Legal Research
Cases
R v Zaydan

R v Zaydan

Case [2004] VSCA 245 21 December 2004

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN
THE QUEEN	No.104 of 2003
v.
YAHYA ZAYDAN
THE QUEEN
THE QUEEN	No.105 of 2003
v.
JOHN DAVID BAVA
THE QUEEN
THE QUEEN	No.94 of 2003
v.
ALEXANDER YANG SU
THE QUEEN
THE QUEEN	No.98 of 2003
v.
VICTOR BELIKOV
THE QUEEN
THE QUEEN	No. 340 of 2003
v.
ALEXANDER YANG SU

---

JUDGES:	BATT, VINCENT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	26 and 27 July 2004
DATE OF ORDER: (BELIKOV) DATE OF JUDGMENT:	21 September 2004 21 December 2004
MEDIUM NEUTRAL CITATION:	[2004] VSCA 245	First Revision: 22 February 2005

---

CRIMINAL LAW – Sentencing – Various drug offences by four offenders – Kidnapping and perverting course of justice by one of them – Whether sentences manifestly excessive or crushing or infringed totality or parity – Whether general deterrence to be moderated for post-traumatic stress disorder – Whether double punishment where three years’ cumulation between two factually separate successive heroin importations – Whether error when disparity between two offenders in individual sentences for one offence virtually eliminated in total effective sentence – Whether factual error material – Whether one year sufficient deduction from 8-year sentence for plea of guilty by offender without prior convictions – In the kidnapping and perverting justice offences rehabilitation held subordinate to general deterrence and denunciation – Reduction in that offender’s drug sentence held not to necessitate re-sentencing for kidnapping and perverting justice – But new single non-parole period required.

---

APPEARANCES:	Counsel	Solicitors
For the Crown (Cth)	Mr. J.R. Champion SC With Ms M. Tittensor	Commonwealth Director of Public Prosecutions
For the Crown (State)	Mr. B. Kayser	Ms K. Robertson, Solictior for Public Prosecutions
For the Applicant Su	Mr. O.P. Holdenson QC	Lewenberg & Lewenberg
For the Applicant Bava	Mr. O.P. Holdenson QC	Ellinghaus & Lindner
For the Applicant Zaydan	Mr. P.F. Tehan QC	Issac Brott & Co.
For the Applicant Belikov	Mr. G.P. Mulally	McNamaras

BATT, J.A.:

Introduction

The court heard together over two full days applications by Yahya Zaydan, John David Bava, Alexander Yang Su and Victor Belikov for leave to appeal against the respective sentences imposed on them by a judge in the County Court at Melbourne on 7 April 2003 for drug offences and immediately after the conclusion of argument in those applications the court heard an application by Su for leave to appeal against the sentence imposed on him by a judge of the Trial Division on 17 November 2003 for kidnapping and attempting to pervert the course of justice. That course was taken because the several applications had one or more common features with one or more of the other applications, such as some co-offending by applicants or some common, though non-applicant, co-offenders. The full details of the related offending and the proceedings in respect thereof make for complexity, if not confusion, and so it seems better to give a summary statement at the expense of some detail.

Between 21 March 2000 and 18 March 2001 Australian Federal Police (“AFP”) officers arrested eight persons as…

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 Zaydan

Details

AGLC: R v Zaydan [2004] VSCA 245
Case: [2004] VSCA 245
Decision Date: 21 December 2004

CaseChat Overview and Summary

The appellants, four individuals, were convicted for various drug offences, with one also convicted of kidnapping and perverting the course of justice. They appealed against their sentences, arguing that they were excessive, violated the principle of totality, and did not appropriately consider the mitigating factor of post-traumatic stress disorder. The appeal was heard in the Court of Appeal. The central legal issues were whether the sentences were manifestly excessive, whether the general deterrence principle should be moderated by the post-traumatic stress disorder, whether there was double punishment for two separate heroin importations, and whether the disparity in individual sentences for the same offence was material.

The court examined whether the sentences were manifestly excessive or crushing, noting that they were not. It also found no breach of the totality principle, as the cumulative sentences for the drug offences did not unduly impact the sentences for the kidnapping and perverting justice charges. The court held that the general deterrence principle could not be moderated by post-traumatic stress disorder, as rehabilitation was subordinate in the context of these serious offences. Regarding double punishment, the court found that the sentences for the two separate heroin importations did not constitute double punishment, as they were factually distinct. The court also held that the disparity in individual sentences for the same offence did not require re-sentencing for the kidnapping and perverting justice charges, as the total effective sentence was not materially affected. Finally, the court concluded that a one-year reduction for the plea of guilty was appropriate for the offender without prior convictions.

The court ordered a reduction in the sentence for one of the appellants, resulting in a new single non-parole period. The sentences for the other appellants were affirmed.

Orders