police by being tasered about 10 times (notwithstanding that he was cooperating with authorities and was restrained); that he suffered a shoulder injury as a result of mistreatment and rough handling by Dubai authorities; that he was denied legal assistance; and that he was required to sign a document in Arabic, a language he did not understand.

7. [10]

   The sentencing judge accepted that the applicant expected to receive, as his reward for his participation in the importation, the sum of $1,476,000, or between 26.17 kilograms and 28.79 kilograms of pure MDMA.

8. [11]

   The applicant did not give oral evidence in the sentencing proceedings. He affirmed an affidavit on 31 January 2020. From that, and other evidence to which I will refer, the following emerges. The applicant was born in December 1982, of Lebanese immigrants. His parents are devout Muslims. The applicant is one of 5 male children, one brother having died at the age of 3 when struck by a car, an event that was devastating for the family. An older brother had taken to criminality. The applicant was exposed to his brother’s friends, many of whom are now serving prison sentences for murder.

9. [12]

   The applicant has a criminal history dating back to 1999 (when he was 17 years of age). In 2002 he entered a plea of guilty to a charge of manslaughter, an offence committed when he was 15 years of age. He was sentenced to imprisonment for 10 years with a non-parole period of 5 years, which expired on 25 May 2006. In 2004 the applicant was convicted of supplying prohibited drugs and sentenced to imprisonment for 6 years with a non-parole period of 4 years.

10. [13]

    The applicant explained the circumstances in which he committed the manslaughter. He said that it was a “tragic mistake” that he had always regretted. He said that he saw “a bunch of Asian kids” fighting his brother and others in a brawl, and his brother get knocked to the ground. He (the applicant) panicked, ran back to his house, obtained a knife and joined in the fight to assist his brother. He stabbed one of the youths who subsequently died.

11. [14]

    The applicant said that in March 2000 he was charged with a shooting offence, in relation to which he spent almost six months in custody on remand before being found not guilty at trial.

12. [15]

    In 2000 the applicant was charged with the murder of Anita Vrzina, who had died by shooting in November 2000. The prosecution of the charge was tortuous. Two trials, fixed for September 2003, were aborted for reasons it is not necessary to explore. Three dates in 2005 and 2008 later fixed for the commencement of the trial were vacated. In 2008 the Director of Public Prosecutions filed a nolle prosequi, but recommenced the proceedings in 2011. In November 2012 the applicant was convicted of the murder and sentenced to imprisonment for 35 years with a non-parole period of 25 years: R v Dib [2012] NSWSC 1431. In February 2016 an appeal against the conviction was upheld and a verdict of acquittal entered: Dib v R [2016] NSWCCA 15. The applicant was released. He had by that time served 1345 days (3 years, 8 months and 6 days) in custody referable to that charge, comprising 29 days on remand in 2000 when he was first charged with the offence, and 1316 days from his conviction in November 2012 through to his acquittal in February 2016.

13. [16]

    The applicant said that on his release he found it difficult to adjust to life in the community and became a regular user of MDMA. He suffered depression and a persistent preoccupation with the injustice of his incarceration.

14. [17]

    The applicant explained his involvement in the present offence by saying that he wanted to repay his family for significant sums that they had raised for his defence of the murder charge and the subsequent appeal. In an affidavit, his solicitor, Ms Parker, estimated that the fees paid on behalf of the applicant by members of his family amount to a little under $800,000.

15. [18]

    The applicant also relied on a report of Dr Stephen Allnutt, a forensic psychiatrist. Dr Allnutt recorded the history he took from the applicant, which included his use of MDMA after his 2016 release from prison. Dr Allnutt recorded symptoms of depression, which he considered to be consistent with “a chronic adjustment disorder with a depressed and anxious mood”. He said:

16. [19]

    Dr Allnut considered the applicant’s prospects for rehabilitation to be “relatively positive”.

17. [20]

    The sentencing judge accepted that the applicant’s plea of guilty had been entered at the earliest available opportunity and allowed a reduction of 25% on the sentence she otherwise would have imposed. To that she added a further reduction of 5%. Her Honour considered that the applicant was “a willing and enthusiastic participant” in the conspiracy. Her Honour found:

18. [21]

    With respect to the applicant’s role in the conspiracy her Honour found that the enterprise comprised two groups, one based in the Netherlands and one in Australia, and that the applicant was engaged in bringing the two groups together for the purpose of facilitating the importation. While she declined to find that the applicant’s role was limited to being a “conduit” or “intermediary”, she also was not persuaded that the applicant was a “high level organiser or ‘lynchpin’ in the enterprise”, and that ultimate decision making was left to others more senior in the hierarchy. More important participants were Zane and a man called Arif (in the Netherlands). Her Honour considered that Moustafa Ibrahim played a significant role in the Sydney-based group, second to that of Zane, and superior to that of the applicant.

19. [22]

    The sentencing judge was not satisfied that the applicant’s mental health issues were causally connected to his involvement in the conspiracy.

20. [23]

    Her Honour took into account what she called “the significant period of uncredited custody” arising out of his incarceration for the murder of Anita Vrzina as part of the applicant’s subjective case. She did not identify any specific reduction in the sentence attributable to that circumstance. She declined to take that period into account by directly backdating the sentence, or reducing the length of the sentence, as she had been urged to do. The course taken by her Honour in that respect was in accordance with established authority in this State, which will be discussed below.

21. [24]

    Her Honour did take into account specific evidence concerning the conditions of custody made more onerous by reason of the restrictions on association and visits due to the COVID-19 pandemic. She also took into account the circumstances of the applicant’s incarceration for 5 weeks in the Dubai prison system, including the tasering.

22. [25]

    Referring to his history of offending, and notwithstanding the opinion of Dr Allnutt, her Honour expressed herself to be guarded about the applicant’s prospects of rehabilitation.

23. [26]

    Her Honour then considered questions of parity. At that time she had sentenced Watsford but had not sentenced the other conspirators.

24. [27]

    Watsford was sentenced by way of aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”). The sentence indicated by her Honour referable to the conspiracy offence had a starting point of 16 years. Her Honour considered that Watsford’s case was distinguishable on a number of bases. Parity with the sentence imposed on Watsford is not an issue in the present application.

25. [28]

    Having applied the total reduction of 30% earlier referred to, her Honour imposed on the applicant a sentence of imprisonment made up of a non-parole period of 12 years with a balance of term of 6 years and 2 months. The starting point was therefore a sentence of imprisonment for 26 years with a non-parole period of 17 years.

26. [29]

    On 20 May 2020 the sentencing judge sentenced Moustafa Ibrahim: R v Ibrahim, Moustafa [2020] NSWDC 254 (“Ibrahim”). Ibrahim stood to be sentenced for five offences, the first of which was the conspiracy that involved the applicant. He was also sentenced for a second conspiracy to import a commercial quantity of drugs, and three counts of money laundering, contrary to s 400.3(1) of the Criminal Code (Cth). Three further offences, one of aiding and abetting, counselling or procuring the trafficking of a commercial quantity of MDMA (ss 302.2(1) and 11.2(1) of the Criminal Code (Cth)), one of smuggling tobacco products (s 233BABAD(1) of the Customs Act 1901 (Cth)) and another of money laundering, were taken into account pursuant to s 16BA of the Crimes Act 1914 (Cth). Pursuant to s 53A of the Sentencing Procedure Act her Honour imposed an aggregate sentence of imprisonment for 30 years with a non-parole period of 18 years. In accordance with s 53A(2)(b) her Honour indicated that, if sentencing separately for the first conspiracy offence (that is, that involving the applicant) she would (after a reduction of 25% referable to Ibrahim’s plea of guilty) have imposed a sentence of imprisonment for 21 years. The starting point for the indicative sentence for that offence was therefore imprisonment for 28 years.

27. [30]

    Her Honour considered that Ibrahim played a “slightly more serious role” than the applicant, and held a position “slightly higher” in the organisation than the applicant.

28. [31]

    Ibrahim appealed against the aggregate sentence imposed. The appeal was allowed, the aggregate sentence quashed and a sentence of imprisonment for 25 years with a non-parole period of 15 years was substituted: Ibrahim v R [2022] NSWCCA 161. The Court rejected a parity ground based on the sentence imposed on the present applicant, but expressly held that the undiscounted starting point for the indicated sentence on the first conspiracy charge (28 years) fell outside the range of reasonable sentences in the circumstances of the offending (that is, if imposed as a sentence for the offence, it would have been manifestly excessive). The Court indicated that, if sentencing separately for that offence, it would (after 25% reduction) have imposed a sentence of imprisonment for 18 years. It can be calculated that the starting point for that sentence was 24 years.

The proposed grounds of appeal

1. [32]

   The applicant seeks to rely on three grounds of appeal, as follows:

Ground 1: failure to backdate to take account of time served in custody

1. [33]

   Ground 1 concerns the period, in excess of 3½ years, which the applicant spent in custody following conviction for an offence of murder of which he was subsequently, on appeal, acquitted. The sentencing judge also acknowledged the earlier period that the applicant had spent in juvenile custody in respect of charges of which he was also subsequently acquitted. On her Honour’s calculation the total period of custody, ultimately not referable to any conviction, was “in the order of 5½ years”.

2. [34]

   The sentencing judge took that time into account as part of the applicant’s personal circumstances, but declined to go further and identify a discrete reduction in sentence, or to backdate the sentence by that or some other period of time as she had been asked to do. Her Honour gave detailed reasons for taking that course. She considered herself bound to do so by a previous line of authority in this Court. That line of authority commenced with the decision in R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep) (“Niass”), and was confirmed by a bench of five judges in Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 (“Hampton”).

3. [35]

   On behalf of the applicant it was submitted in this Court that her Honour was incorrect and ought to have made specific allowance for the time served in custody on matters unrelated to the present offence and which, as later events showed, ought not to have been served. It was acknowledged that the proposition was contrary to established authority in this State. It was nevertheless maintained that account should be taken of the period spent in custody unrelated to the present offence, either by backdating or by a reduction in the total sentence imposed (which I take to mean a quantified reduction).

4. [36]

   In Niass the offender was convicted in a jury trial on a charge of supplying Indian Hemp. Prior to that he had spent a period of just over one year in custody on quite unrelated charges of which he was subsequently acquitted. The sentencing judge in that case was asked, but declined, to take into account that period in sentencing on the Indian Hemp charge. On appeal it was contended that it was erroneous for the sentencing judge not to give credit for the period of incarceration on the charges for which Mr Niass was acquitted. Lee CJ at CL, with whom Gleeson CJ and Allen J agreed, said:

5. [37]

   Left to myself, having regard particularly to the final words in this extract, I might not have interpreted his Honour as having stated a general principle of law. Others have taken a different view. In R v John David (Court of Criminal Appeal (NSW), 20 April 1995, unrep) James J (with whom Ireland J agreed) rejected an argument which his Honour paraphrased as:

6. [38]

   James J said:

7. [39]

   As is apparent from the last paragraph of this extract, the Court in David was constituted, pursuant to s 6AA(1) of the Criminal Appeal Act 1912 (NSW), by two judges. As is clear from s 6AA(2), it was not the intention of the legislature that the Court so constituted would resolve disputed issues of general principle.

8. [40]

   James J cited R v Webster; R v Jones (Court of Criminal Appeal (NSW), 3 August 1992, unrep) (“Jones”) and R v Chi Luong Chung (Court of Criminal Appeal (NSW), 9 March 1994, unrep) as examples of cases in which Niass had been treated as laying down “a settled general rule”, and said:

9. [41]

   In Jones it was argued that the applicant should be given credit for time he had spent in prison following a conviction for a corruption offence, of which he was, on appeal, acquitted. Gleeson CJ, with whom Hunt CJ at CL and Mathews J agreed, disposed of that ground by saying that to take such a course would be “contrary to authority and to principle” (citing Niass).

10. [42]

    The decision in Chung was to similar effect. The Court also rejected a contention that a period of custody unrelated to any conviction would have had adverse effects on Chung’s vulnerability, on the basis that no evidence had been adduced to support the proposition.

11. [43]

    In Hampton a five-judge bench of this Court was convened to address a ground of appeal that contended that cases following Niass were wrongly decided. The evidence in Hampton appeared to show that Mr Hampton had spent a period (of almost 3 months) in custody that could not be related to any offence of which he had been convicted.

12. [44]

    The judgment in this Court records (at [26]) that:

13. [45]

    Reliance was placed in that case on decisions of courts of criminal appeal in other States said to be contrary in effect to Niass. Johnson and Bellew JJ, with whom Gleeson JA and Price and Garling JJ agreed, referred to Niass, and identified cases in which events occurring during the period of custody may bear upon the issue of a subsequent sentence, and said:

14. [46]

    Their Honours accepted that the assessment of an offender’s personal circumstances may be affected by events that occur during, or as a consequence of, the undeserved period of custody: see, for example, R v Evans (Court of Criminal Appeal (NSW), 21 May 1992, unrep).

15. [47]

    Curiously, (notwithstanding a ground of appeal that explicitly asserted that “the cases following the line of authority established by Niass … are wrongly decided”), the judgment in this Court records (at [33]) that Mr Hampton:

16. [48]

    Their Honours considered (at [37]) that, even if some error were demonstrated, proper examination of the period of custody could not lead to a result more favourable to Mr Hampton. Their Honours identified circumstances adverse to Mr Hampton (that the offences for which he was sentenced were committed while he was on conditional liberty, and were committed within 3 days of his release on the matters that gave rise to the previous custody) that had not been taken into account on sentencing. Their Honours also took into account the relatively small period of time involved.

17. [49]

    An application for special leave to appeal to the High Court was refused: Nicholas Hampton v The Queen [2015] HCASL 76. The Court (Bell and Gageler JJ) noted the reasons of Johnson and Bellew JJ, and considered that:

18. [50]

    In SY v R [2020] NSWCCA 320, the applicant had served 179 days in custody in relation to a charge that was subsequently withdrawn. He came for sentence on unrelated drug and firearms charges. In this Court he claimed that a miscarriage of justice had occurred because the sentence on the drug and firearms charges had not been backdated to take account of the 179 days spent in custody on the charge that did not proceed.

19. [51]

    This Court (Hoeben CJ at CL, Price and Fagan JJ) rejected the argument, citing Niass and Hampton, and saying (at [48]):

20. [52]

    It is thus well – and consistently – established that, in this State, offenders will not be given quantified reductions in sentence to take account of periods spent in custody other than those referable to the offence or offences for which sentence is to be imposed and neither will sentences be backdated to achieve the same result. The applicant sought therefore, again, that an expanded bench be convened to consider the decision in Niass. The Chief Justice declined to do so.

21. [53]

    Notwithstanding that, while recognising the obstacles in the way of overturning a prior decision of this Court, particularly so where the prior decision involves a unanimous decision of five judges, the applicant again contended that his period of incarceration ought to have been given greater recognition than simply being taken into account as part of his subjective circumstances. His final submission was:

22. [54]

    As had Mr Hampton, the applicant relied on decisions in other States which, he contended, established a “common law principle” contrary to the Niass line of authority. The question for determination that arises out of the applicant’s submissions is whether this Court ought to depart from its own consistent previous decisions in favour of following decisions of other jurisdictions.

23. [55]

    The principles and authorities applicable were extensively and comprehensively canvassed by the Court of Appeal in Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 at [261]-[301]. An appeal to the High Court was dismissed (Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12) but the issue of departure from previous decisions was not a subject of appeal.

24. [56]

    The Court of Appeal did not doubt that an intermediate appellate court has power to depart from its own earlier authority: [281]. The question was in what circumstances is it appropriate for such a court to do so. Adopting a clause from Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 100, the Court considered that, before departing from an earlier decision, the court “must entertain a strong conviction as to the incorrectness of the earlier decision”: [284]. The court considered that the existence of two attributes is “a precondition to the exercise of the power to depart from earlier authority”: [294]-[295]. The two attributes are:

25. [57]

    The Court expressly recognised that issues might arise where conflicting decisions have been made in courts of co-ordinate jurisdiction in other States. Their Honours said at [278]:

26. [58]

    Reference should also be made to Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492; [1993] HCA 15 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 at [135] (“Farah Constructions”).

27. [59]

    In Totaan v R [2022] NSWCCA 75 at [72] Bell CJ (with whom Gleeson JA and Harrison, Adams and Dhanji JJ agreed), summarised the principles drawn from Gett as:

28. [60]

    In an effort to displace the Niass principle, the applicant placed heavy reliance on decisions in other States, as had the applicant in Hampton. Of those decisions, Johnson and Bellew JJ said in Hampton at [34]:

29. [61]

    The applicant’s argument began with the uncontroversial proposition that there is a single common law of Australia: see Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-3; [1997] HCA 25; Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 at [45]-[46]; Farah Constructions at [135]; S v Boulton [2005] FCA 821; 155 A Crim R 152 at [30]-[31] (Kiefel J).

30. [62]

    The applicant’s next proposition is more controversial. It was that there exists a common law principle of sentencing (contrary to the line of authority in NSW beginning with Niass and cited above), that, where an offender has served time in custody in relation to an offence of which he or she is ultimately acquitted (or discharged), he or she is entitled to have that time specifically taken into account in sentencing for a subsequent unrelated offence.

31. [63]

    When pressed to identify with precision the “common law principle” on which he relied, senior counsel said:

32. [64]

    The “common law principle” propounded by the applicant was drawn from a series of cases decided in the Victorian Court of Appeal. Each decision involved sentencing in the context of s 18(1) of the Sentencing Act 1991 (Vic) which, at the time, required (unless the court otherwise ordered) that any period of time spent in custody in relation to proceedings for “the offence” (that is the offence for which sentence was to be passed) “and for no other reason”, “be reckoned as a period of imprisonment already served under the sentence”. Put more simply, s 18(1) mandated that pre-sentence custody, solely referable to the offence for which sentence was to be passed (unless the court otherwise ordered), be treated as part of the sentence (already served). It was the words “and for no other reason” that gave rise to the decisions on which the applicant relies.

33. [65]

    Those decisions began with R v Heaney (Court of Appeal (Vic), 27 March 1996, unrep) (“Heaney”). Ms Heaney was held in custody in relation to a drug trafficking offence. She was later charged with murder and remanded in custody. From that date her custody was not solely referable to the drug trafficking offence and, accordingly, did not come within s 18(1) of the Sentencing Act for the purpose of counting as part of the sentence to be imposed for that offence.

34. [66]

    Brooking JA (with whom the other members of the court agreed) considered that, notwithstanding that the period of custody from the date of the murder charge was not, by s 18(1), required to be considered as part of the sentence to be imposed on the drug trafficking charge, nevertheless:

35. [67]

    That decision was endorsed in R v Renzella [1997] 2 VR 88 (“Renzella”). The offence for which Mr Renzella was sentenced was an offence of conspiracy to cheat and defraud. By the time he was sentenced (having been found guilty by a jury) he had spent 314 days in custody, but the whole of that time appears to have been referable both to the conspiracy offence and other offences with which he was charged. Section 18(1) of the Sentencing Act did not require any of that time to be “reckoned as a period of imprisonment already served” for the conspiracy offence because it was not solely referable to that offence. The sentencing judge nevertheless reduced the sentence he otherwise would have imposed by 45 weeks to take account of part of that period. The Director of Public Prosecutions appealed, contending that Mr Renzella’s pre-sentence custody was not in relation to the offence for which he had been sentenced “and for no other reason” (or solely referable to that offence). The Court of Appeal accepted that that was the case. The Court held that s 18(1) of the Sentencing Act did not exclude the discretion exercised by the Court in Heaney. The Court said:

36. [68]

    A number of decisions since Renzella have applied what has become to be called “the Renzella discretion”. It is that that the applicant contends constitutes the “common law principle” which he says is to be applied in his sentencing. One case on which the applicant placed reliance is Thurlow v The Queen [2021] VSCA 71. By the time Thurlow was decided, s 18(1) of the Sentencing Act had been amended by the deletion of the words “and for no other reason”. It appears that Mr Thurlow had spent 181 days in custody, not related to the offences for which he was sentenced, but from which he had not been given credit in other sentencing. The Court (Priest and Kaye JJA) said at [42]:

37. [69]

    The first thing to observe is that the so called “principle” drawn from Heaney and Renzella says nothing about taking into account periods of custody or detention entirely unrelated to the offence for which sentence is to be passed. In each of those cases the detention was “doubly warranted” to use the terminology adopted by the Victorian Court of Appeal – that is, partly attributable to the offence for which the offender was to be sentenced, and partly attributable to other offences or charges. The applicant’s proposition is that entirely unrelated custody should also be taken into account, on the approach stated in Renzella.

38. [70]

    The Victorian Court has been more circumspect about taking into account pre-sentence custody in sentencing for unrelated offences. In R v Arts and Briggs [1998] 2 VR 261; (1997) 93 A Crim R 56 the period of pre-sentence custody came into the category of custody that was “doubly warranted” and therefore not within s 18(1). Callaway JA said:

39. [71]

    In R v Stares (2002) 4 VR 314; [2002] VSCA 70 (“Stares”) the offender had, for a period, been held in custody in relation to charges that were later withdrawn. Part of that period did not overlap with custody for the offence for which he was subsequently to be sentenced. That period was not taken into account when he came to be sentenced for the other offences. Charles JA (with whom Phillips CJ and Chernov JA agreed) said at [27] that that was a period of pre-sentence detention “which, consistently with the decision in Renzella, should have been taken into account at the first opportunity and not left to a court imposing a later sentence.”

40. [72]

    In Warwick v The Queen [2010] VSCA 166; 201 A Crim R 580 (“Warwick”) the offender had spent time in custody with respect to offences committed in company of which he was convicted, and another earlier period of time in respect of unrelated charges of which he was later acquitted. The sentence imposed on Mr Warwick in respect of the offences committed in company was significantly more lenient than those imposed on his co-offenders and subject to an “exceptionally low” non-parole period. The difference in sentencing was explained by the sentencing judge and attributed by the Court of Appeal to the time spent in custody in relation to the unrelated matters. Maxwell P and Weinberg JA said:

41. [73]

    These cases were reviewed in Karpinski v R (2011) 32 VR 85; [2011] VSCA 94; 207 A Crim R 429 (“Karpinski”). Karpinski was decided after the amendment to s 18(1) of the Sentencing Act by which the words “and for no other reason” were deleted. Mr Karpinski was charged with and pleaded guilty to offences of car theft and armed robbery. He had previously been charged with attempted murder, a charge in which the Crown later entered a nolle prosequi. There appears to have been a period of 8 months during which Mr Karpinski was held in custody in relation to the attempted murder charge and not in relation to the offence for which he stood to be sentenced.

42. [74]

    Tate JA said at [29]:

43. [75]

    Her Honour went on to say:

44. [76]

    Her Honour then went on to say at [60]:

45. [77]

    After referring to Stares and Warwick, her Honour concluded at [63]:

46. [78]

    In the same case Weinberg JA said:

47. [79]

    An example of a Victorian case in which detention entirely unrelated to the offences for which sentence was being passed was taken into account is R v Kotzmann [1999] 2 VR 123; [1999] VSCA 27; 105 A Crim R 243 (“Kotzmann”). Mr Kotzmann had spent almost two years on remand in a South Australian jail before being acquitted. During that time he had begun to use heroin. He then pleaded guilty in Victoria to two counts of armed robbery, one count of attempted armed robbery and two counts of theft. Callaway JA (with whom Phillips CJ and Batt JA agreed) said, at [42]:

48. [80]

    The applicant has identified no “common law principle” in the terms that he propounds. The most he can show is that, in some cases (Kotzmann being an example) some recognition has been given to periods of custody entirely unrelated to the offence or offences for which sentence is to be passed.

49. [81]

    These cases do not establish a “common law principle” which this Court would be obliged to, or should, follow. As the survey above indicates, there is no firm or clear principle which justifies the extension of the discretion identified in Heaney and Renzella beyond the statutory and factual context in which it was developed. As Johnson and Bellew JJ commented in Hampton, the practice in Victoria developed out of a statutory provision that may have been seen to restrict (and was argued by the Director of Public Prosecutions in Renzella to have restricted) the ability of the court to take into account pre-sentence custody other than that directly referable to the offence for which sentence was to be passed. In subsequent cases, that practice was sometimes expanded without explanation of why that expansion was justified. The applicant’s argument did not address why those authorities in Victoria or other States that deviate from the position adopted in NSW following the decision in Niass should prevail over Niass and those decisions that follow it. In this respect, it is notable that the decisions in Victoria appear to have proceeded without any reference to Niass or its successor cases.

50. [82]

    The applicant also relied on appellate decisions of other states. It is sufficient to say that a survey of the cases identified does not establish any common law principle of the kind propounded. In many instances the decisions are addressed to specific statutory provisions. Almost all concern “doubly warranted” custody: see, for example, Narkle v Hamilton [2008] WASCA 31; R v Skedgwell [1999] 2 Qd R 97; [1998] QCA 93; Ainsworth v R [2000] QCA 163; and R v Fabre [2008] QCA 386. The existence of a discretion to take into account uncredited custody which was not “doubly warranted” was expressly denied in R v Sprecher (2015) 123 SASR 15; [2015] SASCFC 76 at [27]-[32] (Kourakis CJ, Gray and Stanley JJ agreeing); see also R v Al-Zuain (2009) 103 SASR 567; [2009] SASC 123 at [89], [93] (Vanstone J), cf [73]-[74] (Sulan J). In this respect, the position in, at least, South Australia mirrors that in New South Wales. At most it may be seen that, in some circumstances, appellate courts in some jurisdictions (notably Tasmania) have exercised a discretion to make some allowance for pre-sentence custody unrelated to the offence for which the sentence is to be passed: see Carr v The Queen (Court of Criminal Appeal (Tas), 18 March 1993, unrep); Geale v Tasmania (2009) 18 Tas R 338; 195 A Crim R 252; [2009] TASSC 28.

51. [83]

    The substratum of Ground 1 of the proposed appeal has not been established. That is sufficient to dispose of that Ground. It should be rejected. There is, however, a more fundamental consideration.

52. [84]

    Not to be overlooked is that the offending here in question was offending against federal law. Although the applicant noted, almost in passing, the desirability of consistency in sentencing for federal offences, he paid scant – indeed no – attention to the relevant statutory provisions. Sentencing for federal offences is, to a large extent, regulated by Pt 1B of the Crimes Act 1914 (Cth).

53. [85]

    Section 16A(1) of the Crimes Act (Cth) provides:

54. [86]

    Subsection (2) of s 16A sets out a list of matters which, if relevant and known to the court, must be taken into account in sentencing federal offenders. That list is expressed to be “[i]n addition to any other matters”. Item (k) in the subs (2) list is:

55. [87]

    Section 16E of the Crimes Act (Cth) provides:

56. [88]

    Nothing in sub-ss (2) or (3) of s 16E addresses the present question. Subsection (2) applies only to State or Territory laws that permit the sentencing court to either reduce or backdate a sentence or non-parole period to reflect time spent by the offender in custody “for the offence” for which the offender is being sentenced (emphasis added). Subsection (3) specifically requires (where it applies) that account be taken of pre-sentence custody referable to “the offence concerned”. Neither provision says anything of pre-sentence custody attributable to other offences or charges. On one reading, subs (1) might pick up a law of a State or Territory that required or permitted a court to backdate a sentence to recognise time wrongly served in custody by the offender in relation to unrelated offending. However, there is in this State no such statute and, given my conclusions above with respect to the applicant’s argument on this ground, it is unnecessary to express any concluded view on this issue.

57. [89]

    Section 47 of the Sentencing Procedure Act (made applicable by s 16E of the Crimes Act (Cth)) relevantly provides:

58. [90]

    Section 16A of the Crimes Act (Cth) accommodates the application of some common law principles of sentencing: Johnson v The Queen [2004] HCA 15; 78 ALJR 616 at [15]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [25] (“Hili”); Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 at [18].

59. [91]

    By s 68(1) of the Judiciary Act 1903 (Cth) the criminal procedure of the States and Territories is made to apply, “so far as … applicable”, to federal offending. By s 68(2) the courts of the States and Territories exercising jurisdiction in respect of the State or Territory criminal law are invested with “the like jurisdiction” with respect to the criminal law of the Commonwealth.

60. [92]

    It has long been recognised that, because the relevant (local) law may vary from jurisdiction to jurisdiction, differences may arise in the manner in which federal offences are dealt with. In Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19 (“Williams (No 2)”) at issue was whether, by application of s 68, s 5D of the Criminal Appeal Act 1912 (NSW) (giving a right to the Attorney-General of NSW to appeal against a sentence imposed on an offender) extended to the Attorney-General of the Commonwealth in relation to a sentence imposed on a federal offender. Rich J identified the object of s 68 as being (at 558):

61. [93]

    Dixon J agreed; at 560, his Honour identified the policy of s 68 as:

62. [94]

    Dixon J’s observations were quoted by Mason CJ, Dawson and McHugh JJ in Leeth v The Commonwealth (1992) 174 CLR 455 at 467; [1992] HCA 29. Their Honours added:

63. [95]

    The observations of Dixon J and Rich J in Williams (No 2) were again cited and endorsed by Gleeson CJ in The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12 at [6]-[7] and by McHugh and Gummow JJ at [63]. The issue in that case was whether a provision of the South Australian Criminal Law Consolidation Act 1935 (SA), which conferred jurisdiction on the Full Court of the South Australian Supreme Court to hear and determine a question of law reserved by the District Court (the procedure commonly known as a “case stated”), applied, by reason of s 68 of the Judiciary Act, in cases of trials for offences against federal laws.

64. [96]

    Gleeson CJ quoted the passage from Dixon J’s reasons in Williams (No 2) extracted above, and said (at [7]):

65. [97]

    On the strength of those decisions I would conclude that there is no basis on which this Court should depart from its previous position with respect to taking into account periods of custody, unrelated to the offence for which sentence is to be passed, and unrelated to any other offence.

66. [98]

    However, the High Court has since moved in a different direction. In Hili, the principal issue concerned the approach to be taken in sentencing federal offenders with respect to the proportion of the sentence to be served in custody relative to that which may be served in the community pursuant to a recognisance release order. Unlike the NSW provisions in the Sentencing Procedure Act (see s 44), the effect of which is that, unless special circumstances are shown to exist, the non-parole period of the sentence should be not less than 75% of the total sentence, no proportion is prescribed in Pt 1B of the Crimes Act (Cth). This Court considered that a “norm” of between 60 and 66% could be discerned from past sentencing decisions. In that context the question of consistency in sentencing federal offenders arose. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said:

67. [99]

    In The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 (“Pham”) the offender (Mr Pham) pleaded guilty to one charge of importing into Australia a marketable quantity of a border-controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth). He was sentenced to imprisonment for 8 years and 6 months with a non-parole period of 6 years. An appeal against the severity of the sentence was allowed in the Victorian Court of Appeal and the sentence reduced to imprisonment for 6 years with a non-parole period of 4 years: Pham v The Queen [2014] VSCA 204; (2014) 244 A Crim R 252. Each member of the Court of Appeal gave individual reasons. Maxwell P provided, as part of his reasons, a statistical analysis of sentencing for offences of that kind in Victoria, compared with sentencing in other Australian intermediate appellate courts. His Honour considered (at [10]) that Mr Pham had pleaded guilty:

68. [100]

    The other two members of the court adopted a similar approach (Osborne JA, at [63]; Kyrou JA at [82]). That gave rise to the ground of appeal relevant to these reasons. On appeal to the High Court, the Director of Public Prosecutions (Cth) contended that Maxwell P erred in holding that Mr Pham was entitled to expect that he would be sentenced in accordance with current sentencing practices in Victoria as opposed to the relevant range of sentences established across all States and Territories.

69. [101]

    The High Court accepted that contention. The plurality (French CJ, Keane and Nettle JJ) said:

70. [102]

    Although I have rejected the applicant’s contention that the sentencing practices of the Victorian Court of Appeal constitute or establish the existence of a “common law principle” it is another thing to say that there is not a “sentencing practice”. The decisions in Kotzmann and Karpinski show that the Victorian Court is prepared to consider making an allowance in a subsequent sentence to take account of a period of unrelated custody. In NSW that simply cannot happen.

71. [103]

    If the applicant had established that a “practice” existed in Victoria, or other States and Territories, of the kind for which he contends, this Court would be confronted with the choice of conflicting practices to follow and apply. I do not consider, on balance, that a relevant practice has been established.

72. [104]

    I would reject Ground 1 of the proposed appeal.

Ground 3: manifest excess

1. [105]

   It is convenient next to address Ground 3, by which the applicant asserts that the sentence imposed was manifestly excessive.

2. [106]

   The applicant advanced little in the way of submission to support that assertion. He placed considerable reliance on the findings of this Court in Ibrahim. Those findings do not, in my opinion, bear upon whether the sentence imposed in this case is manifestly excessive. Each case is to be determined on the evidence in that case before the sentencing judge. The question is whether, in all of the circumstances of the applicant’s case (including his personal circumstances), the sentence imposed was “unreasonable or plainly unjust”: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25].

3. [107]

   As there is no issue concerning the reduction in the applicant’s sentence of 30%, the question is to be determined, in the first instance, by reference to the starting point of 26 years. In determining whether the sentence imposed was “unreasonable or plainly unjust” it is appropriate to have regard to sentences imposed in comparable cases: Hili at [54], although with an eye to the limitations in the use that can be made of that information: see also Pham [29], [47], [49].

4. [108]

   The applicant did not provide this Court with any comparable sentencing information, although the materials provided to the Court did include a table prepared by the Crown for the purposes of the sentencing judge.

5. [109]

   The first thing to observe is that, for an offence of conspiracy to import a commercial quantity of MDMA, a maximum sentence of life imprisonment is prescribed. A commercial quantity of MDMA is constituted by half a kilogram. The quantity of pure MDMA the subject of the applicant’s offence is 594.43 kilograms – almost 1,200 times the quantity necessary to expose him to a sentence of life imprisonment.

6. [110]

   The quantity of the drug is not the sole determining sentencing factor: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [67]-[78], but it remains an important consideration. It is of particular significance where the quantities are of the kind involved in the present case.

7. [111]

   Other important considerations are the role played by the offender, and his or her personal circumstances, including criminal history. One relevant consideration in this case is that the applicant has previously served a term of imprisonment for drug offences. No attempt was made on behalf of the applicant to show that the sentencing judge erroneously dealt with any of the relevant considerations.

8. [112]

   In concluding that the starting point of 28 years in the indicative sentence for Ibrahim’s involvement in the conspiracy was manifestly excessive, Davies J said at [110]:

9. [113]

   Jomaa pleaded guilty to attempting to import 200 kilograms of MDMA (154 kilograms pure weight). By s 11.1(1) of the Criminal Code (Cth), an attempt to commit an offence carries the same maximum penalty as the completed offence (as does conspiracy: s 11.5). Jomaa was, therefore, like the applicant, exposed to a sentence of imprisonment for life. Jomaa bears some resemblance to the present case. It seems that the drugs proposed to be imported were to be sourced from Rotterdam, in the Netherlands. An undercover police operative was involved from an early stage. The drug was intercepted by police and an inert substance substituted. Jomaa was found to have played a “substantial” role in the enterprise.

10. [114]

    At first instance Jomaa was sentenced, after reduction of 25% due to his plea of guilty, to imprisonment for 21 years with a non-parole period of 14 years, the starting point of which can thus be seen to have been 28 years. Jomaa sought leave to appeal on three grounds, two of which involved the principles stated in R v Taouk (1992) 65 A Crim R 387 at 404 by which, in appropriate circumstances, an offender’s culpability may be diminished if “there is a real possibility that but for the assistance, encouragement or incitement offered by police officers” the offender may not have engaged in the offence.

11. [115]

    By Ground 1 Jomaa complained that the sentencing judge had failed “to meaningfully apply the Taouk principles in an assessment of the objective seriousness of the offence”. By Ground 2 he complained that the sentencing judge erred in failing to identify how the role of the undercover operative was relevant to the application of sentencing principles. Ground 3 was an assertion that the sentence was manifestly excessive.

12. [116]

    No consensus is to be found in the three judgments. Cavanagh J would have upheld Ground 1. While his Honour said (at [104]) that he did not consider that this was a case in which the offence was induced as a result of persistent threats or inducement or offers of reward, the involvement of the undercover operative was nevertheless a relevant sentencing consideration. He said that there was no evidence that the applicant was already involved in trafficking the drug at the time the undercover operative became involved, and that the undercover operative dealt directly with Jomaa, plainly offering him encouragement. His Honour concluded that it was not apparent how the sentencing judge took account of the involvement of the undercover operative, and that the finding of objective seriousness (“of a very high order”) indicated that little or no weight had been given to that circumstance. His Honour accordingly proposed to grant leave and uphold the appeal.

13. [117]

    Cavanagh J rejected Ground 2. Having regard to his conclusion with respect to Ground 1, his Honour did not address Ground 3. He considered that an appropriate starting point for the sentence was imprisonment for 24 years, which, by reason of the 25% reduction, resulted in a total sentence of imprisonment for 18 years with a non-parole period of 12 years.

14. [118]

    Hamill J took a different view. He did not consider that either error asserted in Grounds 1 and 2 was established. His Honour considered that Jomaa’s culpability was “diminished to some limited degree” by the role of the police operative and that the sentence imposed was manifestly excessive. His Honour gave no reason other than the involvement of the undercover operative in purporting to facilitate the enterprise for finding that the sentence was manifestly excessive.

15. [119]

    Beech-Jones CJ at CL disagreed with both Cavanagh J and Hamill J. He considered that there was nothing shown in the conduct of the undercover operative that was capable of diminishing Jomaa’s culpability. His Honour would therefore have rejected Grounds 1 and 2. It was then necessary to address Ground 3 which his Honour did briefly, concluding that the sentence, while “stern”, was not manifestly excessive.

16. [120]

    Jomaa, accordingly, provides no relevant guidance as to the adequacy or inadequacy of a starting point of 28 years in relation to a large consignment of MDMA. Notwithstanding their different approaches to the grounds as pleaded, the conclusions of both Cavanagh and Hamill JJ depended heavily on the involvement of the undercover police operative. No equivalent finding was made in respect of the applicant’s involvement and no ground of appeal proposes that such a finding should have been made. The rationale for the reduction of Jomaa’s sentence from a starting point of 28 years has not been shown to be here applicable.

17. [121]

    It is worth observing that the starting point of Jomaa’s sentence was 2 years longer than that of the applicant, in relation to an offence involving just under one-third of the quantity of the drug involved in the applicant’s case.

18. [122]

    As I have mentioned, the applicant did not identify any case in which a sentence comparable to that imposed on him has been held to be manifestly excessive; nor, to repeat, other than that raised by Ground 1 (which I have rejected), has he sought to identify any fault in the reasoning of the sentencing judge.

19. [123]

    The broadly comparable cases provided by the Crown to the sentencing judge do not indicate to me that a starting point of 26 years was manifestly excessive.

20. [124]

    I would reject Ground 3 of the proposed appeal.

Ground 2: parity

1. [125]

   Under Ground 2 the applicant’s complaint is as to the sentence imposed upon him relative to that indicated by this Court as the appropriate sentence that would have been imposed on Ibrahim with respect to the conspiracy in which the applicant was involved following the success of Ibrahim’s appeal. To restate, the sentence imposed on the applicant, after a reduction of 30%, was imprisonment for 18 years and 2 months with a non-parole period of 12 years. The starting point of the sentence, before reduction, was 26 years with a non-parole period of 17 years. The sentence her Honour indicated that she would have imposed on Ibrahim if sentencing separately for that conspiracy offence was, after reduction of 25%, imprisonment for 21 years. The starting point was therefore imprisonment for 28 years. The sentence indicated by this Court for that offence, again after 25% reduction, was imprisonment for 18 years. The starting point was 24 years. One outcome of Ibrahim’s successful appeal is the disruption of the relativities carefully considered and constructed by the sentencing judge, which are not challenged by either party.

2. [126]

   The result, after resentencing, is that, notwithstanding that the sentencing judge found that the applicant was less culpable than Ibrahim, the head sentence to which the applicant is subject is 2 months longer than the sentence indicated by this Court as appropriate for Ibrahim.

3. [127]

   In sentencing Ibrahim the sentencing judge expressly considered questions of parity with all other offenders who had been sentenced. In relation to the applicant, her Honour observed (at [270]) that both offenders were “personally invested” in the importation and stood to make significant profits from it, both performed crucial physical acts in furtherance of the conspiracy, and both were entrusted to make decisions in respect of it. Her Honour considered that Ibrahim undertook less “hands-on” tasks than the applicant, but played a slightly more serious role because his involvement operated to make the various pieces fit together and assured that the drug enterprises ran smoothly by reducing the risk of the conspirators being defrauded.

4. [128]

   Her Honour also considered that Ibrahim occupied a slightly higher position in the organisation as was evidenced by his having suggested to Zane an alternative source of drugs when tensions arose in the operation.

5. [129]

   These conclusions, which are not challenged by either party, are reflected in the starting points of the sentences imposed on the applicant and indicated in respect of Ibrahim’s involvement in this conspiracy. As can be seen from the starting points (28 years and 26 years) the margin is narrow but not insignificant.

6. [130]

   The “parity principle’ is firmly established in criminal law. Consideration of the principles may begin with the (dissenting as to the application of principles but frequently cited) reasons for judgment of Mason J in Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 610-611 (“Lowe”). His Honour said:

7. [131]

   Gibbs CJ (part of the majority as to the outcome) did not disagree with the principles so expressed. After referring to the relevant provision of the Criminal Code (Qld), equivalent to s 6 of the Criminal Appeal Act 1912 (NSW) (see below), his Honour said:

8. [132]

   The “justifiable sense of grievance” test has become entrenched in the jurisprudence: see Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26 (“Postiglione”); Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [31] (“Green”). Whether the outcome of the sentencing process gives rise to a justifiable sense of grievance is to be assessed by objective criteria: Green at [31]. To warrant intervention by the court it is not necessary to show that the sentence imposed was manifestly excessive. Indeed, it was held by Mason J in Lowe that an appellate court is entitled to intervene even to the point where the substituted sentence might be regarded as inadequate: Lowe at 613-614. (That proposition is not entirely uncontroversial (see Green at [33]), but it does not arise in the present case.)

9. [133]

   The jurisdiction of this Court to intervene in the exercise of a sentencing discretion is found in s 6(3) of the Criminal Appeal Act which provides:

10. [134]

    In Simpson v R (2001) 53 NSWLR 704; [2001] NSWCCA 534 (at [79]) Spigelman CJ appears to have considered that the power conferred by s 6(3) is not enlivened unless the court has determined that some error has been identified in the exercise of the sentencing discretion. In Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284, his Honour modified that view, observing (at [19]) that the statutory formulation of the pre-condition to the exercise of the s 6(3) power is formation of the opinion that “some other sentence … is warranted in law and should have been passed”.

11. [135]

    In Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 (“Lehn”) at [67] Bathurst CJ stated that the power conferred by s 6(3) is predicated on error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505 (“House”). Those errors are:

12. [136]

    No error falling into any of the House categories has been identified. My conclusion in respect to Ground 1 disposes of the suggestion that the sentencing judge acted on a wrong principle or failed to take into account a material consideration. My conclusion with respect to Ground 3 disposes of any suggestion that the result (the sentence) was unreasonable or plainly unjust. There was no suggestion that the sentencing judge took into account any irrelevant consideration, nor of any mistake of fact.

13. [137]

    It may be that the proposition in Lehn is too broadly stated when the ground on which it is sought to disturb a sentence is disparity. (The focus in Lehn was what was required of the appellate court if error was established, and if there were circumstances in which the court was not required to re-exercise the sentencing discretion.) In Jones v The Queen (1993) 67 ALJR 376 at 376, a three-judge bench of the High Court (Brennan, Deane and McHugh JJ) affirmed that the parity principle is relevant to the first sentence passed on one of a number of co-offenders. The Court quoted and apparently disapproved the following remarks of Sully J, expressed in the Court of Criminal Appeal below:

14. [138]

    Given that no issue has been taken with the relativity assessed by the sentencing judge between the culpability of Ibrahim for this offence and that of the applicant, and on the (necessary) assumption that this Court was correct in finding that the sentence indicated for Ibrahim for this offence was manifestly excessive, it seems reasonable to conclude that the applicant is left with a justifiable sense of grievance. Simple logic would appear to dictate that the remedy is the adjustment of the applicant’s sentence to restore the relativity intended by the sentencing judge. The Crown expressly acknowledged that, in determining a parity ground of appeal, it is not inappropriate to compare an actual sentence with an indicated sentence: R v Clarke [2013] NSWCCA 260 at [68]; Smith (a pseudonym) v R [2022] NSWCCA 123 at [47]-[48] and the cases there cited.

15. [139]

    The Crown, however, made three responses to the simple proposition that this Court should intervene to restore the relativity. The first was that the sentencing judge made an express finding that there was no evidence that Ibrahim was contemplating engaging in drug related activity before the opportunity was presented to him by Zane, a matter which her Honour appeared to take into account in the assessment of the objective seriousness of Ibrahim’s offence on the principles stated by Cavanagh J in Jomaa at [105]-[108], following Taouk, and that her Honour made no corresponding finding with respect to the applicant. The short answer to that submission is that the relevant circumstances existed at the time of sentencing of both offenders and constituted part of the factual matrix on which her Honour determined the relative culpabilities of each of offender. It does not and cannot bear upon the present ground of appeal.

16. [140]

    The second response made by the Crown was that the difference in starting points (and therefore the sentence and indicated sentence) has not been, to a significant extent, disturbed by the resentencing of Ibrahim. It is sufficient to say that I reject that proposition. The starting point of Ibrahim’s sentence, after resentencing in this Court, has significantly disturbed the relativities. The discrepancy so created is plainly not in accordance with the sentencing judge’s assessment of the relative culpability of the two offenders. It is also not without significance in this context that Ibrahim was sentenced for a multiplicity of offences, including another conspiracy to import drugs.

17. [141]

    The final response advanced by the Crown to this ground of appeal was, citing DS v R [2014] NSWCCA 267 at [39], that the resultant disparity is not “gross”, “marked”, “glaring” or “manifest”. Again, I disagree. The disparity can clearly be seen in the starting points of the indicative sentence and the sentence outlined above.

18. [142]

    I am satisfied that, by reason of the reduction in the sentence imposed on Ibrahim, and the disparity so created, the applicant experiences a justifiable sense of grievance. I would therefore uphold Ground 2 of the proposed appeal.

19. [143]

    The next question is what consequences flow from that conclusion.

20. [144]

    Identification of error in the sentencing process ordinarily requires this Court to re-exercise the sentencing discretion, taking into account, if relevant, any additional evidence tendered: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”).

21. [145]

    In Kentwell, having approved the observations of Spigelman CJ in Baxter, the plurality (French CJ, Hayne, Bell and Keene JJ) said:

22. [146]

    In Lehn this Court considered the ambit of the requirement that the court re-exercise the sentencing discretion. In that case the error lay in the allowance made in recognition of Lehn’s plea of guilty, which this Court held was both inadequate and arrived at in the absence of procedural fairness. As that was an error affecting the exercise of the sentencing discretion, the decision in Kentwell required the court to form its own view of the appropriate sentence.

23. [147]

    That is not so in the present case. There was, here, no error that affected the exercise of the sentencing discretion such that it could be said, in the terms of Kentwell, that the sentencing discretion had miscarried. In my opinion, in accordance with what Dawson and Gaudron JJ said in Postiglione at 301, the sentence should be reduced to restore the relativity between that imposed on the applicant, and the post-appeal sentence indicated as appropriate for the offence in Ibrahim.

24. [148]

    The margins in the sentences nominated by the sentencing judge and that indicated in Ibrahim are, as I have said above, narrow but not insignificant. The starting point of the sentence imposed on the applicant was almost 93% of the post-appeal indicated sentence nominated in respect of Ibrahim for the conspiracy offence. In my opinion this Court should act to restore that relativity. That would yield a starting point of imprisonment for 22 years and 3 months (in round figures), which, after reduction of 30%, results in a sentence of imprisonment for 15 years and 7 months. I would maintain the proportions between the head sentence and the non-parole period (approximately 66%). I would impose a non-parole period of 10 years and 4 months.

25. [149]

    The orders I propose are:

26. [150]

    GARLING J: I agree with the orders and sentence proposed by Simpson AJA and with her Honour’s reasons.

27. [151]

    IERACE J: I also agree with the orders and sentence proposed by Simpson AJA and with her Honour’s reasons.