SUPREME COURT OF VICTORIA
COURT OF APPEAL
No.299 of 2003
| THE QUEEN |
| v. |
| FRANK EL CHEIKH |
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JUDGES: | BATT, VINCENT and EAMES, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 July 2004 | |
DATE OF JUDGMENT: | 30 July 2004 | |
MEDIUM NEUTRAL CITATION: | [2004] VSCA 146 | |
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Criminal law - Sentence - Trafficking in a drug of dependence - Whether sentencing judge failed to attribute appropriate weight to various sentencing considerations - Whether sentencing judge erred in his application of s.5(2A)(c) of the Sentencing Act 1991 - Appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr B. Kayser | Ms K. Robertson, Solicitor for Public Prosecutions |
| For the Appellant | Mr L.C. Carter | Theo Magazis & Associates |
BATT, J.A.:
I ask Vincent, J.A. to deliver the first judgment.
VINCENT, J.A.:
The appellant pleaded guilty in the County Court on 2 September 2003 to one count of trafficking in a drug of dependence, namely methylamphetamine, between 1 August 2000 and 14 September 2001.
After hearing a plea in mitigation of penalty the learned sentencing judge, on 9 October 2003, imposed a sentence of imprisonment of four years and six months in respect of which a non-parole period of three years was fixed. His Honour made other consequential orders including, by consent, a pecuniary penalty order in the sum of $107,900.
Having been granted leave to do so, the appellant appeals against the sentence imposed upon him on seven grounds:
"1.The sentence imposed in all the circumstances was manifestly excessive;
2.The learned sentencing judge erred in that insufficient weight was accorded to the plea of guilty;
3.The learned sentencing judge erred in that insufficient weight was accorded to the appellant's antecedents and prospects of rehabilitation;
4.The learned sentencing judge erred in that insufficient weight was accorded to the psychological evidence and the appellant's experiences in custody, which would render his sentence more onerous than normal;
5.The learned sentencing judge erred in fixing a non-parole period that made no proper allowance for the appellant's antecedents, personal circumstances, and prospects of rehabilitation;
6.The learned sentencing judge erred in that he gave too much weight to the principles of specific and general deterrence;
7.The learned sentencing judge erred in his application of section
5(2A)(c) of the Sentencing Act 1991 (Vic).
Particulars:
The learned sentencing judge gave incorrect meaning to the words 'benefits in excess of profit'."
The background:
During the period encompassed by the count, the appellant arranged and transacted the sale of a large number of foils of methylamphetamine with 40 regular customers and two undercover police officers in the northern suburbs of Melbourne. The kind and scale of the trafficking in which he engaged can be gauged from evidence that one quarter of a straw sample of 801 mobile telephone calls made and received by him and taken from 5,384 such calls, which were concerned with drug activities, related to street sale levels of amphetamine at a price of $200, while the remainder related to $100 sales. Two customers purchased $500 worth of amphetamine per week…
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- AGLC
- R v El Cheikh [2004] VSCA 146
- Case
- [2004] VSCA 146
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved an examination of the sentencing process and the specific application of section 5(2A)(c) of the Sentencing Act 1991. The court had to assess whether the sentencing judge had adequately weighed the mitigating and aggravating factors in determining the sentence. Additionally, the court had to consider whether the sentencing judge's interpretation and application of section 5(2A)(c) was correct. This section pertains to the objective of denunciation and the need to reflect community standards in sentencing.
The court found that the sentencing judge had appropriately considered the various factors relevant to the case, including the defendant's role in the offence and the harm caused. The court also determined that the sentencing judge had correctly applied section 5(2A)(c) of the Sentencing Act 1991. The reasoning involved a detailed analysis of the sentencing principles and the specific circumstances of the case, concluding that the sentence was proportionate and in line with the objectives of the Sentencing Act. Therefore, the appeal was dismissed, and the original sentence was upheld.
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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