| 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
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.
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
The applicant seeks leave to appeal against sentence on the ground that the sentence imposed on him was manifestly excessive.
For the reasons that follow, leave to appeal should be refused.
Summary of offending
The applicant was one of three people involved in a ‘dark net’[1] drug trafficking syndicate styled ‘MercuryXPR’.…
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- AGLC
- Elkadi v The King [2023] VSCA 328
- Case
- [2023] VSCA 328
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the sentence was manifestly excessive. The appellant argued that the sentence was disproportionate given his age, the powerful evidence of his rehabilitation, and his prior criminal history. The court was required to consider the principles of proportionality, deterrence, and rehabilitation in determining the appropriate sentence. The court also had to consider the impact of the appellant's sophisticated involvement in the dark web enterprise on the seriousness of his offending.
The court found that the sentence was not manifestly excessive. The court noted that the appellant's involvement in a sophisticated dark web enterprise was a significant factor in the seriousness of his offending. The court also found that the appellant's age and evidence of rehabilitation were mitigating factors, but they did not outweigh the seriousness of his offending. The court considered the need for general and specific deterrence and concluded that the sentence was appropriate. The court also noted that the sentence reflected the seriousness of the offending and was proportionate to the appellant's offending.
No leave to appeal was granted.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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