SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2019 0226
| MAJED AL-DIMACHKI | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | BEACH and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 14 April 2021 |
| DATE OF JUDGMENT: | 21 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 98 |
| JUDGMENT APPEALED FROM: | [2019] VCC 1708 (Judge Brimer) |
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CRIMINAL LAW – Appeal – Sentence – Trafficking in commercial quantity of drug – Whether judge erred by not taking into account portions of summary of prosecution opening deleted by agreement between prosecution and co-accused – No relevant error shown – Excised paragraphs not probative of accused’s role – Parity – Whether insufficient differential between sentences on common trafficking charge or between total effective sentences – Co-accused’s ‘rolled up’ trafficking charge included trafficking of another drug – Differential of 12 months on trafficking sentences and 10 months on total effective sentences reasonably open – Numerically modest differential more significant given modest sentences imposed – Roe v The Queen [2021] VSCA 54, applied – Whether misapplication of totality principle – No misapplication shown – Appeal dismissed – Sentencing Act 1991 ss 6B, 6E.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Dr M Fitzgerald | Doogue & George |
| For the Respondent | Ms D Piekusis QC with Mr L Fluxman | Ms A Hogan, Solicitor for Public Prosecutions |
BEACH JA
McLEISH JA:
On 17 October 2019, after pleas of guilty, the applicant and his co-accused, Ashley Atkinson, were sentenced by a judge of the County Court to be imprisoned on a number of drug-related and other offences. The applicant and Ms Atkinson were living together and in a relationship at the time of the offences. However, with limited exceptions, the offending with which each was charged was different. The applicant was sentenced to be imprisoned for 4 years and 8 months with a non-parole period of 2 years and 10 months as follows:
Charge on Indictment C1801269.2 Offence Maximum Sentence Cumulation 1
Obtaining property by deception
10 years
1 month
–
2
Handling stolen goods
15 years
2 months
2 months
3
Possession of a drug of dependence (methylamphetamine)
1 year
2 months
–
5
Possession of a drug of dependence (testosterone, oxycodone, methylamphetamine and MDMA)
5 years
12 months
2 months
7
Trafficking in a drug of dependence — commercial quantity (1,4-butanediol)
25 years
4 years and 2 months
Base
12
Negligently dealing with proceeds of crime
5 years
12 months
2 months
Related summary offence 13
Dealing with property suspected to be proceeds of crime
2 years
2 months
–
Total Effective Sentence
4 years and 8 months’ imprisonment
Non-Parole Period
2 years and 10 months’ imprisonment
Pre-Sentence Detention Declared
87 days
Section 6AAA Statement
6 years and 6 months’ imprisonment
Ancillary orders
Forfeiture and disposal orders; sentenced as a serious drug offender in respect of charge 7.
Ms Atkinson was sentenced to be imprisoned for a term of 5 years and 6 months with a non-parole period of 3 years and 2 months, as follows:
Charge on…
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- Case
- [2021] VSCA 98
- Decision Date
CaseChat Overview and Summary
The court examined whether the judge's failure to consider the excised portions of the prosecution opening summary constituted an error. It was found that the deleted paragraphs were not probative of Al-Dimachki’s role in the trafficking activities, and therefore, no relevant error was shown. The court also considered whether the sentences imposed were in parity with each other and with sentences imposed on co-accused. It was concluded that the differential of 12 months on the trafficking sentences and 10 months on the total effective sentences was reasonably open on the facts of the case. The modest numerical difference was deemed significant given the relatively short sentences imposed.
The court further assessed whether there was a misapplication of the totality principle. It was determined that no such misapplication occurred, as the sentences reflected the seriousness of the offences and took into account the totality of Al-Dimachki's offending. Applying the principles from Roe v The Queen [2021] VSCA 54, the appeal was dismissed. The court upheld the sentences imposed by the trial judge, finding that they were proportionate and appropriately reflected the offending conduct.
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