CDirector of Public Prosecutions v Khan

[2023] VCC 1432

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-22-02362

CR-22-02363

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAHERYER KHAN

OBAID KHAN

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 August 2023
CASE MAY BE CITED AS:	CDPP v Khan & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 1432

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Possession of paper or articles resembling postage stamps contrary to the Commonwealth Criminal Code  – Offenders on student visas – No prior convictions – Youthful offenders – Early plea of guilt – Prosocial antecedents – Excellent prospects of rehabilitation
Legislation Cited:	Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sentencing Act 1991
Cases Cited:	Butler v R [2023] NSWCCA 100, DPP v Cornish [2012] VSCA 45, Ly v The Queen (2014) 227 FCR 304.
Sentence:	12 month non – conviction bond with a recognisance of $1000

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Tatas	Commonwealth Director of Public Prosecutions
For the Accused	Ms D. Markotich	Markotich Lawyers

HER HONOUR:

1Shaheryer Khan and Obaid Khan, you have each pleaded guilty before me to one charge of possession of paper or articles resembling postage stamps knowing they were not postage stamps, contrary to s11.2A(1) of the Commonwealth Criminal Code and s85G(3) of the Crimes Act 1914 Commonwealth.

2The facts underlying your offending are as follows.

3The two of you are brothers who, at the time of your offending, were living at Unit 212, 360 Lygon Street in Brunswick East, both of you being Pakistani citizens who were in Australia on student visas.  Up until 12 January 2021 you lived there with your elder brother, Faizan Khan, who left Australia on that date for Pakistan where he still remains.

4You were charged on the basis of being joint co-offenders pursuant to s11.2A of the Commonwealth Criminal Code.  The offending period beginning on the date Faizan left Australia on 12 January 2021 to 24 March 2021 when you were both arrested.

5It is the prosecution case that from an unknown date Faizan ordered and purchased an undisclosed number of counterfeit postage stamps which were delivered and stored at the Brunswick East apartment. 

6In early 2019 Faizan opened multiple eBay accounts offering Australian postage stamps for sale, the customers purchasing them being unaware that the stamps were not authentic Australian stamps.  Neither of you had any part in this enterprise until Faizan left the country.

7From 12 January 2021, however, at Faizan's behest you both took on certain tasks in his enterprise described by the Crown in its opening as;

'Receiving the counterfeit stamps, storing them at the apartment, packaging up orders and posting them to purchasers at the direction of Faizan Khan.'

8Money from the sale of the counterfeit stamps was distributed into nominated bank accounts operated by Faizan Khan.  There is no evidence of either of you receiving any direct profit or of it being provided to you.

9Customers located by police said they were contacted after their initial purchases by Faizan, then directed to place further purchases directly through the seller's website,  by which method your brother, Faizan, eliminated eBay from the sales and hence the commission to it.

10In about February 2021 police received suspect packaging containing strips of counterfeit stamps which had been seized by Australia Post.  Further Australia Post intercepts on 16 and 17 March 2021 yielded more distinctively packaged items containing counterfeit stamps.  Their origins were traced back fairly easily it would seem to the Brunswick East apartment.

11On 16 March 2021 police saw numerous boxes and packages of varying sizes in a parking bay allotted to the apartment you lived in, in the underground communal car park area.

12On 24 March 2021 police executed search warrants at the apartment.  Each of you were arrested and a search of the flat conducted.  In the search police seized a Dymo maker loaded with the same labels as were used on the packages seized by Australia Post, together with 35 boxes containing about 2.4 million Australian stamps of various denominations which were counterfeit and unposted packages bearing the same distinctive markings as those seized by Australia Post.

13You were both interviewed and made admissions that there were counterfeit stamps at the house and that your brother, Faizan, told you who you needed to send the parcels to by calling you.

14You, Shaheryer Khan, said Faizan Khan used websites to sell to customers which were prepaid.com and Austral Pack Pty Ltd which are still active 
that Faizan Khan managed the two said websites,  that the customers paid Faizan Khan through PayPal and you did not receive any money.

15Ultimately police determined that about, as I have said, 2.4 million counterfeit Australian stamps of various denominations had been seized with a face value of around $6m.

16A police stamp expert found the stamps to be of high quality and very good replication.  Customers who purchased the stamps gave statements to police that they were unaware that the stamps they had purchased were counterfeit.  The total actual loss to Australia Post based on your activities in that period of time was $10,340.

17There were three customers who purchased the counterfeit stamps during the offending period, that is between 12 January and 24 March 2021, comprising purchases by one customer on 30 January, 2 February and 9 February 2021,  a second customer on 16 March 2021 and a third customer on 17 March 2021.

18It is conceded by the prosecution that the offending occurred at the direction of Faizan Khan who also paid the rent on the Lygon Street apartment and paid an allowance to each of you for expenses.

19The maximum penalty for this offending is five years' imprisonment and/or a fine of $66,000.

20There has been some delay in the resolution of this matter.  You each spent a night in custody, being released on bail on 25 March 2021 subject to strict bail conditions including daily reporting to police and the application of a curfew which remained in force until 27 July 2022.

21Following a number of mentions relating, as I understand it, to an ongoing issue between prosecution and defence about disclosure of materials by the prosecution, the contested committal began on 27 July 2022.  This had to be adjourned further on that date due to further disclosure issues arising during cross-examination of the informant.  The committal continued on a part heard basis on 19 and 20 September 2022 but again was adjourned due to the unresolved disclosure issues.  Finally, on 13 December 2022 the contested committal resumed until the matter resolved to the plea, apparently while it was running.

22I now turn to the personal circumstances of each of you.

23You, Shaheryer Khan, are now 25 years of age and were 22 at the time of this offending.  You, Obaid Khan, are now 23 and were 21 during the offending.  You are the second and third of six children born to your parents.  Neither of you have ever before or since been involved in criminal offending.  Your brother, Faizan, is the oldest child.

24You come from a supportive, prosocial and relatively affluent family,  your father being the owner of a bus transport business in Karachi in Pakistan.  You were each educated to Year 12 in Pakistan.

25You, Shaheryer Khan, came to Australia in 2016 to commence study, completing a Diploma of Information Technology at La Trobe University, then enrolled in a Bachelor Degree of Business Information Systems there in 2018.

26You, Obaid Khan, came to Australia in 2018 after completing a year of tertiary studies in Pakistan to take up studies in that same degree.

27You both lived with your brother, Faizan, who had come here first on a student visa in 2015.  You were all supported by your parents who paid your rent and gave each of you an allowance.  They sent the money to Faizan whose name was on the apartment lease from which he paid the rent and gave each of you your allowance.

28Both of you eventually changed your courses to undertake a Diploma in Leadership and Management at Collins College in which each of you were engaged at the time of your arrest.

29Defence counsel told me that your studies were aimed at a plan devised by your parents that you would eventually take over the management of your father's business in Pakistan and then extend it further throughout the country.

30Up to and during the period of offending you each also ran a legitimate eBusiness selling phone accessories and masks.  You, Obaid Khan, also worked part time for about 15 months at Coles in Northcote but at the urging of your parents resigned when the pandemic struck as they were concerned you might contract COVID, this being at a time before vaccines had been developed.

31Defence counsel informed me that you became involved in this offending when your brother, Faizan, fairly suddenly left Australia to be married in Pakistan.  He told you what you were to do while he was away, it being your understanding that he would return after several months.  Neither of you had had any involvement, it would seem, in that business previously.

32In March 2021, following your arrest, each of your student visas were cancelled and you remain here on bridging visas.  Due to the stress of these legal proceedings each of you sought and received permission from your father to cease your studies.  You have received advice from immigration lawyers that because of these charges you may face deportation depending on the ultimate disposition imposed in this case.  This has added further stress as you both wish to finalise your studies in Australia, they being prestigious and highly regarded in Pakistan.

33Both of you now work part time in a food delivery company called DoorDash. 

34You, Obaid Khan, have been attending for treatment and therapy on psychologist, Jeffrey Cummins, whose report was tendered on the plea.  In that report Mr Cummins noted that you were raised by a close knit, religious, middleclass Muslim family and that you are still close and often speak to them multiple times a week.  Neither of your parents have ever been in trouble with the law.  He noted you had no history of drug or alcohol issues, mental health issues and have never previously been involved in criminal offending.

35Mr Cummins described you as respectful, apologetic and embarrassed in relation to your offending about which you expressed regret and remorse.  It was his opinion that as a result of being charged and then awaiting the outcome, both in relation to these legal proceedings and your visa status, you have developed and continue to suffer from;

'A generalised anxiety disorder with associated symptoms of depression and trauma in relation to his arrest, spending overnight on remand and then having to face the very protracted legal proceedings.'

36In the alternative Mr Cummins diagnosed you as suffering from a first episode of a major depressive disorder with associated features of traumatisation and anxiety, finding that your current mental health problems are moderately severe in type.

37It is the submission of defence counsel appearing for each you that I should deal with you by way of a non-custodial disposition, specifically a s19B discharge or bond without conviction.  In considering this I need to outline the prosecution's submissions in this matter.

38In short compass, it was submitted to me by the learned prosecutor that I should regard the objective gravity of this offending as high and that the primary principles to which I should have regard are general deterrence, denunciation and just punishment.

39Ms Tatas, for the prosecution, submitted that having regard to the directive contained in s16A sub-s1 of the Act that a court must impose a sentence or make an order that is of, 'a severity appropriate in all the circumstances of the case' and the s16A sub-s(2)(k) requirement that a sentence must be sufficiently severe to ensure adequate punishment for the offence meant a term of imprisonment should be imposed in this case.

40Going to the sentencing factors the court must take into account pursuant to s16A(2) paragraphs (a) to (p) and turning to those paragraphs relevant to this case, Ms Tatas submitted first that the nature and circumstances of the offending were that you and your brother were involved in a large and sophisticated criminal enterprise of possessing and selling stamps to unwitting customers which offending only ceased when you were arrested.

41She submitted you were responsible for receiving the stamps, storing them, packing and posting them to purchasers and were therefore not simply passively possessing the stamps on behalf of another.  She submitted that placed this case at the upper end of seriousness for this type of offending.

42She submitted that this was course of conduct offending over a period of more than two months during which you were able to amass a significant volume of counterfeit postage stamps and that you were directed by Faizan Khan to participate in this sophisticated criminal enterprise of selling the stamps through online businesses to unsuspecting consumers.

43Ms Tatas submitted the offending was planned, premeditated and not spontaneous or opportunistic.  She submitted the sheer volume of the stamps involved meant that this was essentially a business of importing the product, offering it for sale and accepting payment.

44In relation to the injury, loss or damage Ms Tatas submitted that while the loss attributable was only $10,340 the actual loss to Australia Post would have been much greater given the face value of the stamps seized.

45She submitted that in relation to the guilty plea and the contrition, see s16A(2)(f) and (g), that it should be only given moderate weight as it was entered at a relatively late stage and in the face of a strong Crown case.

46Ms Tatas also submitted that in your sessions with Mr Cummins you,
Obaid Khan, sought to shift blame for the offending and denied actual knowledge which, she submitted, was not demonstrable of either contrition or remorse. 

47She submitted there was a strong need for general deterrence and that the offending had the potential to undermine the Australian postal system such that, particularly with reference to comparative appellant authorities which the prosecution tendered, a term of imprisonment was required.  She submitted the seriousness of the offending was reflected in the maximum penalty of five years' imprisonment.

48She submitted that objectively viewed your criminality was serious and a substantial period should be imposed to reflect that fact and in order to deter others who might be tempted to engage in similar conduct.

49Ms Tatas also submitted that specific deterrence was still a live issue because the offending was serious and engaged in for financial gain.  She also submitted this was a case where the need for adequate punishment weighed in favour of imposing a term imprisonment.  She conceded that each of you has no prior convictions, were previously of good character and at the time of the offending were youthful offenders which however, she argued, whilst a relevant mitigating factor should give way to the requirements of general and specific deterrence and denunciation.

50She also submitted that delay in this matter, as a result of disclosure issues, was not inordinate and should carry little weight.

51Finally, Ms Tatas submitted that a s19B disposition was not available or appropriate in this case because of the requirement that the court must be of the opinion on the materials that it was inexpedient to inflict any punishment other than a nominal punishment or to release the offender on probation.

52She argued the serious nature of the offending, which was not committed under any extenuating circumstances, and the need to effect general deterrence and denunciation for offending which was easy to commit and difficult to detect, rendered such a disposition inapplicable in this case.

53With the greatest of respect to the prosecution I have a number of difficulties with these submissions.

54As I indicated on the plea hearing the situation would be vastly different were Faizan Khan the offender with whom this court is dealing.  It is my view there are particular extenuating circumstances in this case.

55First, I am satisfied you each did what you did essentially because your brother, Faizan, wanted you to keep his business going while he was away.  This was a business which had previously been setup and run solely by him and from which he derived all the profits which, on the materials, he continued to do even during his absence.

56The enterprise may have involved sourcing and selling very large numbers of counterfeit stamps and the amassing of sufficient stamps which had you sold then could have resulted in very substantial losses to Australia Post.  However, the prosecution case here is that on five occasions and only after Faizan called you the two of you packaged and posted stamps resulting in a total loss to Australia Post of $10,340.

57Your actions were specifically described in paragraph 11 of the prosecution opening as,

'Receiving the counterfeit stamps, storing them at the residence in Brunswick East, packaging up orders and posting them to purchasers at the direction of Faizan.'

58You have specifically not been charged with selling the stamps, which you could have been, nor is it alleged you played any part in obtaining them.  I am satisfied your roles in this enterprise were confined and unsophisticated in terms of what you were required to do.

59Given the way Faizan ran his business before he left there is no reason to assume you would have continued your participation after he returned.

60Further, there is no evidence as to when the stamps stash found at the premises arrived there or how much of it was delivered after Faizan left.  I am therefore unable to accept the submission that in assessing loss I should consider the value of all the stamps amassed by Faizan rather than the value of what you posted out.

61I do not reject the prosecution branding of this enterprise as a deliberate, sophisticated and planned exercise but in my view that militates against
Faizan Khan rather than you.  I do not regard what you did as involving either sophistication or planning.

62I also accept that you had little appreciation of the seriousness of your actions. 

63You, Shaheryer Khan, told police in your record of interview that if you had known how wrong it was you would have stopped.

64You, Obaid Khan, gave specific instructions to that effect to your counsel.

65I am fortified in this view by the fact that you were both youthful offenders at the time with no previous criminal involvement, including the years you had been Australia and who were being financially supported in any event by your parents.

66You had no previous involvement in Faizan's business.  It also appears Faizan had a certain authority over you as your older brother.  He was in charge of the money sent by your parents and you did what he told you without expectation of financial reward.  In other words, I accept you essentially undertook a temporary mechanical role in the business from which you were never to receive any profits.  You did as you were told by Faizan, your older brother, who was the architect and in real terms the only true game player in this sophisticated enterprise, without any real appreciation of the criminal gravity your actions involved.

67I am also satisfied that from the outset there were attempts by you to plead guilty to this matter and that ultimately the original charge that was the sticking point, that is a charge that you were selling the stamps, was withdrawn by the prosecution.  Nor do I altogether accept the Crown's submission that the prosecution case in respect of each of you was strong.  Whilst the Crown case against Faizan Khan was undoubtedly strong the issue of knowledge by each of you was not necessarily evident, notwithstanding admissions made in the record of interview.

68In my view, this was an early plea which was also on the material accompanied by remorse and embarrassment.  I refer to Mr Cummins' report and also to a letter from your parents to which I will shortly refer in more depth.

69Ms Tatas submitted the assertion by you, Obaid Khan, to Mr Cummins that you did not know the stamps were counterfeit traversed the plea and was contraindicative of remorse.  Despite this you have pleaded guilty and it was Mr Cummins' opinion you were mortified and much affected by the charges.

70Specific deterrence therefore, particularly given the previous good history of each of you, is not a matter which, in my view, requires particular regard in the sentencing exercise.

71I am also satisfied in the circumstance of this case that the youth of each of you was a significant factor which played into your capacity to be involved in this offending in the first place.

72Given your previous good character, prosocial antecedents, subsequent good behaviour, the mitigating factors normally accompanying the issue of youth, in particular the need to pay more than ordinary attention to prospects of rehabilitation, is not outweighed in my view as suggested by the prosecution by the magnitude and seriousness of the criminal enterprise you became involved in.

73I find you both have excellent prospects of rehabilitation and indeed conclude that but for the actions of your older brother were unlikely to have otherwise ever appeared before the court for criminal offending.

74I have had regard to the authorities relied upon by the prosecution, each of them involving criminal activity relating to counterfeit products.  In each of those cases the loss suffered was significantly greater than in this current situation, usually in the realms of hundreds of thousands of dollars and the accused, the prime architect, also financially profiting from the offending, which again is not the case here.

75For example, in the case of Butler the unlawful proceedings were $341,711 with a loss to Australia Post of $637,000.41.  In that case the Court of Appeal in fact reduced the sentence imposed and instead imposed a two year sentence of imprisonment accompanied by a recognisance release order after 11 months.

76In the case of Cornish involving a loss of $124,550 the accused received an 18 month sentence with an immediate recognisance release order and a $5,000 fine.  That accused was described by the courts as having acted with a motive of dishonesty and greed which cannot be ascribed to you.

77In the case of Ly which involved the sale of counterfeit DVDs from two shops where 61,000 counterfeit DVDs were seized by the police the offender received a 12 month term of imprisonment with a recognisance release order to take effect after a service of eight months of that sentence.  That offending was described by the court as a commercial enterprise from which the accused clearly directly profited.

78I am also satisfied that each of you has been subject to considerable anxiety as a result of delay in this matter which, it is clear, was caused by disclosure issues.  Neither of you has reoffended and you have also been burdened by the anxiety surrounding the potential cancellation of your student visas and the prospect of deportation.

79Relevant to each of you was what I regarded as a most impressive letter
written by your parents, Hassana Ibrahim and Ibrahim Khan.  In that letter dated
19 July 2023 your parents stated that when they became aware of the offending they were;

'Absolutely shocked and heartbroken as we have raised all of our children to be respectful law abiding individuals.'

80They said they were proud their sons had sought to pursue higher education in Australia and that they were able to facilitate that opportunity.  Despite this physical distance they had always maintained a close bond and regular communication.  They stated;

'When we were notified of their arrest we were utterly shocked.  It was almost incomprehensible to think that our children had been involved in any sort of criminal offending, not only because of the people they are but because of the love and appreciation they had for their time in Australia.'

81Your parents stated they were confused, extremely angry and disappointed when they were made aware of the allegation.  Importantly in my view they stated;

'As the matter progressed and further details were released we became aware of our oldest son's involvement.  At that point we knew this would fracture our family dynamics.  Obaid and Shaheryer remain very angry with Faizan and refuse to engage with him on any level which as parents is heartbreaking.  Our once loving and supportive family has been shattered as a result of poor choices made and despite the prolonged during of this legal matter spanning over around two and a half years it appears that there is no resolution to our familial conflict.'

82In my view the serious and ongoing rift that this has caused with your older brother which whom you are both clearly very angry, as attested to by your parents who are much distressed by this eventuality, also supports the notion that you failed to appreciate the seriousness of your actions and what he got you to do.

83The objective seriousness of this criminal enterprise was undoubtedly high and ordinarily principles of general deterrence and just punishment would dominate the sentencing exercise.  This is a case where an institution relied upon by the prosecution was sought to be directly undermined by the criminal activity conducted by your brother, Faizan.

84However, in my view the circumstances applicable to each of you, your youth, immaturity, naivety, previous and subsequent good character, early pleas of guilty, remorse, exacerbation attributable to delay, combined with your low level roles and the limited duration of the offending as well as the relatively modest loss suffered are such that a term of imprisonment is not, in my view, appropriate in the particular circumstances of this case.

85I make it very clear the situation would be entirely different were your brother, Faizan, the accused person with whom I was dealing.

86Nor is there evidence that either of you requires any specific rehabilitative measures.  As I have said, but for your brother's involvement of each of you in his scheme I am confident that neither of you would have ever appeared before a court.

87You are young men with your lives before you.  First offenders who are remorseful for and embarrassed about your roles in this offending which was entirely directed by Faizan and who, in my view, are unlikely to reoffend.

88In all the circumstances therefore I am satisfied that the imposition of a non‑conviction bond pursuant to s19B of the Commonwealth Crimes Act 1914 is appropriate in this case.

89So I understand that form will be provided.  There will be a recognisance of $1,000 which will only be paid if you breach the bond and the bond will last for 12 months.

90Now all of the submissions, may I hasten to add, by the prosecution absolutely had application in a general sense to the level of the offending but in my view had application to Faizan's role.  He is an extremely lucky man that he suddenly got married.  This would be an entirely different result were he present.  I am very anxious to make it clear that overall the enterprise by him was an extremely serious one.  He should be utterly ashamed of involving his younger brothers in it in the way that he did and getting you into the trouble that you have faced over the last two years.

91Pursuant to s6AAA I declare that had you not pleaded guilty I would have placed you on a two year bond with conviction.

92Is there anything else that I might need to attend to?

93MS MARKOTICH:  No, Your Honour.

94HER HONOUR:  All right.  Do you all understand what's happened?

95OFFENDER SHAHERYER KHAN:  Ah yes, Your Honour, I do.

96HER HONOUR:  Thank you very much.  All right then. Mr Obaid, did you understand what I said?

97OFFENDER OBAID KHAN:  Yes.  Yes, Your Honour.

98HER HONOUR:  All right.  Good.  Thank you very much.  We will just get
the - - -

99MS TATAS:  Your Honour, these forms will just be emailed through to
Your Honour's associate.

100HER HONOUR:  All right.  Can we do it now because they need to sign it?

101MS TATAS:  Yes, of course.

102HER HONOUR:  In this particular case I wanted a non-conviction.

103MS TATAS:  No, I understand, Your Honour.

104HER HONOUR:  All right.  Essentially because of the – essentially because of youth so yes.  So I'll just stand down.  Thank you very much.

105Yes, I've signed those and we'll just get the accused to sign them.  Ms Tatas, can I say please I know I summarised all your arguments and then promptly said I disagreed with them all.  Please don't take that as any sort of criticism.  
I thought what you put was incredibly full and helpful and I understand why you put them.  I was reflecting as I went through them just how complete and how much work had gone into them and I compliment you on that.

106MS TATAS:  Thank you, Your Honour.

107HER HONOUR:  As I said, very much applicable to Faizan.  Less so for these two I would say.

108MS TATAS:  Thank you, Your Honour.

109HER HONOUR:  But yes.  So please don't go away thinking that I'm in any way critical of your work.  I thought it was terrific.

110MS TATAS:  Thank you very much, Your Honour.

111HER HONOUR:  All right.  Thank you.  All right.  Thank you very much.  I thank counsel very much for their assistance and we'll stand down to 10.30. 
Thank you.

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