R v Zarrinkafsh - [2005] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 136 of 2004

THE QUEEN
	v.
ALI REZA ZARRINKAFSH

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JUDGES:	VINCENT and NETTLE, JJ.A. and CUMMINS, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2005
DATE OF JUDGMENT:	3 February 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 22

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Criminal law – Sentence – Using a false document – Obtaining property by deception – Obtaining financial advantage by deception – Whether total effective and individual sentences were manifestly excessive – Whether sentencing judge erred in imposing a suspended sentence rather than a parole period – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms R. Carlin	K.Robertson, Solicitor for Public Prosecutions
For the Appellant	Mr M.J. Croucher	Victoria Legal Aid

VINCENT, J.A.:

The appellant pleaded guilty in the County Court, on 28 May 2004, to six counts of using a false document, being counts 1, 2, 3, 4, 6 and 9 on the presentment; three counts of obtaining property by deception, counts 5, 10 and 11; and two counts of attempting to obtain financial advantage by deception, counts 7 and 8.

After hearing a plea in mitigation of penalty the learned sentencing judge, on 4 June 2004, imposed the following sentences:

On each of Counts 1, 2, 3, 4, 6 and 9    - imprisonment for nine months.
On each of Counts 5, 10 and 11    - imprisonment for 15 months.
On each of Counts 7 and 8     - imprisonment for 12 months.

His Honour further directed that the period of one month of sentence imposed on each of counts 1, 2, 3, 4, 6, 7, 8, 9, 10 and 11 be served cumulatively upon each other and upon the sentence imposed on count 5. This created a total effective sentence of 25 months' imprisonment. He further ordered that the service of 12 months of that term be suspended for an operative period of three years. In addition to the standard declaration with respect to pre-sentence detention, his Honour directed that pursuant to s.5(2AB) of the Sentencing Act 1991, it be noted in the records of the court that the appellant had given an undertaking to assist the authorities. Finally he made an order pursuant to s.86 of the Sentencing Act in favour of the Australian and New Zealand Banking Group Limited in the sum of $27,500, and in favour of the Commonwealth Bank in the sum of $35,200.

Having been granted leave to do so the appellant now appeals against the sentences imposed upon him on the grounds that:

(1)The individual sentences, total effective sentence, the custodial portion of the sentence, and the operational period of the suspended sentence are all manifestly excessive in the light of:
(a)the appellant's youth and immaturity,
(b)his plea of guilty,
(c)his subordinate role in the offending,
(d)his co-operation and undertaking to give evidence for the prosecution,
(e)the delay between the commission of the offences and the appellant being sentenced.

(2)The learned sentencing judge erred in cumulating part of the sentences imposed on Counts 1,…

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 R v Zarrinkafsh

Details

AGLC: R v Zarrinkafsh [2005] VSCA 22
Case: [2005] VSCA 22
Decision Date: 3 February 2005

CaseChat Overview and Summary

The case of R v Zarrinkafsh involved the appellant, who was convicted of multiple offences, including using a false document, obtaining property by deception, and obtaining financial advantage by deception. The appellant appealed against his sentence, arguing that the total effective and individual sentences were manifestly excessive and that the sentencing judge erred in imposing a suspended sentence rather than a parole period. The appeal was heard in the Court of Appeal of the Supreme Court of the State.

The legal issues before the court were whether the sentences imposed by the sentencing judge were manifestly excessive and whether the sentencing judge erred in imposing a suspended sentence rather than a parole period. The court needed to consider the principles of sentencing and the appropriate range of sentences for the offences committed by the appellant.

The court found that the total effective sentence was not manifestly excessive, as it took into account the appellant's early guilty plea, the totality principle, and the need for general and specific deterrence. The court also held that the sentencing judge did not err in imposing a suspended sentence rather than a parole period, as the judge had considered the appropriate range of sentences and had exercised their discretion in accordance with the law. The court dismissed the appeal and upheld the sentence imposed by the sentencing judge.

The final orders of the court were that the appeal was dismissed, and the sentences imposed by the sentencing judge were upheld. The appellant was required to serve the sentences as determined by the sentencing judge.

Orders