Elkadi v The King

[2023] VSCA 328

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2022 0128

MUHAMED ELKADI	Applicant
v
THE KING	Respondent

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JUDGES:	MACAULAY and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October and 29 November 2023
DATE OF JUDGMENT:	19 December 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 328
JUDGMENT APPEALED FROM:	DPP v Elkhadi [2022] VCC 1597 (Judge Hogan)

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CRIMINAL LAW – Appeal – Sentence – Two counts of trafficking a commercial quantity of drug of dependence – Three counts of trafficking drug of dependence – Sophisticated dark web enterprise – Relevant prior convictions – Powerful evidence of rehabilitation – Total effective sentence of 12 years and 4 months’ imprisonment with non-parole period of 7 years and 4 months – Whether sentence manifestly excessive – Leave to appeal refused.

Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1; Lieu v The Queen (2016) 263 A Crim R 173 referred to.

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Counsel
Applicants:		Mr DA Dann KC
Respondent/s:		Ms DI Piekusis KC
Solicitors
Applicants:	Melasecca Kelly & Zayler
Respondent/s:	Ms A Hogan, Solicitor for Public Prosecutions

MACAULAY JA
TAYLOR JA:

Introduction and overview

1. On 29 October 2021 the applicant pleaded guilty to charges of trafficking a drug of dependence (commercial quantity), knowingly deal with proceeds of crime, fail to comply with an order to assist police and a related summary offence.

2. Following plea hearings on 29 October 2021, 9 February 2022 and 22 April 2022, the applicant was sentenced on 22 April 2022 as follows:

Charge on Indictment	Offence	Max Penalty	Sentence	Cumulation
1	Trafficking a drug of dependence — commercial quantity	25 years	7 years and 6 months	Base
2	Trafficking a drug of dependence — commercial quantity	25 years	6 years	2 years
3	Trafficking a drug of dependence	15 years	3 years	1 year
4	Trafficking a drug of dependence	15 years	3 years and 6 months	1 year
5	Trafficking a drug of dependence	15 years	2 years	9 months
6	(Knowingly) deal with proceeds of crime	15 years	6 months	1 month
7	Fail to comply with an order made pursuant to s 465AA of the Crimes Act 1958	5 years	Fined $500	N/A
Related Summary Offences
11	Possess prohibited weapon without exemption or approval	2 years	Convicted and discharged	N/A
Total Effective Sentence:		12 years and 4 months’ imprisonment $500 fine
Non-Parole Period:		7 years and 4 months
Pre-sentence Detention Declared:		300 days
Section 6AAA Statement:		15 years and 6 months’ imprisonment with a non-parole period of 11 years
Other Relevant Orders: 1. Sentenced as a serious drug offender on charge 2 pursuant to s 6F of the Sentencing Act 1991. 2.   Forfeiture and disposal orders.

Grounds of Appeal

1. The applicant seeks leave to appeal against sentence on the ground that the sentence imposed on him was manifestly excessive.

2. For the reasons that follow, leave to appeal should be refused.

   Summary of offending

3. The applicant was one of three people involved in a ‘dark net’[1] drug trafficking syndicate styled ‘MercuryXPR’. It sold drugs on a cyber market place called ‘Empire Market’ by taking orders for different types and quantities of drugs, and distributing them largely using Australia Post.

   [1]The dark net is an overlay network within the internet that can only be accessed with specific software, configurations or authorisation and often uses a unique customised communication protocol.

4. MercuryXPR’s IT operations were controlled from Canada by Noah Jackson. Leyna Thai was responsible for customer service. The applicant was responsible for delivering drugs and, together with Thai, was also responsible for the packaging of drugs. Jackson and the applicant each earned $5,000 per week for their role. Thai earned $800 per week plus an occasional $1,000 bonus.

5. The web profile of MercuryXPR boasted a 98.58 per cent market positive feedback. The website promised the highest calibre products and a team dedicated to customer satisfaction, rapid delivery and response. Same day shipping was assured if orders were received prior to 1:00 pm. The website also featured MercuryXPR’s terms of business, privacy, customer complaint and resolution policies and FAQs, as well as delivery/shipping details including the option of dead drops and warnings of increased scrutiny of Express Post items during ‘schoolies’ periods. Products for sale were depicted in thumbnail images with the MercuryXPR logo in the background and prices quoted in USD. They included methylamphetamine, China white heroin, Bolivian Fishscale cocaine and MDMA moonrocks.

6. After a seven day surveillance operation conducted by police, the applicant was arrested on 12 December 2019. His laptop was seized. On it police recovered a spreadsheet showing that between 24 June and 28 August 2019 the applicant posted 964 regular and express post items from various street post boxes across Melbourne, 149 of which were matched and linked to drug trafficking. The total revenue was $262,710. The five trafficking charges were as follows:

   ·1.40245 kg of methylamphetamine between 24 June and 12 December 2019 (charge 1).

   ·998.15 g of MDMA as well as 197 tablets between 24 June and 12 December 2019 (charge 2).

   ·204.85 g of cocaine between 9 July and 12 December 2019 (charge 3).

   ·222.3 g of heroin between 24 July and 12 December 2019 (charge 4).

   ·13.1 kg of cannabis between 22 October and 12 December 2019 (charge 5).

7. Police executed warrants on the applicant’s vehicle, home address in Hillside and a property in Cairnlea where he was the listed tenant. They seized drugs of dependence in varying amounts, drug paraphernalia, large amounts of cash, numerous electronic devices and express post envelopes.

8. At the time of his arrest the applicant had $800 cash in his pocket, $15,000 cash in the boot of his car and $8,777 cash in a money box at the Hillside property (charge 6). He also had possession of a black taser in the Hillside property (charge 11).

9. The applicant gave a ‘no comment’ interview and refused to provide the PIN for his mobile phone (charge 7).

Sentencing Reasons

1. The judge commenced her Reasons by noting the maximum penalties of the offences to which the applicant had pleaded guilty[2] before summarising the offending.[3] The high gravity of the applicant’s offending —  well above the mid-category of seriousness[4] —   was summarised in the following manner:

   It is disturbing that this pernicious trade in illicit drugs, which does so much harm in our society, has become more clandestine than previously by persons, like yourself, utilising the dark net, making detection by law enforcement authorities even more difficult. The manner in which the syndicate operated on the internet is one which could only be accessed with specific software configurations or authorisation, and often used a unique customised communication protocol. This was a highly organised and sophisticated selling operation, involving five different drugs and offending on the two most serious charges over a period of six months involving very significant quantities of drugs. The fact that over a quarter of a million dollars of revenue was made from transactions over the two-month period from 24 June to 28 August 2019 is an indication of the significant profit to be made from this evil trade. The amounts of drugs distributed in this time are also indicative of the harm to our society, and you played a crucial role in that harm. You received orders via the Dark Web and packed and delivered them.[5]

   [2]DPP v Elkhadi [2022] VCC 1597, [1] (‘Reasons’).

   [3]Reasons, [2]–[16].

   [4]Reasons, [58].

   [5]Reasons, [17].

2. The judge noted the extent to which the applicant went to conceal his offending[6] and the extent of incriminating material on various electronic devices.[7]

   [6]Reasons, [18].

   [7]Reasons, [19]–[20].

3. Turning to the applicant’s personal circumstances, the judge noted the applicant to be 40 years of age. Disregarding an irrelevant finding of guilt from 2003, the judge detailed the applicant’s prior criminal history for drug offences. In March 2016 he was convicted of trafficking methylamphetamine as well as cannabis, possessing a variety of drugs and dealing with property suspected of being the proceeds of crime, as well as other offences. He was sentenced to a 24-month Community Correction Order (‘CCO’). The applicant breached the CCO by committing further drug and other offences. In September 2016 he was sentenced for the new offences and re-sentenced on the original offences and received a total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months. The judge noted that the applicant had completed his VCE and began, but did not finish, university. The applicant subsequently held managerial positions with a labour hire company, but lost that employment in 2015, at which time his three-year marriage ended in divorce. His drug use, which had been ongoing since the age of 15, escalated. When released from prison on parole in 2017, the applicant did some sporadic work but relapsed into methylamphetamine and heroin use, still extant at the time of the 2019 offending.[8]

   [8]Reasons, [22]–[24].

4. Following the applicant’s release on bail in April 2020, he made changes in his life. He reconnected with his family, obtained full-time employment and completed Certificate VI courses in mental health fields. He established an organisation which delivered emergency food relief to persons affected by COVID-19 and fulfilled requests for food packages for a variety of charities including the Salvation Army and Melbourne City Mission. That organisation had 300 volunteers. The applicant established a second not-for-profit organisation to support persons from particular cultural backgrounds over-represented in the criminal justice system. The applicant also obtained private psychological counselling with respect to his drug issues. He has assisted with the care of his seriously ill mother, remarried and returned to his faith.[9]

   [9]Reasons, [25]–[32].

5. The judge referred to various references and materials tendered, including an experienced drug and alcohol counsellor who described the applicant as ‘a textbook example of what rehabilitation looks like’.[10] Reference was then made to reports authored by Dr Nicole Moriarty, a clinical psychologist, and Dr Michael Maloney, a consultant psychiatrist. The judge found those reports to be inadequate in detailing the conditions diagnosed and was not satisfied on the balance of probabilities that the applicant’s drug use was of such a high level as to be a serious or debilitating addiction.[11] The judge was satisfied beyond reasonable doubt that his offending was ‘very considerably motivated by greed’, even though he may have been a drug user.[12]

   [10]Reasons, [33]–[36].

   [11]Reasons, [37]–[41].

   [12]Reasons, [42]–[50].

6. After noting the applicant’s intelligence and ‘significant capacity and skills’, the judge stated that he used those attributes to earn money illegally and at great detriment to the community. He was not deterred from drug trafficking by his earlier sentence and the instant offending represented a significant escalation in criminal activity. It involved a well-planned and very sophisticated business model.[13]

   [13]Reasons, [50]–[52].

7. Accordingly, the offending warranted a very significant term of imprisonment to denounce the conduct and emphasise general deterrence. The judge found that community protection was also a relevant sentencing factor, but accepted that specific deterrence was of lesser moment given the evidence of the considerable steps the applicant had taken to reset his moral compass.[14] The applicant’s early plea was considered by the judge and given extra utilitarian weight due to its timing during the COVID-19 pandemic. The judge accepted the applicant to be genuinely remorseful and motivated to ‘pay back’ the community through his charity work.[15]

   [14]Reasons, [53]–[54].

   [15]Reasons, [55].

8. The judge took into account that the applicant had been diagnosed with anxiety, which would add a level of burden to his period of incarceration and the added burden of custodial restrictions consequent upon the pandemic.[16]

   [16]Reasons, [56]–[57].

9. The judge found the offending to be ‘very well above’ the mid-category of seriousness and noted the need to uplift sentences for the upper category of commercial quantity drug trafficking offences.[17] Section 5(2H) of the Sentencing Act 1991 required the imposition of a sentence of imprisonment on charges 1 and 2, being Category 2 offences. The applicant also fell to be sentenced as a serious drug offender on charge 2 pursuant to s 6B of that Act. The judge did not consider it necessary to impose a sentence longer than that which would be proportionate to the gravity of the offence and did not consider total cumulation appropriate. Regard was had to the principle of totality.[18]

   [17]Reasons, [58]–[61]. Gregory (a pseudonym) v The Queen (2017) 268 A Crim R 1; [2017] VSCA 151 (‘Gregory’).

   [18]Reasons, [64]–[65].

Manifest excess

Applicant’s contentions

1. The applicant acknowledges that his offending would, ordinarily, attract a sentence in the order of that imposed by the judge given its seriousness, sophistication and motivation and his relevant prior convictions.  Nonetheless, the applicant contends that the collection of matters in mitigation were ‘quite exceptional’ such that the sentence imposed is, in all the circumstances, manifestly excessive.

2. The ‘collection of matters’ are argued to be:

   (a)His plea of guilty: its timing and utilitarian value, including the Worboyes[19] consideration.

   (b)True remorse.

   (c)Exceptional efforts towards rehabilitation including the completion of a number of courses and the establishment of two charitable organisations.

   (d)A demonstrated commitment to overcoming his drug problem and addressing his mental health.

   (e)His marriage and reconnection with his immediate family, including caring for his ailing mother.

   [19]Worboyes v The Queen (2021) 96 MVR 344; [2021] VSCA 169.

3. The applicant submits that his rehabilitative progress meant that there was less need for emphasis on general deterrence. His anxiety invoked the unfairness limb of delay and meant he faced an increased burden of imprisonment. The applicant further argues the Markovic[20] consideration was significant in light of his mother’s health.

   [20]Markovic v The Queen (2010) 30 VR 589; [2010] VSCA 105.

4. Finally the applicant submits that in light of these matters, his sentence was crushing. The individual sentences imposed and the orders for cumulation were not sufficiently moderated by the principle of totality.

Respondent’s contentions

1. The respondent emphasises the high objective gravity of the offending, including its sophisticated nature, the amount of drugs trafficked and the revenue generated. It was motivated by greed. The applicant also fell to be sentenced as someone with a very relevant prior history. The matters in mitigation identified by the applicant were clearly considered by the judge. They did not combine to produce a situation where general deterrence was of lesser moment.

2. The respondent submits that the individual sentences imposed appropriately reflected the criminality of each offence and the modest orders for cumulation reflected the correct application of the totality principle.

Discussion

1. Manifest excess of a sentence is a conclusion. Such a ground will succeed only if the applicant can demonstrate that something must have gone obviously, plainly or badly wrong in the exercise of the sentencing discretion.[21] The question is not whether the judge imposed the correct sentence, there being no single correct sentence. Rather, the question is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[22]

   [21]Ayol v The Queen [2014] VSCA 151, [30] (Maxwell P), citing Clarkson v The Queen (2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.

   [22]R v Abbott (2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.

2. In this case it is not.

3. The applicant was a principal in a highly sophisticated, commercial enterprise to sell ‘high calibre’ drugs of multiple sorts, cognisant of customer satisfaction, rapid response times and financial targets, and using the dark web and the ‘Mercury XPR’ username to avoid detection. The applicant also used crypto currency, a Tor browser and WhatsApp to conceal his activities, as well as used different post boxes and dead drops. His motivation was profit and the enterprise was indeed profitable. Analysis of the spreadsheet showed that during 66 days the applicant sent 964 postal items. 149 of those were seized. As reflected in charges 1 to 5, they contained significant amounts of drugs and represented a combined revenue of $262,710.

4. There are many factors relevant to the determination of the seriousness of any particular example of the offence of trafficking a commercial (or large commercial) quantity of drugs. These include the role of the offender, his or her position in the enterprise, the nature and extent of his or her involvement and the amount of drugs involved.[23] The latter is a highly relevant consideration and, other things being equal, the greater the quantity trafficked the more serious the offence.[24] The methylamphetamine relevant to charge 1 was well in excess of the commercial quantity threshold. The MDMA relevant to charge 2 was nearly double the commercial quantity threshold.

   [23]Lieu v The Queen (2016) 263 A Crim R 173, [41] (Beach and Kaye JJA); [2016] VSCA 277 (‘Lieu’).

   [24]Gregory 268 A Crim R 1, [23]; [2017] VSCA 151.

5. There can be no doubt that the applicant’s offending was grave.

6. He also had significant and relevant prior convictions. Furthermore, it is to be noted that a sentence of imprisonment for drug trafficking did not deter him from further, similar offending. It occurred just over one year after his sentence had expired and represents a considerable escalation in his criminal behaviour.

7. General deterrence and denunciation assume great importance in sentencing for significant drug trafficking. Like the applicant, people are attracted to the promise of large profits, caring little for the societal harm occasioned by the use of illicit drugs. It must be clear that anyone embarking upon a drug trafficking enterprise of this nature will, if detected, be sentenced to a lengthy term of imprisonment.

8. Further, it is to be recalled that the applicant fell to be sentenced as a serious drug offender with respect to charge 2, elevating protection of the community to the principal sentencing consideration.

9. Turning to the applicant’s ‘collection of matters’ in mitigation, it is clear that the judge considered and gave appropriate weight to them individually and as a combined force. In particular, the judge recorded, at some length, the steps the applicant had taken towards rehabilitation and commended his desire to ‘pay back’ the community through the establishment of two charitable organisations. The judge specifically recorded that specific deterrence was accorded lesser weight. The applicant’s efforts towards rehabilitation are noteworthy, but in combination with the other matters advanced on his behalf do not, when weighed against the objective gravity of the offending and his moral culpability, establish that the sentence is manifestly excessive.

1. Finally, notwithstanding the temporal overlap of the charges, the individual sentences imposed reflect the sophisticated and expansive nature of the applicant’s enterprise and the number of different drugs offered for sale. The orders for cumulation were modest and the total effective sentence is not, in all the circumstances, crushing.

2. In short, the sentence imposed falls wholly within the sound exercise of the judge’s sentencing discretion.

Conclusion

1. Leave to appeal against sentence must be refused.

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