R v Zehir [1998] VSCA 119

Court of Appeal (Vic)|1998-12-01|Before: TADGELL, CHARLES and CALLAWAY, JJ.A.

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.

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 and (2) of the 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 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 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 pursuant to the Crimes (Confiscation of Profits) Act 1986 and ordered that the applicant pay reparation to the Commonwealth in the sum of $458,383.59.

The applicant sought leave to appeal against sentence on six grounds, which may be summarized. The first was that the sentence was manifestly excessive. The next three grounds were that the judge failed to give sufficient weight to the applicant's medical condition, his prospects of rehabilitation and his plea of guilty. The fifth was that his Honour failed to take into account "the disparity between the State offences and the Commonwealth offences". The sixth ground relied on a worsening in the applicant's medical condition since the passing of sentence on 21st April 1998, praying in aid the line of cases of which R. v. Eliasen (1991) 53 A.Crim.R. 391 is the best known. The Crown was advised in advance that the fifth ground would not be argued. Ultimately Mr. Tehan, Q.C., who appeared for the applicant, relied only on the sixth ground.

Between 1st August 1995 and 27th November 1995 the applicant generated on his computer 41 false birth certificates and 41 false Northern Metropolitan College of Technical and Further Education student identification cards. All of them were of high quality.

On 5th October 1995 he opened an account with the Westpac Bank, using a false birth certificate and student identification card in the name of Craig Ramace. On 17th October 1995 he opened a Commonwealth Bank account using the same false identification. In each case the applicant gave his mailing address as a newsagency post office box. Between 27th November and 6th December 1995 42 bank accounts were opened with the Commonwealth Bank using false birth certificates and student identification cards and a post office box at a newsagency.

On 8th December 1995 the business name TGE Plumbing was registered with the Office of Fair Trading and Business Affairs in the name of "Peter Thompson", which was one of the false identities created by the applicant. Four days later a business account in the name of "Peter Thompson, trading as TGE Plumbing" was opened with the Westpac Bank, using the false identification. On 22nd December 1995 34 cheques were drawn on that account. They were then deposited into 27 of the Commonwealth Bank accounts, leading to the creation of credit balances in those accounts to the value of $67,174.05. Between 22nd and 26th December 1995, as a result of 61 transactions at auto-teller machines, a total of $41,430 was withdrawn.

On 1st February 1996 the applicant opened an ANZ Bank account in the name of Fatih Oran, using a false birth certificate and a driver's licence receipt. The driver's licence receipt was later recovered and found to bear a false cash imprint. On 19th February 1996 a National Bank account was also opened in the name of Fatih Oran, reusing the false birth certificate and driver's licence receipt together with the ANZ Bank Access card that had been issued as a result of the previous deception. Six days earlier the business name FCB Services was registered with the Office of Fair Trading and Business Affairs in the name of "George Noble" and on 20th February 1996 a bank account was opened in the name of "George Noble, trading as FCB Services". The identification provided included a Commonwealth Bank Keycard.

On 22nd February 1996 the applicant attended the VicRoads office in Carlton, where he represented himself as Fatih Oran, produced the false birth certificate, the ANZ Access card and the ANZ bank statement and applied for a Victorian driver's licence.

On the same day the applicant was arrested at a branch of the Commonwealth Bank attempting to operate the FCB Services account. He and his car were searched. The police located 22 Commonwealth Bank Keycards, a Westpac Bank Handycard in the name of Peter Thompson, a Westpac Handycard in the name of Craig Ramace, 13 false birth certificates, a National Bank Flexicard, driver's licence receipt, cheque book and deposit book all in the name of Fatih Oran, keys to the post office box associated with FCB Services and its business name registration. Items were also found that bore on the offences the subject of the indictment. Police later took possession of the applicant's personal computer. By operating files contained in the computer and on a disk found in the applicant's possession, investigators were able to reproduce the student identification card data sheets and birth certificates that had been used.

It was conceded on behalf of the Crown that the applicant had not acted alone, which accounts for the frequent use of the passive voice in the foregoing account, and the judge sentenced him on that basis.

I have so far described the offences the subject of the State presentment. The indictment related to a systematic fraud on the revenue alleged to have been undertaken by the applicant and another between December 1993 and February 1996. Forty-four sales tax refund applications were lodged at 14 offices of the Australian Taxation Office in five States and the Australian Capital Territory. The applications were made in the names of 17 different companies, each claim seeking a cash refund of between approximately $8,000 and $15,000. The total claimed was $518,388.57. Only two applications were rejected. The other 42 were processed and approved under the self-assessment system, resulting in the issue of refund cheques to the value of $502,544.49. Thirty-eight of those cheques were presented, so that the actual amount of which the Commonwealth was defrauded was the sum of $458,383.59 the subject of the reparation order to which I have earlier referred.

It is unnecessary to go into the detail of the 44 offences. The 17 companies on behalf of which applications were lodged did not in fact trade, although each of them was registered with the Australian Securities Commission. The director or public officer signing the claim was fictitious. Ten business names were registered with the Office of Fair Trading and Business Affairs and 15 separate bank accounts were operated, both to process the money obtained from successful applications and to procure and maintain office services and other infrastructure necessary to carry out the scheme. Three post office boxes were established, one at a newsagency in Sydney and two in Melbourne. Each was obtained in a false name. Until the applicant was arrested on 22nd February 1996 the Commonwealth had no evidence that identified him as a participant.

Having regard to the grounds of appeal relating to the applicant's health, it is as well to say something, too, of the medical evidence adduced on the plea. Dr. de Crespigny, a consultant nephrologist, testified that the applicant suffered from glomerulonephritis, a condition that had progressed to end stage renal failure. He said that the applicant was in a group whose mean life expectancy was better than 15 years but that his condition certainly involved a dramatic shortening of life expectancy compared to what would otherwise be expected in someone of his age. The applicant was suffering from hypertension. At an earlier stage he had suffered from accelerated or malignant hypertension but that had been brought under control. Dialysis had begun in late 1997 and at the time of sentence was taking place three times a week, each session being of some five hours' duration. Dialysis might continue in its present form (hæmodialysis) for the rest of the applicant's life. Alternatively he might undergo a renal transplant if that became available or a different form of dialysis, known as peritoneal dialysis, might be undertaken. At the time of the plea he was a category 2 patient, who would not be offered a kidney transplant, but Dr. de Crespigny was hopeful that he might become in time a category 1 patient. He considered that, potentially, the applicant was an ideal candidate for a transplant. The average waiting time for a category 1 patient was approximately four years. Dr. de Crespigny had two concerns about a patient like the applicant who was in custody. The first was a concern about complications following infection, because his immune system would be depressed, and the second was his access to dialysis.

The other medical witness, who was called by the Crown, was Dr. Tuck, who is employed by St Vincent's Correctional Health Service and is located at Port Philip Prison. She gave evidence concerning the capacity of the prison system to deal with a patient requiring regular dialysis, medication and a special diet. She was referred to a report from Dr. Nicholls, a specialist in renal medicine at the Royal Melbourne Hospital, who had been attending the applicant. The following was one of the questions and answers in examination-in-chief:

"Now, the report of Dr Nicholls also refers to dietary constraints. What regime is possible within the prison system in relation to a prisoner that has dietary needs?---At either the Melbourne Assessment Prison or Port Phillip Prison, requests for specialist diet are directed towards the catering service and they are able to provide an appropriate diet. It may not be as full a range a diet as one would have [in] the community, in that it may not, for example, perhaps be as variable as one may choose to have in the community, but the appropriate diet can be offered." (Emphasis added.)

Six pages of his Honour's sentencing remarks were taken up with a careful discussion of the applicant's medical condition and prospects, the additional hardship that his illness would entail and the availability of medical treatment and medication within the prison system.

Mr. Tehan opened his case on the basis that there were five respects in which the applicant's medical condition, or his position as a patient, had worsened: first, his hypertension was no longer under control to the degree that it had been when Dr. de Crespigny gave his evidence; secondly, the applicant was not being given regular access to dialysis and, on occasions, his dialysis sessions had been cut short; thirdly, he did not have access to all the medication, especially pethedine, that he needed; fourthly, his special dietary requirements were being ignored; and, fifthly, his combination of end stage renal failure and hypertension were not being properly treated. Evidence was adduced, both on affidavit and orally, with a view to substantiating those submissions. The Court reserved its decision on whether the evidence was admissible. The conclusion I have reached on the merits makes it unnecessary for me to decide that question. I have considered all the evidence on the assumption that it was properly received.

In the end counsel abandoned his submissions in relation to access to dialysis and medication and the fifth point came down to the provision of an appropriate diet. Although no concession was made in relation to hypertension, I am not persuaded that there has been such a deterioration in the applicant's condition as to attract what for convenience I shall call "the principle in Eliasen's Case". The evidence was that his hypertension had worsened from the level at which he was stabilized but was moderate rather than severe. The topics that need to be examined are the applicant's dietary requirements and the effect of imprisonment on his prospects of being offered a renal transplant.

Dr. Nicholls, who gave evidence before us, explained that an appropriate diet was an essential part of treatment for a patient on dialysis. The patient's diet needed to be restricted in protein, potassium, sodium and total water intake. If sodium and water intake were not adequately restricted the patient would become salt and water overloaded, leading to high blood pressure and an excess load on his heart. Dr. Nicholls said that the applicant was suffering high blood pressure and an enlarged heart. Both conditions pre-dated the prison sentence, but they should have improved once he had settled into a programme of dialysis. Dr. Tuck also gave evidence. The applicant had been in hospital for the first three-and-a-half months of his sentence. He was then voluntarily transferred to the general prison population in Port Phillip Prison. She said that, whilst the applicant was in hospital, a diet that was low in potassium, low in sodium and low in protein had been ordered from the caterer. When he left the hospital a similar request was made to the catering service.

Dr. Tuck was cross-examined at length about the applicant's diet, but the critical facts emerged from the applicant's own evidence and that of Mr. Spadano, who is the Prison Services Manager at Port Phillip Prison. The applicant said that he had had a special diet, consisting simply of vegetables and salad, on about a dozen occasions whilst he was in hospital and that he had complained to nursing staff and one of the medical officers, but he conceded that he had made no complaint about his diet since he had been in the general prison population. Mr. Spadano agreed in cross-examination that for the last six weeks the applicant had not had a special diet. It was only as a result of this application that Mr. Spadano had become aware of the position and taken steps to rectify it.

Whether or not the applicant was given an appropriate diet whilst he was in hospital, it is plain that there was a breakdown in the system thereafter. It was not just an administrative failure, but a failure that seriously endangered the applicant's health. It is not, however, a development of such a kind as to attract the principle in Eliasen's Case. Although it has contributed to a worsening of the applicant's condition, it is essentially a fault in prison administration. The applicant should have complained. I accept Mr. Spadano's evidence that, now the matter has come to light, it will be rectified. The responsible officers at Port Phillip Prison would, of course, be at risk if it were not.

I mentioned earlier that the applicant is classified as a category 2 patient, so that a renal transplant would not be offered to him if it became available. In an affidavit affirmed on 21st September 1998 he expressed concern that he could not be upgraded whilst he was in prison "because there is not sufficient immediate access to an imprisoned person necessary for the transplant organ should one become available". Had that belief been correct, it would have been a matter of importance that had not been brought to the judge's attention; but the consequences need not be considered, because it became clear from the evidence before us that the applicant's fear is misplaced. Dr. Nicholls testified that he can be moved to category 1 when and if he is well enough for a transplant.

When an organ becomes available, the objective is to get the patient into hospital as fast as possible. Both Dr. Tuck and Mr. Spadano gave evidence that the applicant's incarceration would not prevent that. As this is a matter that may become significant should the applicant's condition improve and he be moved to category 1, I shall set out for the record the relevant evidence. The following are answers Dr. Tuck gave to questions that I asked:

"I noticed in the course of your evidence to us you did refer to what would happen if there were an emergency in the middle of the night. You referred to the medical officer on call?---Yes.

That prompts me to ask you what would happen if the applicant were upgraded to category 1 and a transplant became available in the middle of the night. Are you able to speak about the practicalities of responding in the prison system?---Yes, apart from there being a medical officer on call and depending on the distance and the time the doctor would take to get there, we also have a system whereby anybody who is urgently ill is seen by a member of nursing staff and then we call an ambulance and take them out, and in fact prior to the previous hearing in the court I discussed with the deputy director of Securitas at Port Phillip Prison - they are the correctional managers - discussed this issue, and I was assured that if I needed an urgent escort out for Mr. Zehir that could be arranged.

Are you able to give an estimate? If a message were received at the prison that a transplant was available in the middle of the night, how long would it take?---Ambulance response time at Port Phillip varies, sometimes it's ten minutes, sometimes it's 20, 25 minutes; that is my experience in the recent past for our response time for an urgent ambulance out. If we didn't have to call the ambulance, then the Group 4 supervisor on duty would find the escort officers, so they certainly should be able to get him into Royal Melbourne Hospital in an hour.

In the middle of the night?---We can get people to St Vincent's, where most of our urgent medical problems go, rapidly in the middle of the night when we need to."

"You heard me ask Dr. Tuck about the practicability of responding in the middle of the night if a transplant became available. In your affidavit you say that should the applicant become eligible for a transplant the prison will do everything possible to facilitate his attendance. Do you agree with Dr. Tuck's assessment that that can be done as a matter of urgency as she described in her evidence?---Yes, if required during the night, we have a security vehicle at units and we deploy staff to provide the escort.

Are you aware of any difficulties standing in the way of that - standing instructions or anything like that?---No."

This application is not an appropriate vehicle, nor is there any need, to examine the principle in Eliasen's Case. It is sufficient to refer to the most recent discussion, by Buchanan, J.A. in R. v. DHM [1998] VSCA 11. I have called it a principle, but it is more aptly described as an exception to a general rule. In the light of the evidence to which I have referred, the exception does not apply in the present case. I would therefore dismiss the application.

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Judgment (32 paragraphs)

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