Ibrahim v R [2020] NSWCCA 241

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Ibrahim v R [2020] NSWCCA 241 Hearing dates: 18 September 2020 Date of orders: 18 September 2020 Decision date: 18 September 2020 Before: Payne JA at [1]; Beech-Jones J at [8]; Fagan J at [9]. Decision: Leave to appeal refused. Catchwords: CRIME – appeals – appeal against sentence – failure to take into account utilitarian value of guilty plea – no lesser sentence warranted – application for leave filed out of time Legislation Cited: Criminal Code (Cth), s 307.1 Cases Cited: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4 Category: Principal judgment Parties: Nazih Ibrahim (Applicant) Crown (Respondent) Representation: Counsel: N Broadbent (Applicant) Y Shariff (Respondent)

Solicitors: Legal Aid NSW (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2011/87255 Publication restriction: Nil. Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Crime Date of Decision: 17 October 2014 Before: Judge Hock File Number(s): 2011/87255

ex tempore Judgment 1. PAYNE JA: On 17 October 2014, the applicant was sentenced by her Honour Judge Hock on one count of importing a border controlled drug, namely a commercial quantity of opium, contrary to s 307.1 of the Criminal Code (Cth). The applicant was arrested and charged with the offence on 17 March 2011 after he had taken delivery of 176 kg of opium concealed in a freight consignment from Iran. He was sentenced to 16 years imprisonment with a non-parole period of 10 years commencing on the date of his arrest. The applicant will be eligible for release to parole on 16 March 2021. The maximum penalty for the offence is life imprisonment and/or 7,500 penalty units. 2. The applicant's trial commenced on 12 June 2013. On day 6 he changed his plea. The case against him was overwhelming. The learned sentencing judge understandably characterised the change of plea as an acceptance of the inevitable. The date upon which sentence was passed preceded this Court's decision in Xiao v R (2018) 96 NSWLR 1; [2018] NSWCCA 4. Accordingly, her Honour did not assess or take into account any utilitarian value of the plea. Her Honour said that the plea of guilty showed "an acceptance of responsibility and a willingness to facilitate the course of justice, albeit belatedly." 3. The sole ground of appeal for which leave is sought is that her Honour erred in failing to take into account any utilitarian value of plea. It must be acknowledged that, through no fault of the learned judge, error in that respect occurred. However the utilitarian value of entering a plea of guilty on the sixth day of the trial was, in the circumstances of this case, negligible. Consideration of the plea from that point of view could not have added anything to the 10% discount that was allowed by her Honour on the basis she articulated. 4. The trial was estimated to occupy five weeks. Even allowing for the fact that there were two accused, that appears to have been an unduly long estimate having regard to the narrow compass of relevant events and the fact that the Crown was able to adduce direct evidence that the applicant was unpacking opium from the consignment at his home at the time of arrest. The Crown must have been well into its case by the sixth day. By that time the expense and work of briefing Crown counsel, marshalling prosecution witnesses, arranging counsel's pre-trial conferences with those witnesses, assembling a jury panel and otherwise embarking upon the trial had already been incurred. The opportunity for utilitarian cooperation had passed, for all practical purposes. 5. The applicant does not suggest that he would contend for a lesser sentence upon any basis other than that the increase in the discount might flow from consideration of the utilitarian value of the plea. On the assumption that leave to appeal were granted, having considered the objective facts of the offending and the subjective circumstances of the applicant, which are fully set out in the sentencing judge's remarks, and the evidence led by the offender on the basis that the Court proceeded to resentence, it is clear that no lesser sentence would be warranted in law: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [44]. 6. In making this finding I have taken into account four matters of particular significance relied upon by the applicant: 1. the applicant's custodial record; 2. the applicant's remorse; 3. the applicant's current health; and 4. the effects of the COVID-19 pandemic. 1. An appeal on the ground for which leave is sought has no arguable prospect of success. A considerable enlargement of time would be required for leave to be granted, including the period of two and a half years since the decision in Xiao v R was handed down in February 2018. There is no sufficient prospect of success in the appeal to warrant leave being granted for the filing out of time. I would refuse leave to appeal. 2. BEECH-JONES J: I agree with Payne JA and the orders that his Honour proposes. 3. FAGAN J: I also agree.