R v El Cheikh

[2004] VSCA 146

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.:

1. I ask Vincent, J.A. to deliver the first judgment.

VINCENT, J.A.: 

1. 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.

1. 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.

1. 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:

1. 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…