Court of Criminal Appeal

Supreme Court

New South Wales

Case Name: Ahmad v R

Medium Neutral Citation: [2023] NSWCCA 294

Hearing Date(s): 01 May 2023;

09 October 2023, 23 October 2023 – written
submissions

Date of Orders: 30 November 2023

Decision Date: 30 November 2023

Before: Leeming JA at [1]

Rothman J at [2]
Garling J at [3]

Decision: See [68]

Catchwords: CRIME – appeals – appeal against sentence – attempt

to import commercial quantity of border-controlled drug
– ground of appeal based upon Totaan v R [2022]
NSWCCA 75 – sentencing judge did not accept
hardship to family as exceptional – Crown conceded
“Totaan error” – appellant’s incarceration causes
hardship to family and dependents – parity with co-
offenders – appellant resentenced

Legislation Cited: Crimes Act 1914 (Cth)

Criminal Appeal Act 1912
Criminal Code (Cth)

Cases Cited: Clarke v R [2021] NSWCCA 248

Dib v Rex [2023] NSWCCA 243
Ibrahim v R [2022] NSWCCA 161
Jimmy v R [2010] NSWCCA 60
Kentwell v The Queen (2014) 252 CLR 601; [2014]
HCA 37
R v Ahmad, Ahmad; R v Fakhreddine, Hassan [2020]
 NSWDC 370
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75

Texts Cited: Not Applicable

Category: Principal judgment

Parties: Ahmad Ahmad (Applicant)

Crown (Respondent)

Representation: Counsel:
Mr T Edwards SC / Mr T Woods (Applicant)
Mr P McGuire SC / Mr C Tran (Crown)

Solicitors:
Karnib Saddik (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s): 2017/241066 (005)

Publication Restriction: Not Applicable

Decision under appeal:

Court or Tribunal: District Court of New South Wales

Jurisdiction: Criminal

Citation: [2020] NSWDC 370

Date of Decision: 22 June 2020

Before: Yehia SC DCJ

File Number(s): 2017/241866; 2017/241867

HEADNOTE
[This headnote is not to be read as part of the judgment]

The appellant, Ahmad Ahmad, pleaded guilty to a charge of attempting to

import a commercial quantity of a border-controlled drug contrary to ss 11.1(1)
and 307.1(1) with ss 11.2A(1)(a) and 11.2A(1)(b)(ii) of the Criminal Code (Cth).
The charge related to a period of ten months in 2016-2017, during which the
appellant, with a number of others, attempted 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 appellant was sentenced in the District Court to 15 years and 2 months’
imprisonment with a non-parole period of 8 years and 9 months, commencing 8
August 2017.

The appellant sought leave to raise three grounds of appeal. First, that the
sentencing Judge erred in failing to take into account hardship to the
appellant’s family or alternatively in applying a wrong principle to the
consideration of the matter. Secondly, that the sentence is manifestly
excessive. Thirdly, that the appellant has a justifiable sense of grievance as a
result of the sentence imposed upon his co-offender Hassan Fakhreddine.

The Court held, granting leave to appeal and resentencing the applicant to 12
years and 8 months’ imprisonment with a non-parole period of 7 years and 6
months (per Garling J at [3], Leeming JA agreeing at [1] and Rothman J
agreeing at [2]):

(1) A court sentencing a federal offender does not need to find exceptional
circumstances or “exceptional hardship” before having regard to the
probable effect of a sentence on a family member or dependant: [10].
The sentencing Judge, acting upon an understanding of the law which
was then conventional, erred in failing to take into account matters
relevant to family hardship that her Honour did not regard as amounting
to “exceptional circumstances”: [11]. The appellant should thus be
resentenced: [14].
Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75, applied;
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.
(2) Where error has been established and the Court of Criminal Appeal is to
embark on the exercise of the sentencing discretion afresh, there is no
utility in the Court considering whether a sentence which is the product
of legal error is manifestly excessive: [16].
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.
(3) This Court only comes to consider a question of parity in circumstances
where it is accepted that the sentence is in all other respects an
appropriate one and one falling within the proper discretionary range of
sentences applicable in the circumstances: [19]. The appellant’s
abandonment of ground three is appropriate and the principle of parity is
considered in his resentence.
Clarke v R [2021] NSWCCA 248 (at [6], citing Jimmy v R [2010]
NSWCCA 60 at [251]; (2010) 77 NSWLR 540), applied.
JUDGMENT
1 LEEMING JA: I agree with Garling J.

2 ROTHMAN J: I have had the advantage of reading the reasons for judgment of
Garling J. I agree with his Honour’s reasons and with the orders he proposes.

3 GARLING J: The applicant, Mr Ahmad Ahmad, seeks leave to appeal pursuant

to s 5(1)(c) of the Criminal Appeal Act 1912, against a sentence imposed on
him by Yehia SC DCJ (as her Honour then was) in the District Court of New
South Wales. He also seeks an extension of time within which to seek leave to
appeal.

4 The applicant pleaded guilty to a charge that between about 25 February 2017
and 8 August 2017, he attempted, with Hassan Fakhreddine, Hakan Arif, Nejmi
Saki, Mostafa Dib, Moustafa Ibrahim and Ryan Watsford, to import a
commercial quantity of a border-controlled drug, namely MDMA. That offence
was contrary to ss 11.1(1) and 307.1(1) with ss 11.2A(1)(a) and 11.2A(1)(b)(ii)
of the Criminal Code (Cth). It carries a maximum penalty of life imprisonment.

5 On 22 June 2020, Yehia SC DCJ (“the sentencing Judge”) sentenced the

applicant to 15 years and 2 months’ imprisonment, commencing on 8 August
2017 and expiring on 7 October 2032: see R v Ahmad, Ahmad;
R v Fakhreddine, Hassan [2020] NSWDC 370. A non-parole period of 8 years
and 9 months was specified to commence on 8 August 2017.

6 The applicant seeks leave to raise three grounds of appeal. First, that the
sentencing Judge erred in failing to take into account hardship to the
applicant’s family or alternatively in applying a wrong principle to the
consideration of the matter. Secondly, that the sentence is manifestly
excessive. Thirdly, that the applicant has a justifiable sense of grievance as a
result of the sentence imposed upon his co-offender Hassan Fakhreddine.

7 For reasons which will shortly appear having regard to the Crown’s attitude to
the application, it is appropriate for the Court to grant leave to appeal. I will
refer to the applicant as the appellant.

8 It was necessary for this Court to delay its delivery of judgment to enable a
proper consideration of the principle of parity and to allow further submissions
 to be made until a time after the delivery of the judgment in Dib v Rex [2023]
NSWCCA 243.

Ground One – Family Hardship

9 The first ground of appeal is that the sentencing Judge, although acting upon
an understanding of the law which was then conventional, erred in failing to
take into account hardship to the appellant’s family or alternatively in applying a
wrong principle to consideration of the matter. This ground concerns the
application of s 16A(2)(p) of the Crimes Act 1914 (Cth). That section provides:

“16A Matters to which court to have regard when passing sentence etc —
federal offences
(1) 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.
(2) In addition to any other matters, the court must take into account such of
the following matters as are relevant and known to the court:
…
(p) the probable effect that any sentence or order under consideration would
have on any of the person’s family or dependants.”
10 In particular, the ground of appeal raises error consequent upon the decision of
this Court in Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75 (Bell CJ,
Gleeson JA, Harrison, Adamson and Dhanji JJ). In that decision, Bell CJ (with
whom the other members of the Court agreed), held that a court sentencing a
federal offender does not need to find exceptional circumstances or
“exceptional hardship” before having regard to the probable effect of a
sentence on a family member or dependant. The Chief Justice held that
s 16A(2)(p) should be applied according to its terms, without any judicial gloss.

11 During the proceedings before the sentencing Judge, the appellant relied on
evidence, and made submissions, about the adverse effect of a sentence of
imprisonment on his family. In her Honour’s reasons on sentence, she
remarked, “I accept that due to his wife’s medical conditions he became the
primary caretaker for the children for most of their lives”: at [193]. Otherwise,
her Honour did not make any reference to the appellant’s evidence relevant to
s 16A(2)(p) (“family hardship”). The appellant submits that it may be inferred
that her Honour did not regard those matters as amounting to “exceptional
 hardship”, and therefore did not take them into account on sentence. He
submits that as a result of the decision in Totaan, that approach is wrong. The
appellant submits that accordingly, the sentence should be quashed and the
appellant resentenced in accordance with Kentwell v The Queen (2014) 252
CLR 601; [2014] HCA 37. The appellant submits that on re-sentencing the
Court should impose a lesser sentence.

12 The Crown accepts that the first proposed ground of appeal must succeed. It
accepts that the sentence must be quashed, and the appellant resentenced in
accordance with Kentwell, unless the Court concludes that no lesser sentence
is warranted in law.

13 The Crown’s ultimate submission is that no lesser sentence is warranted in

law. The Crown does not oppose an extension of time or a grant of leave to
bring the appeal.

14 The Crown’s concession was, in this case, an appropriate one. During the
hearing of the appeal, the Court informed the parties that, in light of the
concession, it would proceed to resentence the appellant afresh in accordance
with Kentwell.

Ground Two
15 Ground two asserted that the sentence imposed by the sentencing Judge was
manifestly excessive. During oral argument, the appellant pressed this ground,
despite the Crown’s concession that the first ground had been made out.
Counsel for the appellant acknowledged the difficulty in engaging in a dispute
about whether a sentence is manifestly excessive, where that sentence was to
be set aside and the Court would be proceeding to resentence the appellant.
The appellant contended that that ground still had relevance if the Court, on
re-sentencing, concluded that no lesser sentence is warranted.

16 I would reject that submission. Kentwell at [43] makes it clear that where an
error of law has been identified in the course of the sentencing process, the
task of the Court of Criminal Appeal is to embark on the exercise of the
sentencing discretion afresh taking into account, if relevant, events, facts and
matters which have occurred since the sentence was originally imposed. In
those circumstances, there is no utility or purpose for this Court to proceed to
 consider and determine whether a sentence which is the product of legal error
was manifestly excessive. It is inappropriate to deal with ground two in
circumstances where ground one has been upheld.

17 Nevertheless, the submissions which were made in writing on this ground

raised matters which are potentially relevant to the Court’s own exercise of the
sentencing discretion and will be considered as a part of the fresh exercise of
the sentencing discretion.

Ground Three
18 Ground three is a parity ground which asserts that the appellant has a
justifiable sense of grievance as a result of the sentence imposed upon his co-
offender Hassan Fakhreddine. In oral argument, this ground was not pressed,
as a result of the Crown’s concession that ground one had been made out and
that the Court would be proceeding to a fresh exercise of the sentencing
discretion.

19 As I observed in Clarke v R [2021] NSWCCA 248 (at [6], citing Jimmy v R

[2010] NSWCCA 60 at [251]; (2010) 77 NSWLR 540):

“[the] Court only comes to consider a question of parity, or alternatively put, an

inappropriate degree of disparity between sentences, in circumstances where
it is accepted that the sentence is in all other respects an appropriate one and
one falling within the proper discretionary range of sentences applicable in the
circumstances.”
20 Accordingly, the appellant’s abandonment of ground three is appropriate.
However, I note that in embarking upon any resentencing considerations, the
principle of parity will need to be considered.

Re-sentencing
Introduction
21 Where a sentencing judge has acted upon a wrong principle, the Court of
Criminal Appeal does not assess whether and to what degree the error
influenced the outcome. Rather, it is the duty of the Court of Criminal Appeal
to exercise the sentencing discretion afresh: Kentwell at [42]–[43]. I now move
to consider a resentence of the appellant.

22 I note that except for the issue raised by ground one, the appellant on appeal
did not challenge any of the specific findings of the sentencing Judge in relation
 to the facts the subject of the offending (including his role in the joint criminal
enterprise) or the subjective case of the appellant except for the matters
relating to family hardship. It is appropriate to proceed to resentence upon the
basis of those findings.

23 Accordingly, in re-sentencing the appellant, I have had careful consideration to

those findings, and adopt them all. It is appropriate to provide a summary of
her Honour’s relevant and important findings, and to make additional
observations and findings as appropriate.

Facts
24 The appellant, together with his co-offenders, was involved in a scheme to
import a commercial quantity of MDMA (“the MDMA importation scheme”) into
Australia from the Netherlands.

25 The genesis of the scheme was an Australian Federal Police investigation into
the criminal activities of Mr Watsford, one of the appellant’s co-offenders, which
later expanded to include Mr Ibrahim and Mr Dib. The investigation involved a
man, “Zane”, who was an undercover law enforcement officer. Zane built a
relationship with members of the group.

26 In October 2016, Zane told Mr Watsford that he had access to a “door”. In this
context, a “door” is a person or methodology able to facilitate the importation of
illegal goods into Australia without being detected by Australian authorities.
Zane emphasised that he could get anything into Australia. Later, Mr Watsford
introduced Zane to both Mr Ibrahim and Mr Dib. The three men and Zane
began discussions about the importation of MDMA using Zane’s “door”. They
ultimately decided on the Netherlands as the place from which to source the
drugs.

27 In early 2017, Mr Arif became involved in the scheme. Mr Arif was the person
who was to source the drugs in the Netherlands. Mr Saki was one of his
associates. At that time, the MDMA importation scheme involved Zane,
Mr Watsford, Mr Ibrahim and Mr Dib in the Sydney-based syndicate, and
Mr Arif and Mr Saki in the overseas-based syndicate. The plan was for the
latter group to source the drugs in the Netherlands and make them available
for the former group to arrange for the importation of those drugs into Australia.
28 Mr Dib eventually approached the appellant and Mr Fakhreddine and invited
them to participate in the MDMA importation scheme, which they did. I will
come to the appellant’s particular role in that scheme shortly.

29 In May 2017, in the Netherlands, an exchange of drugs and money took place
between the overseas-based syndicate and the Sydney-based syndicate. The
quantity of drugs was very substantial. It involved a gross weight of 797.08kg,
with a pure weight of 594.43kg of MDMA. The proposed shipment of drugs
was covertly seized by police in the Netherlands and the shipping container
being used for the importation was loaded with an inert substance in
substitution for the MDMA. Accordingly, the drugs were never actually
imported into Australia, or disseminated into the community. Members of the
joint criminal enterprise, including the appellant, were arrested in August 2017.

30 The appellant pleaded guilty in November 2019, before trial, after initially
pleading not guilty. The sentencing Judge allowed a discount of 20% for the
plea of guilty to reflect the utilitarian value of the plea, which value was
substantial in this case because it avoided the need to run a lengthy trial
occupying significant time and resources. No complaint is made about the
extent of the discount. In my view, it was an appropriate one.

Objective Seriousness
31 In considering the objective seriousness of the offence, the sentencing Judge
made findings about the appellant’s role and involvement in the scheme. Her
Honour found that appellant was initially promised between $250,000 and
$300,000 for his participation in the scheme. He, together with
Mr Fakhreddine, operated initially to provide distance or separation between
the senior members of the scheme on each side. As the scheme progressed,
the appellant’s role changed from one of being simply a conduit of information
and providing security for Mr Dib, to someone whom Mr Dib could refer to, or
rely upon, for various defined tasks. For example, Mr Dib relied upon the
appellant to ensure that various calculations in relation to commissions and
breakdowns of various figures were accurate.

32 There was also an understanding or agreement that the appellant was going to
contribute a portion of the “door” fee and a portion of the shortfall of the
 purchase price for the MDMA (after it increased from €4000 to €4500 per
kilogram). The appellant did not have the cash to make the contributions
upfront.

33 Her Honour found that the appellant’s role in the scheme was not a
decision-making role of any significance and that he did not have any control
over the “door”, nor the drugs sourced in the Netherlands, the pricing, the
packaging or the transportation of the drug. Nevertheless, her Honour was
satisfied that the appellant participated in the enterprise for a number of
months and had played an important role in it. He was aware at all times of the
nature and scope of the MDMA importation scheme. His role was not limited to
merely being a mindless conduit of information between the two groups or
simply to provide “muscle” for Mr Dib. However, he was not Dib’s “partner”,
and he was not a lynchpin in the scheme. The importation could still have
succeeded without the appellant being involved. But he chose to become
involved.

34 The sentencing Judge was satisfied that prior to the MDMA importation
scheme, the appellant had not been involved in any drug-related activity and
had not attempted to import border-controlled drugs. Zane presented the
opportunity of “the door” to the senior participants who in turn engaged the
appellant.

35 After considering the offender’s role in the scheme, the fact that the maximum
penalty for the offence is life imprisonment, the quantity of the drugs involved,
and the fact that the drugs were not disseminated into the community, the
sentencing Judge concluded, correctly in my view, that the offence was
objectively very serious.

36 In relation to the role of the undercover operative, her Honour found that
although he was pivotal to the scheme, the appellant was, nevertheless, at all
times a willing participant in the MDMA importation scheme. There was no
occasion on which he expressed any reluctance, disinterest or hesitation in his
involvement in the enterprise.
Subjective Case of the Appellant
37 The sentencing Judge also made findings about the subjective case of the
appellant. He grew up in a family with a strong sense of family unity, but one in
which physical aggression was prevalent. The appellant married at the age of
21 and has three sons and one daughter. He has been the primary caretaker
for the children for most of their lives due to his wife’s medical conditions.

38 The appellant’s brother was murdered in April 2016, and this event had a
devastating and traumatic impact on him. After this, in addition to grieving his
brother, the offender had to deal with media exposure, the need to repay his
brother’s debts, and ostracization by his friends and work colleagues. He was
also subject to a substantial number of searches of his premises by police
whom he felt were deliberately harassing him.

39 The sentencing Judge found that the appellant’s high level of stress, anxiety
and depression following the murder of his brother, and the events thereafter,
did contribute to his decision-making when he agreed to take part in the
offence, and that his psychological state operated to reduce his moral
culpability. However, her Honour found that the extent to which his moral
culpability was reduced was limited having regard to the extent of his
criminality and the period of time that he was involved in this offence. He was
fully aware of the scope of the scheme, the substantial quantity of drugs that
were being imported into Australia and engaged in the conduct for financial
reward.

40 The sentencing Judge found that the offender had reasonable prospects of
rehabilitation. He had shown remorse. The sentencing Judge also took into
account a number of other matters which do not need elaboration here. They
are relevant to any sentence which may be imposed on the appellant, and full
consideration has been given to them.

41 The sentencing Judge noted that the appellant was subject to onerous
conditions in custody prior to sentencing, and that those onerous conditions
would continue after sentencing. He was, at the time of his sentencing,
classified as an Extremely High Security Inmate, with nothing to suggest that
 that would change in the future. Since that time, his classification has been
revised.

42 In re-sentencing the appellant, I take into account, pursuant to s 16A(2)(p) of

the Crimes Act 1914 (Cth), the adverse effect of the appellant’s incarceration
on his family and dependents. I have previously noted that the appellant has
been the primary caretaker for the children for most of their lives due to his
wife’s medical conditions. He was also the primary caretaker to his elderly
parents at the time he was arrested. The appellant’s incarceration obviously
interrupts those caretaking arrangements. Alternative arrangements have had
to have been made which were not as appropriate.

43 In addition, there is evidence which suggests that the behaviour of at least two
of the appellant’s sons has declined since his incarceration. The appellant’s
eldest brother participated in a harm prevention program following his
incarceration.

44 I am satisfied that the appellant’s incarceration has had and will have a
negative impact causing hardship on his family and dependents. I take that
matter into account on resentencing.

Parity
45 In re-sentencing the appellant, it is necessary to have careful regard to the
principle of parity.

46 When the sentencing Judge sentenced the appellant , she did so in the context
of also sentencing other participants for their role in the MDMA importation
scheme. The sentencing Judge approached the matter, carefully considering
the objective criminality of each of the offenders, together with other relevant
matters on sentence, and imposed sentences which reflected the seriousness
of the offending and the role played by the individuals in the MDMA importation
scheme and concluded that the appellant’s objective criminality and his role in
the importation was less serious than either of Mr Ibrahim or Mr Dib. She
concluded that the appellant’s criminality and role in the MDMA importation
scheme was more serious than another co-accused, Mr Fakhreddine, and was
of the same order as Mr Watsford.
47 By his written submissions supplied on 9 October 2023 in accordance with
leave, the appellant draws attention to the fact that the sentences imposed with
respect to the MDMA importation scheme upon Mr Ibrahim and Mr Dib have
been reduced as a consequence of their respectively successful appeals to the
Court of Criminal Appeal: see Ibrahim v R [2022] NSWCCA 161 and; Dib
(supra). The appellant submits that upon re-sentencing, the Court should have
regard to the principle of parity by reference to those sentences.

48 Mr Ibrahim was sentenced by way of an aggregate sentence for eight separate

charges, including one which related to the MDMA importation scheme with
which the appellant was also charged. Mr Ibrahim was charged with an offence
of conspiracy to import the commercial quantity of the MDMA. The maximum
penalty for that offence was life imprisonment. The appellant was charged with
an attempt to import a commercial quantity of MDMA. That offence also carries
a penalty of life imprisonment. For the purposes of this appeal, it is appropriate
to regard these offences as comparable.

49 Although the Court of Criminal Appeal was dealing with the aggregate
sentence which was imposed, it was necessary for it to consider the indicative
sentences for Mr Ibrahim. The sentence indicated by the sentencing Judge for
the importation of the MDMA was 21 years imprisonment after allowing a 25%
discount for the plea of guilty. That indicative sentence was one of two
indicative sentences which exceeded 20 years, and which were material
contributors to the aggregate sentence ultimately imposed.

50 Davies J (with whom Harrison and Hallen JJ agreed) noted that that sentence
was indicated after a reduction of 25% for a plea of guilty. He said at [110]:

“110 In my opinion, the undiscounted indicative sentence 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.”
51 At [115], his Honour concluded:

“115 Where the two longest indicative sentences fall outside the range for
this offending, and where the notional accumulation is unreasonable, the
aggregate sentence is plainly unjust.”
52 The Court set aside the aggregate sentence and proceeded to re-sentence
Mr Ibrahim. Insofar as is relevant, the sentence indicated by Davies J for the
 MDMA importation scheme was 18 years imprisonment. That sentence was
indicated after taking into account a 25% discount for a plea of guilty.
Accordingly, the undiscounted starting point for that indicative sentence was
24 years.

53 In light of, and consequent upon, that judgment, Mr Dib appealed to the Court
of Criminal Appeal. Mr Ibrahim was found by the sentencing Judge as more
culpable than Mr Dib. She had imposed a longer indicative sentence on Mr
Ibrahim in respect of the MDMA importation scheme.

54 Although he raised other grounds, ultimately, Mr Dib succeeded on his appeal

to the Court of Criminal Appeal on the basis that he was left with a justifiable
sense of grievance following the Court of Criminal Appeal’s decision in Ibrahim.

55 The sentencing Judge imposed a term of imprisonment of 18 years and

2 months with a non-parole period of 12 years on Mr Dib. That sentence was
imposed after a reduction of 30%. The starting point of the sentence before
that reduction was 26 years with a non-parole period of 17 years.

56 Simpson AJA (with whom Ierace J and I agreed) concluded that by reason of
the reduction in the sentence imposed on Mr Ibrahim in the Court of Criminal
Appeal, and the disparity so created, the appellant, Mr Dib, had a justifiable
sense of grievance and the appeal ought be upheld. Her Honour concluded
that the relativity between Mr Ibrahim and Mr Dib established by the sentencing
Judge should be restored. Accordingly, the Court of Criminal Appeal re-
sentenced Mr Dib to a term of imprisonment of 15 years and 7 months, with a
non-parole period of 10 years and 4 months. That was after a reduction of
30%. The undiscounted starting point for the sentence was 22 years and 3
months.

57 In this Court, the appellant accepted and did not seek to challenge any of the
findings of the sentencing Judge with respect to the relativities of those two
participants in the importation. In particular, the appellant accepted that he was
less culpable than either Mr Ibrahim or Mr Dib.

58 The appellant submitted that the Court should have regard on the question of
parity, also, to the sentence imposed on Hassan Fakhreddine – who was
 sentenced at the same time as he was for the same offence relating to the
MDMA importation scheme. The sentencing Judge, after taking into account a
discount of 20% for the plea of guilty, had sentenced Mr Fakhreddine to a term
of imprisonment of 13 years and 7 months with a non-parole period of 8 years.
The starting point, undiscounted, for that sentence was 17 years. The appellant
submitted that upon a careful analysis, there was no basis upon which the
sentence imposed on him should exceed that imposed on Mr Fakhreddine.

59 I note that as yet there has been no appeal by Mr Fakhreddine.

60 It is convenient to now set out a table by reference to the undiscounted starting

points of the sentences which were ultimately imposed and then after
successful appeal to the Court of Criminal Appeal.

Sentencing
Name Court of Criminal Appeal
Judge

Ibrahim 28 years 24 years

Dib 26 years 22 years 3 months

Ahmad 19 years

Fakhred
17 years
dine

61 I have earlier discussed the range of other matters which need to be taken into
account with respect to the re-sentencing of Mr Ahmad. In particular, I have
noted and will take into account the adverse effect on his family members of
his incarceration. He relied upon additional material available on re-sentencing.
It is unnecessary to set out all of that material in this judgment. I take it into
account in assessing the appropriate sentence to be imposed. I note that the
appellant has been well-behaved whilst in custody and that his pro-social
attitudes towards his duties and his positive engagement with staff and other
inmates have been observed over time. This has been reflected in the
reduction in his security classification. Whilst in custody in recent times the
 appellant has engaged in and completed a number of education programs.
There are indications that his rehabilitation is progressing successfully.

62 To the extent to which they have occurred, these indicators would suggest that
the need for specific deterrence in imposing this sentence is somewhat less
than it otherwise might be.

63 Nevertheless, in imposing a sentence on the appellant, it is necessary to keep

in mind the seriousness of the conduct in which he engaged, including but not
limited to the size of the importation, its complexity, the period over which it
occurred, and the planning which was necessary to give effect to it.

64 As Simpson AJA noted in Dib, it is important in light of the reductions in the

sentences in the Court of Criminal Appeal of Mr Ibrahim and Mr Dib, the lack of
an attack on the findings of objective seriousness, and the participation of both
of them in the commission of the same importation offence, to maintain as
closely as possible the relativity identified by the sentencing Judge. Precise
mathematical calculations are not necessarily appropriate as the way to
achieve this, but it is necessary to keep in mind the restoration of the relativity
imposed by the sentencing Judge who sentenced all the offenders either at the
same time or else within a short period of time thereafter. But in this appeal,
those relativities will be more favourable to the appellant because of the need
to take into account the matters set out at [61]-[62] above, and the adverse
effect on the appellant’s family by reason of his imprisonment.

65 Taking all these matters into account, in my view a sentence undiscounted for
the effects of the plea would be 15 years and 10 months. The appropriate
reduction to reflect the appellant’s plea of guilty is 20%. In those
circumstances, the appropriate sentence is 12 years and 8 months.

66 The appellant’s non-parole period was a little under 60% of the head sentence.
A similar proportion ought be maintained. This would mean that a non-parole
period of 7 years and 6 months would be the appropriate period to impose.

67 As this sentence will be less than that originally imposed upon Mr Fakhreddine
(on an undiscounted basis), the appellant’s submissions about the
appropriateness of reducing his sentence by reference to Mr Fakhreddine’s
 sentence, as imposed by the trial Judge, need no further separate
consideration on the appeal.

Summary
68 I propose the following orders:

(1) Extend time within which to seek leave to appeal to 14 February 2023.
(2) Grant leave to appeal.
(3) The sentence imposed by the District Court on 22 June 2020 be set
aside.
(4) The appellant is sentenced to imprisonment comprising a non-parole
period of 7 years and 6 months with a balance of term of 5 years and 2
months, commencing on 8 August 2017. The appellant will be first
eligible for release to parole on 7 February 2025.
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