R v Zaydan

Case [2004] VSCA 245


SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN

No.104  of 2003

v.

YAHYA ZAYDAN

THE QUEEN

No.105  of 2003

v.

JOHN DAVID BAVA

THE QUEEN

No.94 of 2003

v.

ALEXANDER YANG SU

THE QUEEN

No.98 of 2003

v.

VICTOR BELIKOV

THE QUEEN

No. 340 of 2003

v.

ALEXANDER YANG SU

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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

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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.

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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

  1. 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. 

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

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R v Zaydan [2004] VSCA 245
Case
[2004] VSCA 245
Decision Date

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

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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