Majed Al-Dimachki v The Queen - [2021] VSCA 98

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…

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.

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Details

Case: [2021] VSCA 98
Decision Date: 21 April 2021

CaseChat Overview and Summary

In the case of Majed Al-Dimachki v The Queen, the appellant, Majed Al-Dimachki, appealed against his sentence for trafficking in a commercial quantity of a drug. The case was heard in the Victorian Court of Appeal, presided over by Justices The Honourable Justices Byrne, Maxwell and Cronin. Al-Dimachki argued that the trial judge erred by not taking into account certain portions of the prosecution opening summary that had been deleted by agreement between the prosecution and a co-accused. Additionally, he contended that the sentences imposed were disproportionate, both in terms of the individual trafficking charge and the total effective sentences.

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.

Orders