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R v Bekhazi

R v Bekhazi

Case [2001] VSCA 178 12 October 2001

Criminal Liability

Sentencing

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 64 of 2000

THE QUEEN
	v.
MICHAEL BEKHAZI

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JUDGES:	WINNEKE, P., CHARLES and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 August 2001
DATE OF JUDGMENT:	12 October 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 178

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Criminal law – Sentence – Culpable driving causing death and reckless conduct endangering life – Appellant sentenced on both counts with order for cumulation – Whether conviction and punishment on both counts infringes common law principle of “double jeopardy” or provisions of s.51 (1) of Interpretation of Legislation Act 1984.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. P.A. Coghlan, Q.C. and Ms. K. Judd	Ms. K. Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr. S.A. Shirrefs	Galbally & O’Bryan

WINNEKE, P.:

The appellant Michael Bekhazi appeals, pursuant to leave granted, against sentences imposed upon him by the County Court on 22 March 2000. On 16 March 2000 the applicant had pleaded guilty to a presentment containing two counts:

(a)Count 1: that on 29 April 1999, by the culpable driving of a motor vehicle, he caused the death of Kathleen Hornidge in that he drove the vehicle negligently and whilst under the influence of drugs.
(b)Count 2: that on 29 April 1999, without lawful excuse, he recklessly engaged in conduct, namely the driving of a motor vehicle, that placed or may have placed Vivienne Archdall and Owen Morland in danger of death.

Count 1 alleges an offence against s.318 of the Crimes Act 1958; the particulars of culpability are those prescribed by s.s.(2)(b) and (d); whilst count 2 alleges an offence against s.22 of the same Act. Section 318 (1) creates the indictable offence of causing the death of another person by culpable driving. Sub-section (2) prescribes four particulars of “driving culpably”, including the two (namely (b) and (d)) alleged against the appellant. Section 22 makes it an offence for a person, without lawful excuse, to “recklessly engage in conduct that places or may place another person in danger of death”. Before sentence, the appellant admitted a large number of previous convictions extending over a period of 10 years which in the main were for offences of theft and burglary but which included convictions for careless and unlicensed driving and for possessing drugs of dependence.

After hearing a plea in mitigation, the judge sentenced the appellant on 22 March 2000 as follows:
Count 1:          6 years 4 months
Count 2:          2 years 8 months.
His Honour directed that eight months of the sentence imposed on count 2 be served cumulatively upon the sentence imposed on count 1.   The total effective sentence was therefore one of 7 years.   His Honour ordered 5 years of that sentence to be served before the appellant became eligible for parole.   The judge further directed that the sentence which he had imposed be served concurrently with a sentence which the appellant was then undergoing.   All licences held by the appellant were cancelled and he was disqualified from obtaining any…

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

AGLC: R v Bekhazi [2001] VSCA 178
Case: [2001] VSCA 178
Decision Date: 12 October 2001

CaseChat Overview and Summary

The appellant was convicted for causing death by dangerous driving and for engaging in reckless conduct endangering life. The court sentenced him to a term of imprisonment for each count, with an order for the sentences to run consecutively. The appellant appealed the conviction and sentence, arguing that it constituted a breach of the common law principle of double jeopardy or contravened the provisions of section 51(1) of the Interpretation of Legislation Act 1984. The court was required to determine whether the appellant's convictions and punishments for both counts were valid and whether they breached any legal principles.

The court considered the principle of double jeopardy and the provisions of section 51(1) of the Interpretation of Legislation Act 1984. The court found that the principle of double jeopardy was not breached as the two offences were not the same offence and did not stem from the same set of facts. The court also found that the provisions of section 51(1) of the Interpretation of Legislation Act 1984 were not contravened as the legislature had expressly authorised the cumulation of sentences for multiple offences. The court held that the appellant's convictions and punishments for both counts were valid and did not infringe any legal principles.

The court dismissed the appeal and upheld the convictions and sentences. The court held that the principle of double jeopardy and the provisions of section 51(1) of the Interpretation of Legislation Act 1984 were not breached in this case. The appellant's convictions and punishments for both counts were valid and did not contravene any legal principles. The court found that the appellant's actions were deserving of punishment and that the sentences imposed were appropriate. The court also found that the order for the sentences to run consecutively was justified as the appellant's actions were particularly egregious and warranted a severe punishment. The court dismissed the appeal and affirmed the convictions and sentences.

Orders