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

---

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)

---

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.

---

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’.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Elkadi v The King

Details

AGLC: Elkadi v The King [2023] VSCA 328
Case: [2023] VSCA 328
Decision Date: 19 December 2023

CaseChat Overview and Summary

In the case of Elkadi v The King, the appellant, Elkadi, challenged the sentence imposed on him by the Supreme Court of Victoria for his involvement in two counts of trafficking a commercial quantity of a drug of dependence and three counts of trafficking a drug of dependence. The appellant's sophisticated involvement in a dark web enterprise was a significant factor in the court's sentencing decision. The Supreme Court sentenced the appellant to a total effective term of 12 years and 4 months’ imprisonment, with a non-parole period of 7 years and 4 months. The appellant argued that this sentence was manifestly excessive, given the powerful evidence of his rehabilitation and his relevant prior convictions.

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