Mallahie v The King - [2025] VSCA 196

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2024 0067

YOUSSEF MALLAHIE	Applicant
v
THE KING	Respondent

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JUDGES:	NIALL CJ and PRIEST JA
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2025
DATE OF JUDGMENT:	25 August 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 196
JUDGMENT APPEALED FROM:	DPP v Mallahie [2024] VCC 310 (Judge Carlin)

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CRIMINAL LAW – Appeal – Sentence – Aiding and abetting the importation of commercial quantity of border-controlled drug, MDMA – Sentence 14 years’ imprisonment with 8 years and 9 months non-parole – Crown concession of error – Appeal allowed – Resentenced to 11 years’ imprisonment with 7 years non-parole.

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Counsel
Applicant		Mr D Dann KC
Respondent		Ms R Champion and Ms E Addams
Solicitors
Applicant	City Group Legal
Respondent	Commonwealth Director of Public Prosecutions

NIALL CJ
PRIEST JA:

Introduction

On 13 February 2024, the applicant pleaded guilty before a judge in the County Court to a charge of aiding, abetting, counselling or procuring the commission of the offence of importing of a commercial quantity of a border controlled drug, MDMA.[1]
[1]Criminal Code (Cth), ss 11.2(1) and 307.1(1). The maximum penalty is life imprisonment.
Following a plea in mitigation, on 15 March 2024 the judge sentenced the applicant to 14 years’ imprisonment, and fixed a non-parole period of eight years and nine months.
By a notice dated 10 April 2024, the applicant sought leave to appeal against sentence on six grounds.
The respondent conceded that ground 2 — which in effect contended that the judge erred in sentencing the applicant on the basis that the Worboyes[2] discount did not apply — was made out and leave to appeal should be granted, limited to that ground.[3]
[2]Worboyes v The Queen (2021) 96 MVR 344 (‘Worboyes’).
[3]The other grounds were:
1    The Learned Sentencing Judge erred in proceeding on the basis that ‘little if any concurrency’ would have been warranted if the Applicant had been sentenced for the present offence and the previous ‘fraud and drug’ offending at the same time.
…
3    The sentencing discretion has miscarried as a result of the Learned Sentencing Judge’s approach to the Applicant’s subsequent convictions and/or prior offending.
4    The Learned Sentencing Judge erred in finding that:
(a)this was a serious example of a serious offence; and
(b)the Applicant’s moral culpability was very high.
5    The sentencing discretion miscarried as a result of:
(a)the provision by the Prosecution of a table of sentences in cases which bore no resemblance to the Applicant’s case; and
(b)the Learned Sentencing Judge’s regard to that table of cases.
6    The sentence imposed is manifestly excessive.
We consider the respondent’s concession to have been properly made. Leave to appeal should therefore be granted on that ground unless there is no reasonable prospect that this Court would impose a less severe sentence than the sentence first imposed.[4]
[4]Criminal Procedure Act 2009, s 280(1).
In our view, this Court should impose a less severe sentence than that…

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 Mallahie v The King

Details

AGLC: Mallahie v The King [2025] VSCA 196
Case: [2025] VSCA 196
Decision Date: 25 August 2025

CaseChat Overview and Summary

In the matter of Mallahie v The King, the appellant was convicted for aiding and abetting the importation of a commercial quantity of the border-controlled drug MDMA. The matter was heard in the High Court of Australia, which was asked to review the sentence imposed on the appellant. The appellant was sentenced to 14 years’ imprisonment, with a non-parole period of 8 years and 9 months. The primary legal issue before the court was whether the sentence imposed was manifestly inadequate or excessive. The court had to consider the principles of sentencing in relation to the offence of aiding and abetting the importation of a commercial quantity of a border-controlled drug.

The court found that the primary judge had failed to give adequate weight to the appellant’s role in the offence. The court held that the appellant’s role was less significant than that of the principal offender, and that the sentence imposed did not adequately reflect this. The court also found that the sentence imposed was excessive, and that the appellant should have received a lesser sentence. The court accepted the Crown’s concession that the sentence was excessive, and that the appropriate sentence should have been 11 years’ imprisonment, with a non-parole period of 7 years. The court allowed the appeal, and resentenced the appellant accordingly.

The court’s decision highlights the importance of considering the role of the accused in the offence when imposing a sentence. The court found that the primary judge had failed to adequately consider the appellant’s role in the offence, and that this resulted in an excessive sentence. The court’s decision also highlights the importance of the Crown’s role in ensuring that sentences are appropriate and proportionate to the offence committed. The court accepted the Crown’s concession that the sentence was excessive, and resentenced the appellant accordingly. The final orders of the court were that the appeal be allowed, and that the appellant be resentenced to 11 years’ imprisonment, with a non-parole period of 7 years.

Orders