Director of Public Prosecutions v Kahlon

[2022] VCC 644

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZACHARY KAHLON (A PSEUDONYM)

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	5 May 2022
DATE OF SENTENCE:	10 May 2022
CASE MAY BE CITED AS:	DPP v Kahlon
MEDIUM NEUTRAL CITATION:	[2022] VCC 644

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — attempting to pervert the course of justice — plea of guilty — family violence — intervention order — protected person — contact with protected person — interference with witness — recorded telephone call — withdraw complaint — co-offender — parity — moral culpability — refugee — work history — no criminal history — prospects of rehabilitation — criminal trial — delay — charges discontinued — immigration detention — prospect of deportation — mandatory deportation — character test — general deterrence — denunciation

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Calica [2021] NTSCFC 2

Sentence:                  Total effective sentence of three months’ imprisonment

Section 6AAA declaration: total effective sentence of 12 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms G McMaster	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J Lavery	Tony Danos Lawyers

HER HONOUR:

1Zachary Kahlon,[1] you have pleaded guilty to one charge of attempting to pervert the course of justice, for which the maximum penalty is a term of imprisonment of 25 years.

[1] A pseudonym.

2Tendered on the plea as exhibit 1 was the ‘Summary of Prosecution Opening’ and I incorporate that opening into these written reasons.

3Briefly stated, the facts of your offending are as follows. You were in a relationship with Sofia Fahey,[2] which began around the end of 2017 or the beginning of 2018. You moved in together almost immediately and lived in a unit.

[2] A pseudonym.

4An altercation occurred between you and Ms Fahey at your unit in the early hours of 7 April 2019. Ms Fahey called the police, who attended shortly thereafter, followed by an ambulance. As part of the investigation, you were arrested. Police applied for a family violence intervention order on behalf of Ms Fahey. On 7 April 2019 and 5 May 2019, you were charged in relation to the alleged offending against Ms Fahey. You were committed to stand trial in the County Court and a trial date was set.

5On 15 November 2019, a family violence intervention order was granted by the Court; Ms Fahey was the protected person and you were the respondent. The order prohibited you from contacting Ms Fahey or having anyone do so on your behalf. The order was served on you the same day.

6On 12 July 2020, you telephoned a friend, Mr Ronald Ross,[3] from Ravenhall Prison. The call was recorded by Ravenhall and later translated into English. You said to Mr Ross, ‘Make a call to her. I keep calling her. If you have time, call her and ask … “what happened, you promiscuous person?”’ Mr Ross responded, ‘Yeah, I will call to see what she will say. They only care about money and as soon as they get the money everything is over.’

[3] A pseudonym.

7During the telephone call, Mr Ross said to you, ‘if you want, we can make it OK’. You asked, ‘How can you make it OK? Give me an idea.’ Mr Ross asked if Ms Fahey withdrew her complaint, would everything be OK, and then you said, ‘That’s it … I swear by Qur'an’.

8Mr Ross offered to talk to Ms Fahey to see if she wanted any money. You said she had already taken your car, so Mr Ross suggested he would offer Ms Fahey $30,000 or $40,000 and to keep the car if she agreed to withdraw the charges. Mr Ross said, ‘if you are happy, we can go make such suggestion to her’. You told Mr Ross to put two mobile phones in his pocket and record it. Mr Ross said he would call her to meet. You then told Mr Ross not to call her but to meet her in person and record it. Mr Ross said he would call her and meet her. He said he would tell her to come and withdraw her consent, keep the car for herself, and she would also receive $30,000–40,000. You once again told him to put his mobile in his pocket and record it.

9You made the arrangement with Mr Ross for the purpose of having Ms Fahey withdraw her complaint for the alleged offending that was before the County Court.

10In furtherance of the arrangement, Mr Ross telephoned Ms Fahey later the same day at 3:54pm on 12 July 2020. However, as Ms Fahey had previously blocked his number, he was not able to connect the call.

11Ms Fahey received a text message from a woman whom she did not know. After a short exchange and phone call, Ms Fahey ignored the messages.

12Ms Fahey then received a call from a male saying to call Mr Ross and providing a mobile number. This number was registered to Mr Ross. Ms Fahey unblocked his number and called Mr Ross back at 7:22pm to tell him not to pass on her number to anyone.

13Mr Ross told Ms Fahey he had to see her and he had a message from you. He said to come to the police station with him and withdraw the charges and, in exchange, you would pay her $100,000. When she refused, Mr Ross said if she did not want to do that then she could, alternatively, not turn up at court. Mr Ross said if she didn’t turn up at the trial, there would be $100,000 waiting for her. He added, ‘if you don’t turn up at court the case will be withdrawn and dropped’. Mr Ross repeatedly said he had a message from you to pass on to her, and then told her to keep the car from you, as he wanted to pay her $100,000 for her not to turn up at court and the case will be dropped. Mr Ross said he wanted to meet her in person.

14When Ms Fahey asked why you didn’t call her yourself, Mr Ross said it was because of the intervention order. Ms Fahey did not meet up with Mr Ross. Ms Fahey understood the offer to be comprised of the vehicle as well as money.

15The car was a Mercedes Benz valued at about $50,000. Ms Fahey was of the belief that it had been jointly owned, as she had contributed money towards its purchase, and whilst you were in custody, Ms Fahey had it registered in her own name.

16On 14 July 2020, you phoned Mr Ross again. The call was recorded by Ravenhall and later translated into English. In the call, Mr Ross told you what he had done in furtherance of your arrangement. He said he ‘called the bitch’, but she blocked his number and didn’t want to talk to him. He said he ‘tried everything’ but she would not come. You told Mr Ross not to give the details on the phone while you were talking.

17Mr Ross then said, ‘I told her that the thing you have taken with you [the car] could stay with you and we will give you even more’. He said Ms Fahey said she owned the car. He said, ‘Let’s give this to you and you withdraw your complaint’. When Ms Fahey said the government was now engaged, Mr Ross said he told her to ‘simply come and withdraw your consent’.

18In response to that information, you said, ‘So forget about her’ and told Mr Ross not to contact her anymore as you would follow the matter legally.

19I sentenced your co-offender Mr Ross on 18 October 2021 to a two-year community correction order. Accordingly, issues of parity arise in sentencing you. I accepted on behalf of Mr Ross that he foolishly involved himself in your situation out of a sense of misplaced loyalty, as you were friends and both refugees from Iran. I described Mr Ross’s offending as a low- to mid-range example of the offence of attempting to pervert the course of justice, noting, however, that the offence of attempting to pervert the course of justice is always a serious offence, which strikes at the heart of the criminal justice system.

20This was an attempt to interfere with a witness and get her to change her statement on charges alleged in the context of family violence. However, Mr Ross made only one call to Ms Fahey and it involved inducements, rather than threats or violence. I regard your offending as objectively more serious than that of Mr Ross. Although, as stated, I accepted that Mr Ross chose to involve himself, nevertheless you must have understood that he was acting to advance your interests and in breach of the family violence order that prohibited contact with Ms Fahey.

21You at times directed Mr Ross’s conduct towards Ms Fahey, telling him to meet with her and to record the meeting on a mobile phone. I regard your moral culpability for the offending as higher than that of Mr Ross, and your offending, a more serious example of the offence.

22Turning to your personal circumstances. You are presently 30. You were born in Iran. You came to Australia via boat. You were initially detained before being granted a temporary protection visa and coming to Melbourne. You had no friends or family and spoke no English. You have worked hard and have prospered in Australia. You set up your own business. You have no prior convictions and are a hardworking and industrious person.

23I accept the submission of your counsel that your prospects of rehabilitation are excellent. The circumstances of your plea of guilty are highly relevant to the sentence I will impose. You were remanded into custody on 7 April 2019 and only granted bail in the Supreme Court on 30 November 2021. You have therefore served 973 days of pre-sentence detention.

24You have always denied that you offended against Ms Fahey. Your trial in this Court was adjourned because of the suspension of jury trials caused by the COVID-19 pandemic. This has caused you a great deal of anguish and distress. Your trial before me began on 20 April 2022. Ms Fahey’s evidence was pre-recorded. At the conclusion of her evidence, the prosecution accepted that it could not prove the charges in which she was the alleged victim beyond reasonable doubt.

25Those charges were discontinued and you pleaded guilty to the single charge of attempt to pervert the course of justice. I must therefore sentence you on that charge in circumstances where the prosecution case against you effectively collapsed and in circumstances where I accept an explanation for your conduct in attempting to get Ms Fahey to change her statement was your belief that the accusations against you were false. There is also the considerable delay which has beset this proceeding.

26These considerations heavily moderate the sentence I will impose upon you, in conjunction with your plea occurring in the context of COVID-19 and in consideration also of the principles in the authority of Worboyes v The Queen.[4] You were still on a bridging visa when you were remanded in April 2019. Even after being granted bail in November last year, you went straight into immigration detention rather than being at liberty. You remain in immigration detention.

[4] [2021] VSCA 169.

27The prospect of your deportation was raised at your plea hearing. A sentence of 12 months or more will trigger mandatory deportation, although with a right of appeal. Any lesser sentence is still not the end of the matter, as you may still fail the character test. Mr Lavery, who appeared on your behalf, submitted that in the unusual circumstances of this case, and to try to avoid an adverse outcome in the application of the character test, I should sentence you to an adjourned undertaking. Mr Lavery submitted that he would have submitted a community correction order was the appropriate sentence but, being in immigration detention, you could not undertake such a sentence.

28I questioned whether I could properly have regard to the avoidance of a potentially adverse consequence in respect of your migration status. I was referred by the prosecutor to the case of R v Calica,[5] which is a decision of the Full Court of the Supreme Court of the Northern Territory. That decision reviewed authorities for various states on the issue of the relevance of deportation to sentence.

[5] [2021] NTSCFC 2.

29Its conclusions are broadly in line with the Court of Appeal authority in this State, which has held that the relevance of deportation to sentence is that: (i) the prospect of deportation renders any term of imprisonment more onerous; and (ii) in some circumstances, deportation deprives or destroys the opportunity to settle in Australia. It remains impermissible for a judge to reduce an otherwise appropriate sentence to avoid the risk of deportation. The submission that I should craft a sentence to avoid an adverse assessment under the character test is akin to this in my view and I reject the submission of defence on this point.

30I do, however, treat the prospect of deportation as a mitigatory consideration, relevant to the burden of imprisonment that you have endured, and I accept that the prospect of being deported will have caused you considerable stress while in custody, especially in circumstances where you have made a successful and productive life for yourself here in Australia.

31I have spoken about the unusual circumstances of your case and how the sentence I will impose will be heavily moderated. However, I still consider that given the seriousness of the offence, the only appropriate sentence is a sentence of imprisonment, to give proper expression to the sentencing principles of general deterrence and denunciation.

32On the charge of attempting to pervert the course of justice, you are convicted and sentenced to three months’ imprisonment. The pre-sentence detention you have already served is 973 days.

33Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), if you had not pleaded guilty, I would have sentenced you to a sentence of imprisonment of 12 months.

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