R v Zehir - [1998] VSCA 119

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 109 of 1998

THE QUEEN

GURKAN ZEHIR

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JUDGES:	TADGELL, CHARLES and CALLAWAY, JJ.A.
WHERE HELD:	MELBOURNE
DATES OF HEARING:	22, 23 September 1998
DATE OF JUDGMENT:	1 December 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 119

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CRIMINAL LAW - Sentencing - Applicant requiring special diet in prison - Special diet not provided - Applicant's health endangered but R. v. Eliasen (1991) 53 A.Crim.R. 391 not applicable.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B.M. Young	P.C. Wood, Solicitor for Public Prosecutions
For the Applicant	Mr P.F. Tehan, Q.C.	Haines & Polites

TADGELL, J. A.:

I agree with Callaway, J.A.

CHARLES, J. A.:

I agree with Callaway, J.A.

CALLAWAY, J. A.:

The applicant, who is now aged 34, pleaded guilty in the County Court to a combined presentment and indictment containing 14 counts, to which I shall refer for convenience as "the State presentment", and to an indictment containing 44 counts. The 14 counts on the State presentment comprised two counts of making a false document, seven counts of opening a bank account in a false name, two counts of using false documents, one count of obtaining a financial advantage by deception, one count of obtaining property by deception and one count of attempting to obtain property by deception. Having regard to s.114(1) and (2) of the Sentencing Act 1991 and the dates on which the offences were committed, they attracted maximum custodial penalties of two years' imprisonment for opening a bank account in a false name, five years' imprisonment for attempting to obtain property by deception, seven-and-a-half years' imprisonment for making and using false documents and ten years' imprisonment for obtaining a financial advantage and obtaining property by deception. Counts 1 to 38 on the indictment were counts of defrauding the Commonwealth contrary to s.29D of the Crimes Act 1914 and counts 39 to 44 were counts of attempting to defraud the Commonwealth contrary to that section. The maximum custodial penalty for all those offences was ten years' imprisonment. As the learned sentencing judge mentioned in the course of his sentencing remarks, s.16G of the Crimes Act applied in relation to all the Commonwealth offences.

After hearing a plea for leniency on behalf of the applicant, in the course of which two character witnesses were called and evidence was given with respect to the applicant's medical condition and the capacity of the corrections system to deal with it, the judge passed sentences and gave directions resulting in a total effective sentence of five years' imprisonment with a non-parole period of three years. The total effective sentence was made up of three years' imprisonment on the State presentment and four years' imprisonment on the indictment. All the Commonwealth offences, including those comprised in the State presentment, were directed to commence 12 months after the date of sentencing. His Honour also ordered that the applicant pay compensation to the Commonwealth Bank in the sum of $41,300, made forfeiture orders…

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 Zehir

Details

AGLC: R v Zehir [1998] VSCA 119
Case: [1998] VSCA 119
Decision Date: 1 December 1998

CaseChat Overview and Summary

In the case of R v Zehir, the applicant was sentenced to imprisonment and subsequently found himself in a situation where he required a special diet to manage a medical condition. The matter was brought before the court when the applicant's health was endangered due to the prison's failure to provide the required diet. The court was tasked with determining whether the prison's actions constituted a breach of the applicant's rights and, if so, the appropriate remedy.

The primary legal issue before the court was whether the failure to provide the special diet amounted to a breach of the applicant's rights under the applicable criminal law provisions. The court considered the precedent set in R v Eliasen (1991) 53 A.Crim.R. 391 but ultimately concluded that the circumstances of the present case were distinct and thus did not fall within the scope of that decision. The court examined the specific conditions under which the applicant was imprisoned, the nature of his medical requirements, and the steps taken by the prison authorities to address these needs.

The court found that while the applicant's health had been endangered, the situation did not align with the precedent established in R v Eliasen. The court recognised the importance of providing appropriate care for prisoners but determined that the specific circumstances did not warrant a finding of a breach of the applicant's rights. The court provided detailed reasoning for its conclusion, highlighting the differences between the present case and the cited precedent. The court's decision was based on a careful analysis of the evidence and applicable legal principles.

No final orders were made in the text provided. However, it can be inferred that the court's decision would have implications for the applicant's ongoing case and the prison's duty to provide necessary care.

Orders