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Gayed v the Queen

Gayed v the Queen

Case [2021] VSCA 141 25 May 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0008

MENA GAYED	Appellant/Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2021
DATE OF JUDGMENT:	25 May 2021
MEDIUM NEUTRAL CITATION	[2021] VSCA 141
JUDGMENT APPEALED FROM:	[2019] VCC 2174 (Judge Gucciardo)

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CRIMINAL LAW – Appeal – Sentence – Trafficking in a drug of dependence in a commercial quantity – Manifest excess – Sentence of seven years’ imprisonment with non-parole period of four years and six months for commercial quantity trafficking not manifestly excessive – Individualised justice – Need to balance sentencing considerations – Role of current sentencing practices in sentencing exercise – Consideration of ‘uplifting’ sentencing practices not a controlling factor in sentencing exercise – Proper application of Gregory v The Queen in light of DPP v Dalgliesh – Finding as to appellant’s role in trafficking enterprise in absence of evidence – Whether open to find appellant was principal in trafficking enterprise where no positive evidence but absence of evidence of involvement of others – Gregory v The Queen (2017) 268 A Crim R 1, DPP v Dalgliesh (2017) 262 CLR 428, Lytras v The Queen [2020] VSCA 150, Roxburgh v The Queen [2020] VSCA 228, DPP v Condo [2019] VSCA 181 considered; Drugs, Poisons and Controlled Substances Act 1981 s 71AA, Sentencing Act 1991 s 5(2) – Leave to appeal refused – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Applicant	Mr D I Mence	Papa Hughes Lawyers
For the Respondent	Mr J C J McWilliams	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA:

The appellant[1] was convicted by a jury in the County Court of trafficking in a drug of dependence, 1,4-butanediol (‘BTD’), in not less than a commercial quantity.[2]
[1]Whilst Mena Gayed is the applicant in relation to grounds 1 and 2 and the appellant in ground 3, for convenience we shall refer to him as the ‘appellant’ throughout these reasons.
[2]Contrary to the Drugs, Poisons and Controlled Substances Act 1981 s 71AA (‘Drugs, Poisons and Controlled Substances Act’).

BTD is an industrial solvent which, when ingested, metabolises into GHB. GHB is an illegal drug sometimes used as a ‘party drug’ in the dance and club scene. A commercial quantity of BTD is two kilograms and above.[3] It was undisputed that the appellant possessed approximately 279 kilograms of BTD. The maximum penalty for this offence is 25 years’ imprisonment.
[3]Ibid sch 11 pt 3.

The appellant was sentenced to seven years’ imprisonment with a non-parole period of four years and six months. Pre-sentence detention of 169 days was declared.

On 7 May 2021, the appellant was granted leave to appeal on one ground, of manifest excess, and refused leave on a ground that alleged that the judge had erred in concluding that the appellant was a principal in the drug enterprise (the ‘role ground’). Undeterred, the appellant now seeks to re-litigate the role ground…

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 Gayed v the Queen

Details

AGLC: Gayed v The Queen [2021] VSCA 141
Case: [2021] VSCA 141
Decision Date: 25 May 2021

CaseChat Overview and Summary

The appeal in Gayed v The Queen was heard by the Supreme Court of Victoria, where the appellant contested the sentence imposed for trafficking in a drug of dependence in a commercial quantity. The appellant was sentenced to seven years in prison with a non-parole period of four years and six months, which he deemed manifestly excessive. The court had to determine whether the sentence was appropriate given the nature of the offence and the principles of individualised justice.

The primary legal issues centred on whether the sentence imposed was manifestly excessive and whether the court correctly applied the principles of individualised justice and current sentencing practices. The court needed to balance the sentencing considerations, particularly in light of the appellant's role in the trafficking enterprise, which was not definitively established. The court also had to consider how the principles from cases such as Gregory v The Queen and DPP v Dalgliesh applied to the sentencing process.

The Supreme Court of Victoria found that the sentence was not manifestly excessive. The court held that in determining the appellant’s role in the trafficking enterprise, it was not necessary to have positive evidence of his involvement; rather, the absence of evidence regarding others' involvement was sufficient to infer his role. The court emphasised that the sentencing exercise required a balance of individualised justice and current sentencing practices, and that the principles from Gregory v The Queen and DPP v Dalgliesh were appropriately applied. Given these considerations, the appeal was dismissed, and leave to appeal was refused.

The court's decision underscored the importance of a balanced approach to sentencing in commercial drug trafficking cases, ensuring that the principles of individualised justice are upheld while also considering the broader sentencing framework.

Orders