Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Dib v Rex [2023] NSWCCA 243 Hearing dates: 17 March 2023 Date of orders: 6 October 2023 Decision date: 06 October 2023 Before: Simpson AJA at [1] Garling J at [150] Ierace J at [151] Decision: 1. The time within which to appeal is extended to 6 September 2022. 2. Leave to appeal is granted. 3. The sentence imposed in the District Court on 27 April 2020 is set aside. 4. The applicant is sentenced to imprisonment comprised of a non-parole period of 10 years and 4 months, commencing on 8 August 2017 and expiring on 7 December 2027, with a balance of term of 5 years and 3 months, which will expire on 7 March 2033. Catchwords: SENTENCING – whether sentence should be backdated or reduced to take account of wrongful imprisonment on unrelated charges – consideration of interstate authorities – no basis for departing from existing position in New South Wales SENTENCING – federal offenders – sentence by State court for offence against Commonwealth law – consistency CRIME – appeals – appeal against sentence – conspiracy to import commercial quantity of border-controlled drug – MDMA – pure weight of 594.43 kilograms – parity – manifest excess – leave to appeal granted – applicant resentenced Legislation Cited: Crimes Act 1914 (Cth) ss 16A, 16BA, 16E Crimes (Sentencing Procedure) Act 1999 (NSW) ss 47, 53A, Criminal Appeal Act 1912 (NSW) ss 6, 6AA Criminal Code (Cth) ss 11.2, 11.5, 302.2, 307.1, 307.2, 400.3 Customs Act 1901 (Cth) s 233BABAD Judiciary Act 1903 (Cth) s 68 Sentencing Act 1991 (Vic) s 18 Cases Cited: Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Baxter v R [2007] NSWCCA 237; (2007) 173 A Crim R 284 Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Dib v R [2016] NSWCCA 15 Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 DS v R [2014] NSWCCA 267 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76 Green v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193 Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 Ibrahim v R [2022] NSWCCA 161 Johnson v The Queen [2004] HCA 15; 78 ALJR 616 Jomaa v R [2022] NSWCCA 112 Jones v The Queen (1993) 67 ALJR 376 Karpinski v R (2011) 32 VR 85; [2011] VSCA 94; 207 A Crim R 429 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; [1997] HCA 25 Leeth v The Commonwealth (1992) 174 CLR 455; [1992] HCA 29 Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255 Lipohar v The Queen (1999) 200 CLR 485; [1999] HCA 65 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Nicholas Hampton v The Queen [2015] HCASL 76 Pham v The Queen [2014] VSCA 204; (2014) 244 A Crim R 252 Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8 R v Arts and Briggs [1998] 2 VR 26; (1997) 93 A Crim R 56 R v Clarke [2013] NSWCCA 260 R v Chi Luong Chung (Court of Criminal Appeal (NSW), 9 March 1994, unrep) R v Dib [2012] NSWSC 1431 R v Evans (Court of Criminal Appeal (NSW), 21 May 1992, unrep) R v Governor of Brockhill Prison; Ex parte Evans [1997] QB 443 R v Heaney (Court of Appeal (Vic), 27 March 1996, unrep) R v Ibrahim, Moustafa; [2020] NSWDC 254 R v John David (Court of Criminal Appeal (NSW), 20 April 1995, unrep) R v Kotzmann [1999] 2 VR 123; [1999] VSCA 27; 105 A Crim R 243 R v Mostafa Dib [2020] NSWDC 145 R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep) R v Renzella [1997] 2 VR 88 R v Stares (2002) 4 VR 314; [2002] VSCA 70 R v Taouk (1992) 65 A Crim R 387 R v Webster; R v Jones (Court of Criminal Appeal (NSW), 3 August 1992, unrep) S v Boulton [2005] FCA 821; 155 A Crim R 152 Smith (a pseudonym) v R [2022] NSWCCA 123 Simpson v R (2001) 53 NSWLR 704; [2001] NSWCCA 534 SY v R [2020] NSWCCA 320 Tabet v Gett (2010) 240 CLR 537; [2010] HCA 12 The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12 The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39 Thurlow v The Queen [2021] VSCA 71 Totaan v R [2022] NSWCCA 75 Warwick v The Queen [2010] VSCA 166; 201 A Crim R 580 Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19 Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 Category: Principal judgment Parties: Mostafa Dib (Applicant) The Crown Representation: Counsel: P Strickland SC/T Bicanic (Applicant) S Callan SC/P McEniery (Respondent) Solicitors: Karnib Saddik Law Firm (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2017/282598 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2020] NSWDC 145 Date of Decision: 27 April 2020 Before: Yehia DCJ File Number(s): 2017/282598 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Mostafa Dib, pleaded guilty to a charge of conspiracy to import a commercial quantity of a border-controlled drug contrary to ss 11.5(1) and 307.1(1) of the Criminal Code (Cth). The charge related to a period of six months in 2017, during which the applicant conspired, with a number of others, to import just under 800 kilograms of MDMA, with a pure weight of 594.43 kilograms. The offence carries a maximum penalty of imprisonment for life. The applicant was sentenced in the District Court to imprisonment for 18 years and 2 months, with a non-parole period of 12 years. Prior to the commission of the offence, the applicant had served in excess of 3 years and 8 months in custody following (an entirely unrelated) conviction for an offence of murder, of which he was subsequently, on appeal, acquitted. The applicant contended before the District Court that his sentence for the conspiracy offence should be backdated or reduced by a quantified period to recognise the time that he had wrongly spent in custody in relation to that unrelated charge. The sentencing judge refused to do so, considering herself bound by previous authority. Nevertheless, her Honour took that time into account as part of the applicant's subjective circumstances. The Court of Criminal Appeal subsequently allowed an appeal brought by one of the applicant's co-offenders, Mr Moustafa Ibrahim, against his sentence: Ibrahim v R [2022] NSWCCA 161. The Court of Criminal Appeal considered that the indicative sentence for the conspiracy offence (in which Mr Dib was a co-offender) was outside the range of reasonable sentences in the circumstances of Mr Ibrahim's offending. Mr Ibrahim had been sentenced by the same sentencing judge as the applicant. The sentencing judge had considered that Mr Ibrahim was more culpable than the applicant and had imposed a longer indicative sentence on Mr Ibrahim in respect of the conspiracy offence than the sentence imposed on the applicant. After Mr Ibrahim was resentenced by this Court, his indicative sentence was 2 months shorter than the sentence imposed on the applicant. The applicant sought leave to appeal against his sentence on the following grounds: (1) the sentencing judge erred in not backdating the applicant's sentence to take into account the uncredited time that he had spent in custody; (2) the applicant suffers a justifiable sense of grievance in respect of the sentence imposed on Mr Ibrahim following his successful sentence appeal; and (3) the sentence imposed on the applicant is manifestly excessive. The Court (Simpson AJA, Garling and Ierace JJ agreeing) granting leave to appeal, allowing the appeal and resentencing the applicant to imprisonment for 15 years and 7 months, with a non-parole period of 10 years and 4 months. As to ground 1 (uncredited time in custody) It was well and consistently established that in New South Wales a sentencing court will not take account of uncredited time in custody in the manner for which the applicant contended: [34]-[52]. R v Niass (Court of Criminal Appeal (NSW), 16 November 1988, unrep); Hampton v R [2014] NSWCCA 131; (2014) 243 A Crim R 193; SY v R [2020] NSWCCA 320, considered. The applicant had not identified a contrary "common law principle" or sentencing practice accepted in other States or Territories which would lead this Court to reconsider or depart from that authority: [53]-[104]. Gett v Tabet (2009) 109 NSWLR 1; [2009] NSWCA 76, applied. Williams v The King (No 2) (1934) 50 CLR 551; [1934] HCA 19; Leeth v The Commonwealth (1992) 174 CLR 455 at 467; [1992] HCA 29; The Queen v Gee (2003) 212 CLR 230; [2003] HCA 12; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39, considered. As to ground 2 (parity) Given no issue was taken with the "relativity" assessed by the sentencing judge between the culpability of the applicant and the culpability of Mr Ibrahim, it is reasonable to conclude that the applicant is left with a justifiable sense of grievance following the disturbance of Mr Ibrahim's sentence: [138]. A ground of appeal that establishes unwarranted disparity between an applicant's sentence and that of a co-offender may be an indicator of error. A Court of Criminal Appeal need not identify a further error of the kind described in House v The King (1936) 55 CLR 499; [1936] HCA 40 in order to intervene to correct the error: [133]-[137]. Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255, distinguished. Jones v The Queen (1993) 67 ALJR 376; Postiglione v The Queen (1997) 189 CLR 295 at 301; [1997] HCA 26, followed. It was appropriate for this Court to restore the relativity assessed by the sentencing judge, without otherwise re-exercising the sentencing discretion: [143]-[147]. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, distinguished. As to ground 3 (manifest excess) The applicant's sentence was not manifestly excessive: [105]-[124]. JUDGMENT 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. 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. 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 The circumstances of the offence 1. The relevant facts were put before the sentencing judge in a lengthy and detailed agreed Statement of Facts, which disclosed the following. 2. 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. 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. 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. 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. 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. 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. The applicant's personal circumstances 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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: "[the applicant] said that when he was released from gaol in February 2016, he expected some form of compensation, but this was not forthcoming. He felt he owed his family financially because of their assistance during his trial, and this formed an underlying motivator towards his offending. In addition, he continued to have unresolved feelings about his prior incarceration – related I would regard his behaviour [sic], to some degree, as a form of 'acting out' his frustration about his prior incarceration as this was something that was frequently on his mind. His offending behaviour could be regarded as being at least partially be understood [sic] as a maladaptive way of dealing with his distress at being wrongly incarcerated previously. There appears to have been a constellation of factors – wrongful incarceration, unresolved feelings in relation to that wrongful incarceration, motivation to obtain money to pay back his family, involvement with MDMA as a form of self-medication for his depressive and social anxiety disorder, involvement with antisocial and drug-abusing associates, introduction to offending and therefore opportunity to offend." 1. Dr Allnut considered the applicant's prospects for rehabilitation to be "relatively positive". The findings of the sentencing judge 1. 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: "101. The offender was part of a professional criminal syndicate with international links. The illegal activity involved planning and organisation, although I am unable to find that the degree of sophistication was more than that inherent in offences of this type, namely, agreements to import substantial quantities of border controlled drugs. 102. Having regard to the quantity and value of the drug, the nature of the conspiratorial agreement and the methodology used, I am satisfied that the offence is properly characterised as objectively very serious." No challenge is made to these findings and they are plainly correct. 1. 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. 2. The sentencing judge was not satisfied that the applicant's mental health issues were causally connected to his involvement in the conspiracy. 3. 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. 4. 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. 5. 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. 6. Her Honour then considered questions of parity. At that time she had sentenced Watsford but had not sentenced the other conspirators. 7. 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. 8. 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. Sentencing of a co-offender 1. 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. 2. 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. 3. 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. The applicant seeks to rely on three grounds of appeal, as follows: "Ground 1: the learned sentencing judge erred in not backdating the applicant's sentence to take into account uncredited time in custody. Ground 2: the applicant suffers a justifiable sense of grievance in respect of the sentence imposed on the co-offender Mr Ibrahim following his successful sentence appeal in Ibrahim v R [2022] NSWCCA 161. Ground 3: the sentence is manifestly excessive." Ground 1: failure to backdate to take account of time served in custody 1. 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. 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. 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. 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: "The proposition which is put forward here is one which would require the court, in every case where a person was acquitted of a charge, to take into account when sentencing him on a wholly unrelated offence the period spent in custody; and in the absence of any authority that such a course should be taken, I would not be disposed to initiate it now. It seems to me that there is good reason to keep intact the division between [(i)] the functioning of the court dealing with a particular offender in respect of the offence on which he comes before the court and taking into account periods spent in custody in respect of that offence, and [(ii)] the function which the State has undertaken on occasions to recompense persons who, when the justice system has miscarried may seek solatium. I see no basis in law for the proposition put by counsel for the appellant to be put into operation in the present case, …" 1. 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: "…that [Lee CJ at CL] did not intend to lay down a general rule to be applied inflexibly that such a period of custody in respect of an unrelated offence of which the prisoner has not been validly convicted, is never to be taken into account and that such a period of custody could properly be taken into account if in the circumstances of the particular case the prisoner would be justified in feeling that he had been unjustly dealt with if the period of custody for the unrelated offence was not taken into account." 1. James J said: "In my opinion the then Chief Judge at Common Law [Lee CJ at CL] should be taken as having laid down a general principle in Regina v Niass that, although when a person is being sentenced for an offence a period which he has already spent in custody in relation to that offence should be taken into account, a period which the person has spent in custody in respect of an unrelated offence should not be taken into account. … In any event in subsequent decisions of this Court, where the Bench has consisted of three judges, the Court has treated what Lee CJ at CL said in Niass as laying down a settled general rule to be applied irrespective of the circumstances of the particular case … ." 1. 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. 2. 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: "In neither of these cases did the Court of Criminal Appeal enter upon any enquiry as to whether in the circumstances of the particular case it would be unjust to apply the principle that a period of custody in respect of an unrelated offence should not be taken into account or whether the applicant would be justified in feeling that he had been unjustly dealt with, if the period of custody in respect of an unrelated offence was not taken into account." 1. 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). 2. 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. 3. 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. 4. The judgment in this Court records (at [26]) that: "The applicant appears to submit that the sentencing Judge was bound to consider this matter and to take it into account in the exercise of the sentencing discretion." "This matter" was, apparently, an invitation to the sentencing judge to approach the period spent in custody, not referable to any offence, as "a form of credit in the bank for the Applicant", to be considered on sentence for subsequent offences. 1. 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: "27. [Niass] makes it clear that where what is sought to be done is to invite a sentencing court to take into account, as a relevant matter, a period in custody for an unrelated matter leading to acquittal or discharge, that factor is not, in an of itself, relevant to the sentencing exercise. … 30. These decisions confirm an approach that bare reliance on a period in custody for an unrelated matter, without more, is extraneous to the exercise of sentencing discretion for other matters." 1. 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). 2. 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: "…did not submit before this Court that R v Niass, insofar as it related to the 'credit in the bank' concept, was wrong or should not be followed." 1. 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. 2. 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: "The interests of the administration of justice are not engaged by this application." 1. 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. 2. This Court (Hoeben CJ at CL, Price and Fagan JJ) rejected the argument, citing Niass and Hampton, and saying (at [48]): "There is a sharp distinction between (a) time on remand that is attributable, either solely or concurrently with some other basis of custody, to refusal or revocation of bail for the charge upon which sentence will be passed and (b) pre-sentence custody that is solely attributable to an unrelated matter. That distinction is the determinant of whether the pre-sentence custody may count toward sentence and be subject of backdating, or not." 1. 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. 2. 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: "…[the sentencing judge] erred in that she did not exercise a discretion in relation to the issue of backdating the sentence due to the time spent in custody for an offence for which [the applicant] was ultimately acquitted. The reason for the uncredited time in custody, namely, his acquittal for the offences for which he spent time in gaol, enlivened the exercise of that discretion. The discretion to backdate the sentence should have been exercised in the applicant's favour recognising that there is an unfairness to the applicant if no credit is given for those 1345 days." 1. 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. 2. 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. 3. 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: "(i) the strong conviction of the later court that the earlier judgment was erroneous and not merely the choice of an approach which was open, but no longer preferred." and "(ii) the nature of the error that can be demonstrated with a degree of clarity by the application of correct legal analysis." 1. 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]: "…the constitutional importance of the doctrine of precedent cannot be entirely at large within a national integrated legal system to the extent that each intermediate appellate court is entitled to determine for itself its own practice with respect to following earlier decisions. That is particularly so in circumstances where, as will be seen below, intermediate appellate courts are required to take into account, and in some circumstances follow, decisions of courts of coordinate jurisdiction." 1. 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"). 2. 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: "…whilst intermediate appellate courts are not legally bound by their own earlier decisions, they should only depart from such authority or the authority of courts of co-ordinate jurisdiction within the national system if they are of the view that the decision in question is 'plainly wrong' and, such an error having been identified, there are 'compelling reasons' to depart from the earlier decision or decisions. The fact that reasonable minds might differ on the interpretation of a statutory provision will generally be insufficient to warrant a conclusion that an earlier or existing interpretation of the provision or provisions in question was 'plainly wrong' … ." 1. 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]: "Decisions of courts in other States concerning the commencement date of sentences appear to depend upon local statutory provisions, and the approach of Judges in those jurisdictions operating within their own statutory frameworks. To the extent that Ground 2 invites this Court to adopt the reasoning and apply decisions in other States (including R v Renzella [1997] 2 VR 88 and other decisions to which the Court was referred in argument), particular care is needed. This Court has noted that caution should be exercised where matters of practice and procedure in one jurisdiction are relied upon in support of arguments in this jurisdiction: R v NZ [[2005] NSWCCA 278; 63 NSWLR 628]." 1. 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). 2. 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. 3. When pressed to identify with precision the "common law principle" on which he relied, senior counsel said: "…where a person has served a period of imprisonment for an offence in which he is later acquitted, he has served a sentence with the benefit of hindsight at the time of the sentencing that he should not have served, that principles of fairness and justice would require, generally speaking, that that period of time which he has served for an offence for which he has been acquitted ought to be taken [into] account on sentence either by way of backdating or reducing the total sentence." At other points in the argument the proposition was put in a less absolute way, and was expressed as being that the sentencing court has a discretion to take into account the unrelated pre-sentence custody. 1. 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. 2. 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. 3. 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: "Regard must be had in re-sentencing to the period during which the applicant's detention in custody was doubly warranted." and gave effect to that determination by: "…reducing by six months, to allow in a broad way for the period from September to March, the head term and the non-parole period which it would otherwise determine upon." 1. 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: "In other cases [i.e. cases other than those to which s 18(1) applied] the section is silent and a court is not only empowered but obliged as a matter of justice to take presentence detention into account … Presentence detention to which s 18 does not apply is to be taken into account in the exercise of the court's discretion." 1. 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]: "The authorities make it clear that the manner in which the 'dead time' is to be taken into account is not a mathematical exercise. In other words, that factor does not entitle an offender, in each case, to a reduction in the sentence that is identical to the 'dead time' already spent by the offender in custody. However, it is important to bear in mind that the principle reflects a recognition, in an appropriate case, that, in addition to the sentence which is to be imposed, the offender has already spent a period in custody which could not otherwise be treated as part of a sentence served by that offender for a different offence for which the offender has been convicted. In that way, the principle is based on fundamental considerations of fairness, as well as on the principle of totality." 1. 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. 2. 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: "There are, of course, many cases where a person cannot be given credit for pre-sentence detention. He or she may be on remand for several months and then acquitted. The time spent on remand cannot be regarded as a bank balance on which to draw in relation to offences unconnected with the reason for custody, but that is not the case here." His Honour then cited R v Governor of Brockhill Prison; Ex parte Evans [1997] QB 443 at 462 as follows: "It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served" (emphasis added by Callaway JA). As the custody in that case was "doubly warranted", the proposition for which the applicant contends did not arise. 1. 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." 2. 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: "17. In the present case and others like it, a period of detention ('dead time', as we have called it) sought to be brought to account concerns other conduct, quite unrelated to the matters for which the person stands for sentence. It is a period which, viewed with the benefit of hindsight at the date of sentencing, should not have been served. In the present case, as we have explained, this was so because the charges to which the earlier detention related were subsequently dismissed. 18. It does seem to us, as we raised in the course of argument, that there may be a question for investigation as to the basis on which detention of that kind is thought to be relevant when the person comes to be sentenced for quite unrelated matters. In so saying, we recognise that there is obvious injustice where a person has served a term of imprisonment which he or she should not have served. In other jurisdictions, that injustice is addressed by formal procedures for compensation for such periods. No such system exists in this State. 19. The question which may require investigation is whether a form of judicial compensation, by way of sentence discounts in relation to other matters, is the appropriate way to deal with this species of injustice. As we have said, the law in Victoria as it stands is that it is properly dealt with in that way. As Weinberg JA pointed out, however, the logic of this approach would seem to be that 'unjust' imprisonment should always stand to a person's credit, however long after the event it is sought to be called in aid. As we say, that is a question for another day." 1. 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. 2. Tate JA said at [29]: "The expression 'dead time' is perhaps particularly justified when, as here, it relates to time spent in custody on remand for an offence where a nolle prosequi is entered, or a charge is withdrawn, and during which the appellant is neither serving another sentence, nor on remand for another offence for which he or she is ultimately tried. However, some caution was expressed in Warwick about the application of the Renzella discretion to 'dead time' and, more generally, about the application of the Renzella discretion far beyond its origins." 1. Her Honour went on to say: "35. The Renzella principle has been developed and applied by this Court many times since. [Her Honour then cited the reasons of Callaway JA in Arts and Briggs and continued:] 36. …it is clear from the current terms of s 18(1) that it only encompasses pre-sentence detention that is referable, at least, to the offences for which the offender is being sentenced. … 38. …the problem in Renzella and Heaney was that the detention related to those offences as well as to unrelated offending and, as mentioned above, the terms of s 18(1) at the time permitted a declaration of pre-sentence detention only where it was attributable to the offence for which the sentence was being imposed 'and for no other reason'. … However, the Renzella discretion has been applied in circumstances that are far removed from those in which custodial detention is 'warranted twice over', to include circumstances where the charges for which an offender is detained are withdrawn or where he or she is acquitted of those charges. In those circumstances, the period of detention is time that, with hindsight, should not have been served and the language of 'double warranty' in those circumstances is inapt." (emphasis in original) 1. Her Honour then went on to say at [60]: "The line of authority following Renzella in Victoria does not appear to support the view expressed in Brockhill Prison that custody wholly unrelated to the offences for which sentence is passed will not count against the period of the sentence to be served. The authorities which focus upon the exercise of the Renzella discretion do not appear to treat as a relevant question the issue of whether the offences before the judge imposing the sentence are related to the offences for which a discount is sought. Although, as Maxwell P and Weinberg JA remarked in Warwick, the detention discounted in Renzella 'did relate to the offences for which the offender was being sentenced', the line of authority applying Renzella has taken as its starting point that the offending, the detention for which a discount is sought, is unrelated to the offending to which the offender is being sentenced. However, this is not to deny the force of the limitation recognised by Callaway JA on the exercise of the Renzella discretion, namely, that a period spent in detention on a charge for which an offender is ultimately acquitted, or in relation to which charges are withdrawn, cannot be regarded as credit in a bank to be called upon to reduce a sentence for unrelated offending. There is no entitlement to a discount." (emphasis in original) 1. After referring to Stares and Warwick, her Honour concluded at [63]: "One approach to the giving of judicial compensation by way of sentence discounts where it is clear to a court that an offender has served a period of imprisonment which he or she should not have served has been to treat the issue as one relating to the assessment of the overall period of incarceration that the offender will experience." 1. In the same case Weinberg JA said: "5. Since Renzella there has been a steady growth in reliance upon so-called 'dead time' as a mitigating factor. In my view, however, Renzella 'dead time' is often now invoked in circumstances where its application is difficult to justify, either as a matter of logic, or in principle. 6. … Now, in many cases, the period of detention which is sought to be brought to account concerns conduct that is not only unrelated to the matters for which the accused stands to be sentenced, but also involves time that has been wrongly served in the past, and sometimes even the distant past. 7. Any accused who has been wrongly imprisoned is, of course, the victim of a grave injustice. It does not follow, however, that it is society's duty to ameliorate that injustice by giving the accused credit for the time spent in custody when he is sentenced at a later time for entirely unrelated offending. 8. Despite my misgivings as to current state of the law on this subject, I agree that the weight of authority requires that the appellant receive some credit for at least part of the time that he spent in custody on the charge of attempted murder." 1. 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]: "There can be no question of a person on remand who is subsequently acquitted acquiring a kind of bank balance on which to draw in relation to subsequent offences unconnected with the reason for custody …; but sentencing involves a very wide discretion and the matters to which I have just referred are important parts of the applicant's background. We are entitled to take them into account and to temper the sense of injustice that he entertains." That "tempering" was achieved by an "exceptional" order that the sentences for the five offences under consideration be served concurrently. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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). 6. Section 16A(1) of the Crimes Act (Cth) provides: "In determining the sentence to be passed, or the order to be made, in respect of any person for a federal offence, a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence." 1. 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: "the need to ensure that [the offender] is adequately punished for the offence;" that is, the offence for which sentence is to be passed. Nothing in the subs (2) list relates to a period of pre-sentence custody unrelated to the offence for which sentence is to be passed. 1. Section 16E of the Crimes Act (Cth) provides: "(1) Subject to subsections (2) and (3), the law of a State or Territory relating to the commencement of sentences and of non-parole periods applies to a person who is sentenced in that State or Territory for a federal offence in the same way as it applies to a person who is sentenced in that State or Territory for a State or Territory offence. (2) Where the law of a State or Territory has the effect that a sentence imposed on a person for an offence against the law of that State or Territory or a non-parole period fixed in respect of that sentence: (a) may be reduced by the period that the person has been in custody for the offence; or (b) is to commence on the day on which the person was taken into custody for the offence; the law applies in the same way to a federal sentence imposed on a person in that State or Territory or to a non-parole period fixed in respect of that sentence. (3) Where the law of a State or Territory does not have the effect mentioned in subsection (2), a court (including a federal court) in that State or Territory that imposes a federal sentence on a person or fixes a non-parole period in respect of such a sentence must take into account any period that the person has spent in custody in relation to the offence concerned." 1. 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. 2. Section 47 of the Sentencing Procedure Act (made applicable by s 16E of the Crimes Act (Cth)) relevantly provides: "(1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed. (2) A court may direct that a sentence of imprisonment – (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, … (b) … (3) In deciding whether or not to make a direction under subsection (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence … ." It will be observed that what s 47(3) obliges the court to take into account is any time for which the offender has been held in custody in relation to the offence for which sentence is to be passed. Like subss (2) and (3) of 16E of the Crimes Act (Cth) it says nothing of pre-sentence custody not attributable to the offence for which sentence is to be passed. 1. 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]. 2. 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. 3. 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): "…to assimilate criminal procedure, including remedies by way of appeal, in State and Federal offences" and the policy upon which the provision is based as: "…that the administration of the criminal law should be uniform in any given State although some of the offences are created by Federal legislation and the others exist under State law." 1. Dixon J agreed; at 560, his Honour identified the policy of s 68 as: "…to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State and to avoid the establishment of two independent systems of criminal justice." His Honour added: "It is, in my opinion, no objection to the validity of such a provision that the State law adopted varies in the different States." 1. 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: "Thus the administration of the criminal law of the Commonwealth is organised upon a State by State basis and there may be significant differences in the procedures applying to the trial of a person charged with an offence against a Commonwealth law according to the State in which he is tried. And if a person is convicted of a federal offence and sentenced to a term of imprisonment, he will ordinarily serve that term in a State prison in the State in which he is convicted. Prison systems differ significantly from State to State, but that is something which, in relation to federal offenders, is contemplated by s 120 of the Constitution. There is no general requirement contained in the Constitution that Commonwealth laws should have a uniform operation throughout the Commonwealth." 1. 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. 2. Gleeson CJ quoted the passage from Dixon J's reasons in Williams (No 2) extracted above, and said (at [7]): "That general policy reflects a legislative choice between distinct alternatives: having a procedure for the administration of criminal justice in relation to federal offences that is uniform throughout the Commonwealth; or relying on State courts to administer criminal justice in relation to federal offences and having uniformity within each State as to the procedure for dealing with State and federal offences. The choice was for the latter. The federal legislation enacted to give effect to that choice, therefore, had to accommodate not only differences between State procedures at any given time, but also future changes to procedures in some States that might not be adopted in others. That explains the use of general and ambulatory language, and the desirability of giving that language a construction that enables it to pick up procedural changes and developments as they occur in particular States from time to time." His Honour therefore held (with the concurrence of all other members of the Court) that the stated case procedure provided by the South Australian legislation was applicable in respect of trials for federal offences. 1. 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. 2. 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: "25. As noted in Johnson v The Queen [at [15]], s 16A of the Crimes Act, on its proper construction, accommodates the application of common law principles of sentencing, such as the principle of 'totality' discussed in Mill v The Queen [(1988) 166 CLR 59; [1988] HCA 70]. Section 16A accommodates the application of that and some other judicially developed general sentencing principles because those principles give relevant content to the statutory expression 'of a severity appropriate in all the circumstances of the offence' used in s 16A(1), as well as some of the expressions used in s 16A(2), such as 'the need to ensure that the person is adequately punished for the offence' (s 16A(2)(k)). But s 16A does not permit the making of generalisations across all forms of federal offence about how individual sentences are to be fixed. … 49. The consistency that is sought is consistency in the application of the relevant legal principles. And that requires consistency in the application of Pt 1B of the Crimes Act. When it is said that the search is for 'reasonable consistency', what is sought is the treatment of like cases alike, and different cases differently. Consistency of that kind is not capable of mathematical expression. It is not capable of expression in tabular form. … 53. Next, in seeking consistency, sentencing judges must have regard to what has been done in other cases. … … 57. In dealing with appeals against sentences passed on federal offenders, whether the appeal is brought by the offender or by the prosecution, the need for consistency of decision throughout Australia is self-evident. It is plain, of course, that intermediate courts of appeal should not depart from an interpretation placed on Commonwealth legislation by another Australian intermediate appellate court, unless convinced that that interpretation is plainly wrong. So, too, in considering the sufficiency of sentences passed on federal offenders at first instance, intermediate appellate courts should not depart from what is decided by other Australian intermediate appellate courts, unless convinced that the decision is plainly wrong." (emphasis in original) 1. 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: "…in the reasonable expectation that he would be sentenced in accordance with current sentencing practices in Victorian courts." 1. 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. 2. The High Court accepted that contention. The plurality (French CJ, Keane and Nettle JJ) said: "18. … As Hili v The Queen made clear, where a state court is required to sentence an offender for a federal offence, the need for sentencing consistency throughout Australia requires the court to have regard to sentencing practices across the country and to follow decisions of intermediate appellate courts in other States and Territories unless convinced that they are plainly wrong. 19. It follows that to approach the sentencing task on the basis that an offender is entitled to assume that he or she will be sentenced in accordance with current sentencing practices in the State or Territory where the offender is sentenced is an error that is likely to result in just the kind of inconsistency that the Australia-wide approach mandated by Hili is calculated to avoid. 20. Of course, that is not to say that there are not differences between various State and Territory laws concerning trial and conviction, including sentencing laws, which may be picked up and applied to federal offences by s 68 of the Judiciary Act 1903 (Cth). The Australia-wide approach mandated in Hili recognises that, to some extent at least, the effect of s 68 of the Judiciary Act is 'to place the administration of the criminal law of the Commonwealth in each State upon the same footing as that of the State' [citing Williams (No 2)]. … 23. Part 1B of the Crimes Act does not specifically provide for sentencing judges to take current sentencing practices into account. Apart from the application of such relevant State or Territory legislation as may be picked up and applied by s 68 of the Judiciary Act, the obligation of a judge to take current sentencing practices into account when sentencing an offender for a federal offence arises as a matter of common law. Section 5(2)(b) of the Sentencing Act 1991 (Vic) provides for a sentencing judge to take current sentencing practices into account, and to some extent it is capable of operating consistently with Pt 1B of the Crimes Act. But, whereas in its application to State offences s 5(2)(b) necessarily directs attention to current sentencing practices in Victoria (albeit not necessarily to the exclusion of current sentencing practices elsewhere in the Commonwealth), in the case of federal offences it is implicit in Pt 1B of the Crimes Act that a sentencing judge must have regard to current sentencing practices throughout the Commonwealth. 24. As Kirby J observed in Putland v The Queen [(2004) 218 CLR 174; [2004] HCA 8 at [81]-[82]], a federal offence is, in effect, an offence against the whole Australian community and so the offence is the same for every offender throughout the Commonwealth. Hence, in the absence of a clear statutory indication of a different purpose or other justification, the approach to the sentencing of offenders convicted of such a crime needs to be largely the same throughout the Commonwealth. Further, as Gleeson CJ stated in Wong [Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64], the administration of criminal justice functions as a system which is intended to be fair, and systematic fairness necessitates reasonable consistency. And, as was observed by the plurality in Hili [at [53]], the search for consistency requires that sentencing judges have regard to what has been done in comparable cases throughout the Commonwealth. 25. Counsel for the respondent [the offender] submitted that, allowing that the Court of Appeal was bound to have regard to sentencing practices throughout the Commonwealth, it was not, however, incumbent on the Court of Appeal to follow sentencing practices in other States. Having had regard to current sentencing practices in other States, it was open to the Court of Appeal to prefer Victorian current sentencing practices and, in view of current sentencing practices in Victoria, to conclude that the sentence imposed was excessive. 26. That submission should be rejected. As was explained in Hili, the point of sentencing judges and intermediate appellate courts having regard to what has been done in other comparable cases throughout the Commonwealth is twofold: first, it can and should provide guidance as to the identification and application of relevant sentencing principles; and, secondly, the analysis of comparable cases may yield discernible sentencing patterns and possibly a range of sentences against which to examine a proposed or impugned sentence. 27. It does not mean that the range of sentences so disclosed is necessarily the correct range or otherwise determinative of the upper and lower limits of sentencing discretion … But it does mean that to prefer one State's sentencing practices to sentencing practices elsewhere in the Commonwealth, or at least to prefer them for no more reason than that they are different, is contrary to principle, tends to exacerbate inconsistency and so ultimately is unfair." 1. 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. 2. 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. 3. I would reject Ground 1 of the proposed appeal. Ground 3: manifest excess 1. It is convenient next to address Ground 3, by which the applicant asserts that the sentence imposed was manifestly excessive. 2. 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. 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. 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. 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. 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. 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. 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]: "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." His Honour referred to Jomaa v R [2022] NSWCCA 112 ("Jomaa") as "a useful comparable case". 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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. 11. 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. 12. I would reject Ground 3 of the proposed appeal. Ground 2: parity 1. 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. 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. 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. 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. 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. 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: "Just as consistency in punishment – a reflection of the notion of equal justice – is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community." 1. 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: "The same or similar words appear in the statutes of the other Australian States, and they are wide enough to empower the court in its discretion to reduce a sentence not in itself manifestly excessive in order to avoid a marked disparity with a sentence imposed on a co-offender. It may be said that the very existence of the disparity reveals that an error must have been committed, but I would prefer frankly to acknowledge that the reason why the court interferes in such a case is that it considers that the disparity is such as to give rise to a justifiable sense of grievance, or in other words to give the appearance that justice has not been done. The decision whether the existence of a disparity calls for intervention is a matter which lies very much within the discretion of the Court of Criminal Appeal." 1. 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.) 2. 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: "On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal." 1. 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". 2. 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: * acting on a wrong principle; * taking into account extraneous or unrelated matters; * failure to take into account a material consideration; * mistake of fact; * a result that is unreasonable or plainly unjust. 1. 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. 2. 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: "It cannot be the case, in my view, that a sentence otherwise unappealable becomes somehow transformed into a sentence contingently appealable merely by reason of the fact that it is imposed at a time when there are outstanding sentence proceedings against some co-offender or co-offenders. A sentence when imposed is then either appealable or it is not. If such a sentence is not then appealable, thereafter it must be left, in my view, to stand and to take effect according to its tenor." Implicit in the High Court's conclusion is that a sentence which, but for the subsequent sentence imposed on a co-offender, would be free from error, may nonetheless be legitimately disturbed on appeal for disparity. Indeed, it is well established that a ground of appeal that establishes unwarranted disparity in a sentence compared to that of a co-offender may be an indicator of error: Green at [32]. In Postiglione at 301, Dawson and Gaudron JJ said: "The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." (internal citations omitted) 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. The next question is what consequences flow from that conclusion. 7. 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"). 8. In Kentwell, having approved the observations of Spigelman CJ in Baxter, the plurality (French CJ, Hayne, Bell and Keene JJ) said: "42 … When a judge acts upon a wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the [Sentencing Procedure Act] and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be 'warranted in law'. A sentence that happens to be within the range but that has been imposed as the result of a legally flawed determination is not 'warranted in law' unless, in the exercise of its independent discretion, the Court of Criminal Appeal determines that it is the appropriate sentence for the offender and the offence. This is not to say that all errors in the sentencing of offenders vitiate the exercise of the sentencer's discretion. …" (internal citations omitted) 1. 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. 2. 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. 3. 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. 4. The orders I propose are: 1. The time within which to appeal is extended to 6 September 2022; 2. Leave to appeal is granted; 3. The sentence imposed in the District Court on 27 April 2020 is set aside; 4. The applicant is sentenced to imprisonment comprised of a non-parole period of 10 years and 4 months, commencing on 8 August 2017 and expiring on 7 December 2027, with a balance of term of 5 years and 3 months, which will expire on 7 March 2033. 1. GARLING J: I agree with the orders and sentence proposed by Simpson AJA and with her Honour's reasons. 2. IERACE J: I also agree with the orders and sentence proposed by Simpson AJA and with her Honour's reasons. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 October 2023