BACKGROUND
A former Sydney Criminal Lawyer and brother to John Ibrahim has pled guilty to offences relating to drug and tobacco importation. Michael Ibrahim argued yesterday that he was entrapped by undercover police. The Court heard that he was in fact ‘less culpable’ and therefore should be afforded leniency due to the police conduct and their infiltration of his network.
Michael had pled guilty to his involvement in two syndicates in which he attempted to import 1797 kilograms of MDMA, 136kg of Cocaine and 15kg of methylphenidate (ICE). Subsequently was arrested in Dubai in 2017 along with several other members of his alleged group.
During the sentence hearing before Judge Dina Yehia, Senior Counsel Bret Walker stated that members of this group were introduced to the police officer that had offered them a “door” to this offence. Mr Walker further stated
“This was not an undercover operation whereby an undercover operative engages by way of ancillary activities and evidence gathering in the activities of a group already intent on and planning for this kind of operation,”.
The Crown Prosecutor had argued that Ibrahim was the “glue” and a “linchpin” of this syndicate and the overseas criminal gangs who were attempting to import the drugs.
THE LAW
The term “import” is defined in the Criminal Code as importing a substance into Australia and includes bringing the substance into Australia; and dealing with the substance in connection with its importation. This is a new definition which was inserted into the Commonwealth Criminal Code in January 2011 following the decision of Campbell v Regina (2008) 73 NSWLR 272.
Regulation 307.3 of the Criminal Code states the following:
“A person commits an offence if: (a) the person imports or exports a substance; and (b) the substance is a border-controlled drug or border-controlled plant.”
WHAT MUST THE PROSECUTION PROVE?
Drug importation/exportation offence is a criminal offence. This means that the burden of proof lies on the Prosecution.
The prosecution must prove each of the elements in the charge beyond reasonable doubt.
That is a high standard of proof that the prosecution must achieve before someone can be convicted of Drug importation/exportation.
To establish Drug importation/exportation, the prosecution must prove the following elements:
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- The substance imported is a border-controlled drug, and the person was reckless as to that fact;
- The quantity was above the commercial or marketable quantity, as the case may be; and
- That a person imported a substance into Australia, and imported that substance intentionally.
DEFENCE ARGUED BY THE DEFENDANT
The argument raised by the defendant was the possibility of entrapment. Broadly defined, entrapment is where a law enforcement agent (e.g. police officer) has improperly induced any person to commit an offence. This will usually involve illegal activity by the agent, which was evident in the case of Michael Ibrahim.
There is no legislative defence available to any person in Australia. Although in the America jurisdiction, the case of Sherman v United States draws a line between the trapping of an innocent person and criminal.
The leading case in Australia that remotely discusses the possibility of entrapment as a defence was highlighted in Ridgeway v The Queen. In this matter, the offender was charged for the importation of 140.4 grams of heroin. Similarly, Michael Ibrahim used his connections overseas to obtain and import the heroin from Malaysia. The High Court considered this as a matter of public policy and exercised its discretion to exclude any evidence that was brought about by the unlawful conduct of the law enforcement agents. This was to discourage the actions committed by the law enforcement and preserve the integrity of the administration of justice.
The outcome of the case had set precedent to not allow such conduct by police officers and will inevitably lead to the exclusion of evidence that arises from the illegal conduct.
WHAT CAN YOU DO IF YOU HAVE BEEN CHARGED WITH DRUG IMPORTATION?
National Criminal Lawyers are one of the best Drug Lawyers Sydney and greater Sydney have to offer. We have been successful in defending a number of Drug importation/exportation charges where the prosecution could not establish each of the elements of Drug importation/exportation.
Click here to read our most updated stories regarding drug importation.
NCL offer the following options for those who have been charged with Drug importation/exportation;
- We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
- NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
- Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
- Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.
Call our office and speak to one our criminal law specialists who will provide you with a free appointment and can help you understand the process, explore possible defences, discuss proven legal strategies and understand what the possible outcomes may be for your matter.