| 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…
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- AGLC
- Mallahie v The King [2025] VSCA 196
- Case
- [2025] VSCA 196
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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