Ibrahim v R

1. [1]

   MACFARLAN JA: I agree with Bellew J.

2. [2]

   ROTHMAN J: I agree with the orders proposed by Bellew J and generally with his reasons.

3. [3]

   The relative weight to be given to general deterrence and subjective circumstances will depend on the offence and the offender. This is part of the intuitive synthesis required in considering all of the purposes of sentencing.

4. [4]

   BELLEW J: On 12 June 2013 Hanan Mohamad Ibrahim (“the applicant”) was jointly arraigned with her brother, Nazih Mohamad Ibrahim, and pleaded not guilty to the following offences:

5. [5]

   On the seventh day of the joint trial, the applicant pleaded guilty to count 1. The Crown accepted that plea in full satisfaction of the indictment. In addition, and pursuant to s. 16BA of the Crimes Act 1914 (Cth) (“the Act”), the applicant agreed to have taken into account on sentence an offence of possessing a controlled drug, namely Opium.

6. [6]

   The offending in count 1 was contrary to ss. 307.5 and 11.1 of the Criminal Code 1995 (Cth.). It carries a maximum penalty of life imprisonment.

7. [7]

   On 17 October 2014, following sentence proceedings which extended over a period of more than one year, the applicant was sentenced to imprisonment for 12 years and 6 months to date from 17 March 2011, and to expire on 16 September 2023. A non-parole period of 7 years and 6 months was set, to date from 17 March 2011 and to expire on 16 September 2018.

8. [8]

   By notice dated 30 June 2015 the applicant seeks leave to appeal against the sentence imposed on the grounds that:

THE FACTS

1. [9]

   The following statement of facts was tendered by the Crown on sentence:

2. [10]

   Annexure “A” to the statement of facts (referred to at para. 71) was a transcript of conversations recorded by way of a listening device. I have not set out the entirety of the contents of that transcript, but have set out relevant excerpts when considering ground 2.

The evidence

1. [11]

   In the proceedings before the sentencing judge, counsel then appearing for the applicant tendered (with the consent of the Crown) a report of Michelle Player, Clinical Psychologist, dated 12 September 2013.

2. [12]

   At [19] of her report, Ms Player noted that the applicant’s history that she had been prescribed medications “to manage her diabetes, hypertension and cholesterol”. At [22] Ms Player stated:

3. [13]

   The medical records of the applicant’s general practitioner to which Ms Player referred were not in evidence before the sentencing judge.

4. [14]

   At [26] of her report Ms Player noted the applicant’s reported symptoms related to unresolved trauma stress. The applicant described having nightmares, although she did not provide specific details about them. Ms Player thought that the history provided by the applicant in this regard was indicative of her experiencing symptoms of stress relating to prior traumatic events, the details of which the applicant had been reluctant to disclose.

5. [15]

   In reviewing the documentation provided to her, Ms Player noted (at [27] of her report) that the applicant had come under the care of a Ms Weinstein, Psychologist, who had provided her with supportive counselling for panic attacks. She also noted that an initial referral of the applicant to Dr Elliott, Psychiatrist in 2011, but that no medication or follow-up was deemed necessary. It was noted by Ms Player (at [27]) that Ms Weinstein had reported that the applicant appeared to be suffering from anxiety, trauma and unresolved grief issues that were affecting her sleep and well-being. Ms Player further noted (at [28]) that the applicant had been referred to a Psychiatrist in May 2013 whilst in custody, and that the referral detailed the applicant’s lack of ability to cope with custody, her unresolved legal matters and her unresolved history of prior trauma and anxiety. There were references to possible depression and post traumatic stress disorder.

6. [16]

   Ms Player undertook psychometric testing of the applicant. She said (at [38]) that the results revealed that the applicant had extremely low cognitive functioning. She concluded that the applicant presented as an intellectually disabled woman who satisfied the criteria for mild mental retardation.

7. [17]

   Ms Player (at [39]) described the applicant’s account of her involvement in the offending as “unsophisticated” and said that it “reflected a level of naïvety commensurate with her presentation in interview, as well as with her low intellectual capacity”. Ms. Player’s categorisation of the applicant’s offending as unsophisticated and naïve was obviously based, in large part, upon the history provided by the applicant. In particular, Ms Player did not have available to her the evidence of statements made by the applicant in the course of her offending, which were recorded by a listening device and which I have discussed further below in my consideration of ground 2.

8. [18]

   Ms Player went on to state (at [42]):

The sentence proceedings

1. [19]

   Although the applicant entered a plea of guilty on 24 June 2013, it was not until 17 October 2014 that sentence was actually imposed. The matter came before the sentencing judge on six separate occasions in the intervening period. Ms Player’s report was tendered on the second of those occasions, namely 15 November 2013.

2. [20]

   The applicant gave evidence in the sentence proceedings and was cross-examined at length by the Crown. In terms of her mental state, the applicant told the sentencing judge (commencing at T14 L29) that she was taking medication for “depression”. The applicant gave no further evidence in respect of that issue. She did not assert that she had difficulty obtaining appropriate medical treatment, nor did she assert that her period in custody was being rendered more difficult as a consequence of any mental health issue.

3. [21]

   Counsel then appearing for the applicant provided written submissions to the sentencing judge. Those submissions contained only two references to the report of Ms Player, in the following terms:

4. [22]

   The reference to s. 16A(2)(m) was a reference to s. 16A(2)(m) of the Act which required the sentencing judge to take into account (inter alia) the mental condition of the applicant.

5. [23]

   No oral submissions were put to the sentencing judge based upon Ms Player’s report. It was not put to the sentencing judge that there was any causal connection between the applicant’s mental state and her offending, such that her moral culpability for the offending ought be lessened. Further, it was not put that the applicant’s mental state rendered her an inappropriate vehicle for general deterrence. Finally, it was not put that the applicant’s mental state rendered her conditions of custody more onerous.

The findings of the sentencing judge

1. [24]

   The sentencing judge (commencing at ROS 11) assessed the applicant’s subjective circumstances. In doing so, her Honour referred to the fact that the applicant had given evidence. She also referred to the tender of Ms Player’s report. Drawing on that material, her Honour outlined the applicant’s background before saying (at ROS 13):

2. [25]

   Her Honour made no further reference to the applicant’s physical or mental health.

Submissions of the applicant

1. [26]

   Counsel for the applicant drew attention to s 16A(2)(m) of the Act and submitted that there was evidence of the applicant’s mental condition contained in the report of Ms Player. Counsel acknowledged that there had been (as he described it) “minimal reference” to the applicant’s mental state in evidence, argument and submissions before the sentencing judge. However, he submitted that notwithstanding the “lack of assistance” provided to the sentencing judge by the applicant’s then counsel, it remained the case that Ms Player’s report had been tendered in evidence. It was submitted that the failure on the part of the sentencing judge to give that report proper consideration was an error, as a consequence of which the applicant had been denied consideration of principles which applied to the sentencing of mentally ill offenders.

Submissions of the Crown

1. [27]

   The Crown acknowledged the existence of the principles regarding the sentencing of mentally ill offenders upon which the applicant now sought to rely. However, the Crown submitted that in the present case the report of Ms Player did not establish any causal connection between the applicant’s mental state and her offending. It was submitted that in these circumstances, there was no basis upon which the applicant’s moral culpability for the offending should have been lessened.

2. [28]

   It was further submitted that the report of Ms Player did not support any moderation of the need for general deterrence, nor did it support a conclusion that the state of the applicant’s mental health was such that a custodial sentence would weigh more heavily upon her.

3. [29]

   In all of these circumstances, the Crown submitted that ground 1 was not made out.

Consideration

1. [30]

   The principles applicable to the sentencing of mentally ill offenders were outlined by McClellan CJ at CL in DPP (Cth) v De La Rosa [2010] NSWCCA 194; (2010) 79 NSWLR 1 commencing at [177]. Those principles include the following:

2. [31]

   The fact that no submission was made to the sentencing judge that all or any of these principles were relevant to sentence presents the applicant with a difficulty before this court.

3. [32]

   In Zreika v R [2012] NSWCCA 44 Johnson J (with whom McClellan CJ at CL and Rothman J agreed) said (commencing at [79], citations omitted):

4. [33]

   Previously, in Romero v R [2011] VSCA 45; (2011) 32 VR 486 Redlich JA had said (at [11]):

5. [34]

   More recently in Dicianni v R; Pintabona v R [2015] NSWCCA 201 Hoeben CJ at CL (with whom Price and Davies JJ agreed) observed (at [282]):

6. [35]

   It is evident from the transcript of the sentence proceedings, and from the submissions made on behalf of the applicant to the sentencing judge, that the report of Ms Player assumed little or no significance in the applicant’s case. This is reflected by the fact that the submissions which were made in relation to it were limited to those in [20] above.

7. [36]

   Ms Player did not suggest that the applicant’s mental state was causally connected to her offending. Accordingly, the applicant’s mental state did not provide any basis for a lessening of her moral culpability. Even accepting that evidence of an offender’s mental state can remain relevant in the absence of such a causal connection, and allowing for the fact that Ms Player diagnosed the applicant as suffering from mild mental retardation, the evidence did not support a conclusion that the applicant was an inappropriate vehicle for general deterrence, particularly in light of the conduct which constituted the offending, and to which I have referred in more detail below when considering ground 2.

8. [37]

   Further, there was no evidence that the applicant’s mental state rendered her period of custody more onerous. The general tenor of the evidence was that the applicant was being appropriately treated with medication.

9. [38]

   In all of these circumstances, it is unsurprising that no submission was put to the sentencing judge that the principles governing the sentencing of mentally ill offenders were applicable. The question of the applicant’s mental health assumed no real significance at the time. There was no error on the part of the sentencing judge in failing to consider submissions which were not put to her. The evidence did not support the application of the principles set out in De La Rosa in any event. Accordingly, no injustice of the kind referred to by Hoeben CJ at CL in Dicianni has been established.

10. [39]

    It follows that this ground is not made out.

Submissions of the applicant

1. [40]

   In advancing this ground, counsel for the applicant relied upon a number of factors.

2. [41]

   Firstly, it was submitted that although the sentencing judge was not satisfied that there had not been other breaches of the law on the part of the applicant, this was a case in which the applicant had no record of prior offending. It was submitted that in these circumstances she was to be regarded as a person of good character.

3. [42]

   Secondly, counsel pointed to the applicant’s general subjective circumstances, particularly her personal background. He described aspects of that background as “monstrously sad” and pointed, in particular, to the fact that of the four children the applicant had delivered, only one (who is now a teenager) remained alive. Whilst it was not suggested that the effect of the applicant’s incarceration upon her family was exceptional, it was submitted that it was nevertheless a relevant factor on sentence, and that insufficient weight had been given to it (and to the other factors relied upon) by the sentencing judge.

4. [43]

   Thirdly, it was submitted that the applicant’s criminality was low when compared to that of her co-offenders, and that her actions were generally unsophisticated.

5. [44]

   Fourthly, it was submitted that the applicant’s mental state had the effect of reducing her moral culpability for the offending. It was further submitted that even if this were not the case, Ms Player’s opinion that the applicant suffered from mild mental retardation was necessarily a relevant subjective consideration.

Submissions of the Crown

1. [45]

   The Crown generally acknowledged the circumstances of the applicant’s background. However, the Crown emphasised what was described as the applicant’s “conscious, intelligent and knowing participation” in the importation. In this regard, the Crown took the court to a number of statements made by the applicant which were recorded by listening device and which, in the Crown’s submission, were demonstrative of the role that she had played.

2. [46]

   The Crown took issue with the opinion of Ms Player that the applicant’s offending was naïve. It was submitted that such opinion was at odds not only with the evidence of the recorded statements of the applicant, but with aspects of her evidence before the sentencing judge. It was submitted that the evidence established that in acting as she did, the applicant was fully conscious of her conduct.

3. [47]

   The Crown also pointed to the weight of the drug which was imported. Whilst acknowledging that weight was not a determinative factor, the Crown submitted that it was necessarily relevant in determining sentence. The Crown also submitted that general deterrence was an important consideration.

4. [48]

   Finally the Crown submitted that the applicant performed a significant role in a sophisticated operation of importing prohibited drugs and that taking into account all of the relevant circumstances, the sentence which had been imposed was not one that could be described as unreasonable or plainly unjust.

Consideration

1. [49]

   The applicant’s subjective circumstances were set out in the report of Ms Player (commencing at [7]). There is no doubt that aspects of the applicant’s background attract considerable sympathy. However, it is clear from the sentencing remarks (commencing at ROS 11) that the sentencing judge took those matters into account. It is also important to bear in mind that the weight to be given to an offender’s subjective circumstances must not be such as to lead to the imposition of a sentence which is disproportionate to the objective seriousness of the offending. Subjective considerations, however persuasive, are necessarily subsidiary to the duty of the courts to impose a sentence which will operate as a powerful factor in preventing the commission of similar offences by others: R v Todd (NSWCCA unreported, 7 February 1994) per Hunt CJ at CL (McInerney and Sully JJ agreeing). General deterrence is a particularly important consideration in sentencing for offending of this nature: Director of Public Prosecutions (Cth) v El Kaharni (1990) 21 NSWLR 370 at 377 per the Court; R v Riddell [2009] NSWCCA 96; (2009) 194 A Crim R 524 at [55] – [58] per Beazley JA (as her Honour then was) (Blanch and Howie JJ agreeing).

2. [50]

   The weight of the prohibited drug which was imported was almost nine times the applicable commercial quantity. On any view, that was significant. Weight is not determinative of sentence, nor is it determinative of a range into which a sentence should fall: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at [68]-[69] per Gaudron, Gummow and Hayne JJ; De La Rosa (supra) at [68] per Allsop P (as his Honour then was). However, it is clearly a relevant factor: R v Nguyen; R v Pham [2010] NSWCCA 238; (2010) 205 A Crim R 106 at [72] per Johnson J (Macfarlan JA and R A Hulme J agreeing).

3. [51]

   Moreover, the relevance of the weight of the prohibited drug becomes greater where it is a matter within the knowledge of the offender: Nguyen (supra) at [72]; Garcia v R [2013] NSWCCA 241 at [74] per Bellew J (Emmett JA and R A Hulme J agreeing). Whilst there is no evidence in the present case that the applicant had precise knowledge of the weight of the drug which was imported, the nature and extent of her involvement in the venture was such that she must, at the very least, have known that it was substantial.

4. [52]

   Merely because the applicant’s role may have been less than that played by one or other of her co-offenders does not mean that it was a minor one. In assessing that role, the applicant’s actions, and the statements she made in carrying them out, are significant.

5. [53]

   The evidence before the sentencing judge established that the applicant assisted in loading the 19 boxes into the rear of her vehicle which she then drove, in convoy with Safizadeh, to the address at which they were unpacked. The applicant and Safizadeh were clearly aware of the need to conduct themselves in a way which did not draw undue attention to their activities. So much is evident from the recorded conversation between them which is set out at para. 68 of the statement of facts.

6. [54]

   In the course of the boxes being opened, the following was recorded (“S” being a reference, in each case, to words said by Safizadeh):

7. [55]

   Subsequently, when the applicant had been told by Safizadeh that the “material had been changed”, the following was recorded:

8. [56]

   Upon discovering that the drugs had been substituted, the applicant said to Safizadeh:

9. [57]

   The applicant then queried whether Safizadeh had “packed it with his own hands” before the following was said:

10. [58]

    These extracts taken from the listening device material reflect the applicant’s role and, importantly, her knowledge of the matters surrounding the importation. Clearly, the applicant was shocked to learn of the substitution and enquired of Safizadeh whether he had packed the consignment “with his own hands”. As set out in the facts (at para. 8) Safizadeh’s fingerprints were found on some of the jars in the boxes. That was consistent with the Crown case that he had travelled to Iran to oversee the packing of the consignment. The inference to be drawn from the applicant’s enquiry of Safizadeh as to whether he had packed the boxes “with his own hands” is that she was aware of the fact that Safizadeh had travelled to Iran for the purposes of packing and overseeing the consignment.

11. [59]

    Other statements made by the applicant provide further support for the conclusion that she was aware of the nature of the importation from the outset. In this regard, her reference in the conversation (set out at [56] above) to “nineteen” is particularly telling, bearing in mind that the drugs were contained in nineteen specifically marked boxes.

12. [60]

    In all of these circumstances the objective seriousness of the applicant’s offending was high, and her role a substantial one. I am not able to accept that her offending was naïve, nor am I able to accept that it was unsophisticated. On the contrary, the applicant’s actions were deliberate, calculated and carried out in the knowledge that she was part of a significant importation of prohibited drugs.

13. [61]

    It is also important to bear in mind that the applicant agreed to have taken into account on sentence the additional offence of possession of a controlled drug. That was not a matter which was to be simply noted in passing: R v Bavadra [2000] NSWCCA 292; (2000) 115 A Crim R 152 at [30] per Wood CJ at CL, Beazley JA (as her Honour then was) and James J agreeing. The sentencing judge properly had regard to that matter. The sentence she imposed was reflective of the totality of the applicant’s criminality.

14. [62]

    Finally, reference was made to a schedule provided to the sentencing judge of sentences imposed in what were said to be cases of comparable offending. Whilst I have had regard to that schedule, it is necessary to emphasise that consistency in sentencing is not synonymous with numerical equivalence: The Queen v Pham [2015] HCA 39 at [28] per French CJ, Keane and Nettle JJ. What the applicant must establish, in order to succeed on this ground, is that the sentence was unreasonable or plainly unjust: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]). Having regard to the matters set out, the applicant has failed to do so. Accordingly, this ground is not made out.

ORDERS

1. [63]

   I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Appeal dismissed.