Director of Public Prosecutions v Khan

[2016] VCC 587

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01895
CR-15-01899

DIRECTOR OF PUBLIC PROSECUTIONS

v

NORMAN KHAN
TARAIA CAMPBELL

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2016
DATE OF SENTENCE:	9 May 2016
CASE MAY BE CITED AS:	DPP v Khan
MEDIUM NEUTRAL CITATION:	[2016] VCC 587

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Lee	Office of Public Prosecutions
For Accused Khan	Ms J. Smith	Stary Norton Halphen
For Accused Campbell	Mr W. Tighe	Haines & Polites

HIS HONOUR: 

1Norman Khan and Taraia Campbell, you have pleaded guilty to charges of aggravated burglary, false imprisonment, assault and two counts of armed robbery.  You, Mr Campbell, also pleaded guilty to making a threat to kill and five counts of theft.  You, Mr Khan, also pleaded to five counts of theft and making a threat to inflict serious injury, and a related summary charge to do with unlicensed driving.

2A detailed summary of the prosecution opening was tendered and exhibited at the plea hearing.  It will be retained on the court file.  For purposes of this sentence, I will summarise the circumstances of the offending in this way.

3On 25 May 2015, just before four in the afternoon, the two of you in company with another unidentified male went to an address in Mt Waverly.  You were unknown to the six residents who rented at that address.

4A 38-year-old man was home, a Mr Harding, and also a 57-year-old man, Mr Hong, who had arrived in Australia the week before as a tourist to visit his daughter Nhan, who resided in the house.  She was 20 years old.  He did not speak English at the time.

5You were wearing balaclavas and gloves, were armed with a sawn-off single barrelled shotgun, a knife and a tomahawk.  You smashed a window at the rear of the house and climbed through into Nhan Hong's room.  Mr Hong was in that room.

6You, Mr Campbell, grabbed Mr Hong by the throat and forced him to the ground onto his back, and while holding his throat you pushed the tomahawk blade into his head, causing a laceration and bleeding to his right eyebrow.  He was then grabbed by the back of his shirt and dragged along the floor for about two-and-a-half metres, causing bruising and scraping on his elbows, arms and knee.  One of you held the knife to his neck and caused the thin incision from the back of his neck across his throat, which caused bleeding.  This was the assault.

7Mr Hong recalls you repeatedly asking for money.  He indicated in his limited English that there was no money, and he was told not to move and had his face covered.

8You then moved through the house and found Mr Harding in his bedroom.  You, Mr Khan, held the sawn-off shotgun to his face, touching at times.  Both of you forced him to the living room with the barrel of the shotgun pressed against his back.  In the living room, he was grabbed around the neck and forced him face down to the floor with his hands behind his back.  He was told not to move, or he would be shot.

9The two of you then started to ransack the premises.  Shortly thereafter, another resident, 23-year-old Mr Singh, returned into the house and went into his room, where he found one of you searching his belongings.  He was grabbed from behind and the shotgun was pressed to the back of his by the unknown offender.  He demanded Mr Singh's mobile phone, wallet and laptop, which were handed over.  This was armed robbery.

10Mr Singh was also forced into the living room and by this time you, Mr Khan, had the shotgun.  You, Mr Campbell, then said to Mr Singh, "I'm going to kill you.  You're selling drugs to my sister".  This was a threat to kill based on an accusation you knew to be false, but used as a ruse of sorts to provide some basis for your presence in this home, and to disguise your true intent of looking for drugs and money.

11At about 4.30 pm, two more tenants returned home, 22-year-old Minh Bui and his 20-year-old girlfriend Nhan Hong.  She entered the home by the side laundry door and was confronted by you, Mr Khan, who pointed a shotgun at her and yelled at her to get on the ground, which she did.  She was then directed into the living room.  Once there, she was again told to get on the floor, which she did.  Mr Khan, you then took her handbag from her shoulder and took her phone, her passport and $100 in cash.  This was the second armed robbery.

12Mr Bui came into the house through the rear door and saw the smashed window.  He heard Ms Hong calling for him and walked to the living room, where he was confronted by the two of you.  He was told to lie next to Ms Hong.  You, Mr Campbell, started yelling at the pair, repeatedly asking them, "Did you sell drugs to my sister?"  Then one of you put the gun to Mr Bui's head whilst yelling at him and asking the two persons about $60,000 you were told was in the house.

13At about 5.30 pm the fifth tenant returned, 25-year-old Anh Phan.  She knocked on the front door and you, Mr Khan, opened it while holding the gun up to her face.  You said to her, "Get inside and sit down, or I will shoot you".  She too was held in the living room.  She was asked to hand over her phone.  You, Mr Khan, then began interrogating her, "Where's the money?  Where's the gear", which you clarified meant drugs, ice, meth or heroin.

14You, Mr Khan, then collected various identification documents from the victims, including driver's licenses, bank card, passports, Medicare cards, and these items were photographed with Ms Phan's phone and then emailed to a Gmail email account, which was done in order to further intimidate and scare those people.  The third male with you was removing items from bedrooms and taking them outside.

15This false imprisonment went on for about four hours.  You, Mr Khan, were armed with a shotgun, and you, Mr Campbell, were armed with a tomahawk.  At some point you removed your balaclavas.  During the search, you found the keys to Mr Harding's car.  Before leaving, occupants were told by you something to the effect that their families would be hurt and they would be hurt, if they tried to follow you or call the police.  This is your charge, Mr Khan, of making a threat to inflict serious injury.

16The two of you then left the scene in Harding's car without about $2,500 in stolen cash.  Your accomplice left in the vehicle you had arrived in, taking also four mobile phones, $2,400 in cash, two laptops, an Apple iPad Mini and other electronic equipment which belonged to various of the residents.  These are the subjects of the theft charges.

17Police attended at about 7 pm and about ten minutes later the two of you were intercepted on the Monash Freeway, as a result of your driving, Mr Khan.  You were arrested.  Parts of the shotgun and the tomahawk were found, together with Vietnamese banknotes.  The balaclavas, the gloves were also found.  The stock of the shotgun was found under the driver's seat at a later stage.

18Mr Khan, you were interviewed and asked if you wanted to make a statement.  Apart from having answered no comment, the statement you chose to make was, "Yes, I'm coming back for them".

19Hidden in your sock, Mr Campbell, police later found $1,120, and you, Mr Khan, had $650 in your underwear.  Those sums also belonged to the victims of the aggravated burglary.

20At the time of driving you, Mr Khan, were not the holder of any license.

21Following these events, most of the victims relocated due to fear.  One of those residents provided the court with a victim impact statement.  Mr Singh attested to his fear and apprehension, which has deeply affected his serenity and sleep.  He has had difficulties with concentration and is still fearful of further repercussions arising from these events.  He lost a considerable part of his few resources, like his phone, few clothes and $700 in cash.  He is a student with a part time job, and these thefts have had a significant impact, none more pointed than the theft of a hard drive which contained photos and memories of his late younger brother and late best friend.

22This is serious offending.  The maximum penalty for aggravated burglary is 25 years' imprisonment.  This penalty demonstrates the serious nature of such offending.  These events, in my view, are a serious example of this type of offending, lying probably in the mid-range of offending of this type.

23There can be little doubt that your conduct seriously compromised the right of people to feel safe in their homes.  The invasion of someone's home; the violence coupled with weapons; the use of disguises; the use of threats and imprisonment are intolerable and utterly unacceptable behaviour.  Such offences are unfortunately prevalent, and generate fear and apprehension in the community, which rightly expects that the court will denounce such behaviour and the consternation that it causes.  The community expects the court to denounce such criminality by the imposition of just punishment, which will deter generally those likeminded to commit such offences.

24False imprisonment also carries a significant maximum of ten years.  This offence was really more closely and particularly related to what occurred inside the home, together with the armed robberies, the threats and the thefts.  They will be dealt with by large concurrency, because I wish to avoid any sense of double punishment, but a small measure of cumulation must follow in recognition of the separate and individual offences committed in some cases.

25I take into account your personal circumstances.  You, Taraia Campbell, have a prior criminal history which begins at age 17 in the Children's Court, where you were placed on probation for robbery, recklessly cause injury and theft of a car.

26In 2013, you came before a Magistrates' Court for use and possess cannabis.  The case was adjourned and in 2014 you were placed on a bond without conviction to pay $1,500 to the court fund and to complete an anger management course.  This was only four months after the expiry of that bond in January 2015.

27You, Norman Khan, have a prior for robbery in 2013 in the Children's Court when you were 18, and for which you were placed on a bond.  In 2014 at age 19, you were placed on a community corrections order for 12 months, an order which as at the date of these offences was still on foot.  That was for affray, recklessly cause serious injury, theft, and fail to answer bail.

28Mr Khan, you are now 21 years old.  You were supported in court by your mother and other family members.  I take into account your background.  You were born in Sydney, your father is from Pakistan and your mother is a Russian Chinese.  You have a younger sister.  You settled in Melbourne when you were very young.  Your childhood was chaotic and abusive, with your father enforcing a very strict and severe code of conduct with violence.  You found this violence deeply distressing, and it left you often in a state of fear and resentful rage.

29In your late teens, you went to live with an uncle in Sydney, but your mother begged you to return.  She gave impressive evidence of the impact of the violence upon you.  Your social-educational behaviour was affected, leading ultimately to the use of drugs from an early age, from which you graduated to amphetamine use by the age of 14.  She told the court your father was not interested in you and actively discouraged you from profitable activities like sport.  Your relationship deteriorated and your alienation from him has been significant and longstanding.

30Your mother impressed as a devoted and caring woman who will support and assist you into the future, and her presence in your life is a positive factor.  Your descent into criminality is marked by you leaving school without significant academic achievement, and as the drug use took hold around age 18 you found yourself in court for serious offending.  You had already faced a robbery count in the Children's Court in March of 2013.  Later, you were placed on a community corrections order, as I have said, and you had not yet completed it when you committed these offences.

31During a period on bail leading to the court sentence you had attempted to attend upon drug rehab efforts on two separate occasions, but one was too unstructured and another too rigid, and both efforts failed.

32The affray concerned a violent incident at a rail station upon a railway employee who received serious injuries.  Not only did you reoffend in very serious circumstances, you completed only five hours of the 270 which had been ordered.  You had behavioural difficulties at school which led to expulsions.

33A very helpful and insightful report was written by Patrick Newton, forensic and clinical psychologist, on your behalf.  You oscillate between states of moody unhappiness and depression to resentment towards others.  Your ability to manage your emotions has been affected so that you have difficulty in coping with life's stresses, and your distress tends to manifest itself through volatile and uncontrolled behaviour and feelings.  You would regularly fail to consider the full ramifications of your actions, with poor judgment and impulsive demeanour.  You would intuit threat and danger where, objectively, there was none and you would tend to gravitate to other similarly disaffected with the intensity of your sense of insecurity.

34In this context, Mr Newton opines that the adult prison system is likely to reinforce these tendencies, leaving you relatively susceptible and vulnerable in a prison environment, and I take this into account.  He has diagnosed an adjustment disorder with mixed disturbance of emotions and conduct, due to your compromised personality development.

35Your prognosis for long-term, positive engagement in society is likely to be poor according to Mr Newton.  This is a relevant factor when considering your prospects of rehabilitation.  Although your severe methamphetamine use disorder is in early remission, the combination of these disorders would require significant, long-term intervention.

36It was argued that the circumstances of your dysfunctional background are explanatory of your drug use, which I accept, and that because of it, general and specific deterrence should be moderated.  There is a clear tension in considering your background between the called for moderation and the context in which is raised.  That is, a very serious criminal course of conduct.  It is argued that the need for rehabilitation becomes, in these circumstances, an imperative, and that your placement in adult prison must be viewed in a framework of decision-making of compromised moral reasoning on your part, which would moderate moral culpability.

37In the context of a youthful offender like you, I generally agree with these propositions, even if Verdins is not relied on in its causative sense, but is relevant to considerations as to the impact of imprisonment upon you.

38However, in the context of the submissions as regard combining limited imprisonment with a community corrections order, by relying in effect on your youth and everything that flows from that classification, in my view the degree of criminality of the offences required, and the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community become more prominent, and the weight of your youth is correspondingly reduced.

39I make clear that this is not a case in which prospects of rehabilitations are nil or all but extinguished, and so the rehabilitative aim must remain relevant to the sentence and taken into account.  But such purposes must be subjugated or take a backseat to considerations of specific and general deterrence.  This is because I consider the offending of such nature and prevalence that deterrence and denunciation must be emphasised.

40In this instance, the question is whether such offending can be dealt with by a sentence of modest length, coupled with a community corrections order.  It cannot, in my view.  I have considered this option and am of the view that that combination is insufficiently demonstrative of just punishment in this case.  I will moderate the impact of adult imprisonment by a significantly shorter period of imprisonment, which in my view is justified.

41I intend, therefore, to impose a non-parole period, leading to which the parole board will be able to tailor conditions as they appear to be relevant at the time.  This period is one which must be tailored to minimise the risk that antisocial tendencies may be made worse or impaired by the impact of reclusion in adult prison.  Nevertheless, my view is that a sentence to a term of immediate imprisonment is inevitable in your case.

42I take into account your plea of guilty.  A degree of remorse was expressed to Mr Newton, and I accept that you have begun to reflect on your conduct leading to your plea.  This also has a utilitarian value in having avoided a trial, which I take into account.  That is the case in relation to both of you.

43I take into account a letter written by your sister, Sarah.  A tertiary student, she is married.  She confirms your background and the effects of drug use on you.  She is supportive of you.  Your uncle also wrote to the court.  He reflected on the shame brought upon your family that you expressed to him.  He described these offences as out of character.  He offers his mentorship for the future.

44Your mother also wrote a letter, apart from her evidence, and this confirms much of the material and background, and reiterates her love and support.

45Taraia Campbell, you are now 22 years old, having turned 22 in February.  It was conceded on your behalf that your offending was serious, a high level home invasion which would have been terrifying to the residents and very frightening for them.  You had taken cannabis and ice that day, but it was also conceded that your behaviour in the house was unacceptable and defied belief.

46It was fairly admitted that the repeated questioning about selling drugs to your sister was a furphy.  It was not something you or Mr Khan had a genuine belief about.  On the contrary, you undertook this enterprise having been told you would find money and drugs in this soft and vulnerable target.

47It was agreed by your counsel that this home invasion had been planned, demonstrating premeditation and preparation which involved going there in the afternoon, a propitious time of day, carrying serious weapons, wearing disguises and gloves and displaying a violent and threatening disposition once inside.  These matters were all properly conceded.

48I take your plea into account, and its utilitarian aspect as I have said, and that will attract and appropriate discount.  It was made at an appropriately early stage and you have expressed regret and remorse to at least one person who wrote to the court on your behalf, and when the plea is considered I accept you do have some insight into the foolishness of your actions.

49I take your background into account.  You are from a Maori family, with your parents having come from New Zealand in 1985.  They have worked consistently since arriving and setting in Doveton.

50Your father is only 56 years of age, but he has been diagnosed with onset dementia, reported to be drug, alcohol and violence-induced, linked in part to a serious assault upon him when he was young.  Your mother, Trieste, is 48 years old.  She too has had a long history of employment.  You have two brothers and two sisters.

51You attended secondary school to year ten, with your best achievement being in relation to music, having achieved grade four in the alto sax.  You commenced an apprenticeship after some work as a labourer at abattoirs, and then going to cut price kitchens, where you began sweeping floors.  You completed this four year course, qualifying as a cabinet-maker in demonstration that you can apply yourself to positive endeavours.

52You were exposed to domestic violence in the home from a young age.  This led to some time spent away from home and your mother carrying the major burden of raising you and your siblings.  This came to an abrupt end when your mother found drugs in her vehicle and asked you then to leave the family home, this occurring only a week-and-a-half prior to the offending.

53You smoked cannabis from age 14, and in 2015 you started using ice and alcohol.  You have a prior criminal record which includes appearances in the Children's Court.  I have outlined them before.  I take these priors into account.

54Although you have had contact with the criminal justice system, it is no more than one would expect, given your background.  But you have graduated into very serious offending, and at breakneck speed.  This does not augur well for your prospects of rehabilitation, but I am not prepared to find they are poor or guarded.  Rather, given some greater maturity, your capacity for work and the support of your mother and siblings may well enable you to make something of yourself in society.

55You have a pending matter which relates to a breach of an intervention order, offences in November 2015 which involve an allegation of an assault, which is contested.  While on bail you have been working as a cabinet maker and have lived at home in a relatively stable environment.

56You have been attending every Monday since January to a youth mentoring program in an effort to reconnect to your background and culture, as well as physical training.  Jeremy Nikora, who works for Frankston Council, has written a letter about his role as a youth mentor with the Maori community, and your attendance upon a program which fosters a return to community, family and cultural background.  He writes of your desire to change and reconnect to Maori links in order to strengthen your sense of identity and feeling of disconnection.

57Helen Anderson, an old family friend, has also written, attesting to the beginning of some change in attitude and behaviour, your continuing effort at work and connection to your family.

58Adamanis, your employer, has also provided a reference, in which he attests to your good work ethic and future.

59Finally, your mother has also written a letter.  She has informed the court of your background in terms of early medical issues, your positive progress through primary school and your practical rejection by your father, including physical punishment, police attendances and domestic violence upon you and her.  She noted your descent into drinking and drug-taking in a moving and honest appraisal of your character and potential.  She remains supportive and will no doubt play a very important role in your future reclamation.  I take all of these written expressions of support into account.

60It was submitted on your behalf, as with Mr Khan, that when I consider all of the relevant considerations, a community corrections order should be imposed.  In the written submission, the initial position was put that a community corrections order could be imposed without the need for any further term of imprisonment.  That was not the position ultimately put at the plea, where it was submitted that I should impose a two year term with a community corrections order.

61There were submissions made as to the appropriateness of a non-parole period, and of a non-declaration as to pre-sentence detention to achieve certain aims.  But each of these matters were directed to the central submission that the real question was whether, in the circumstances of your offending, such an order could be the disposition which best reflects and responds to the synthesis of all the relevant matters to be taken into account.

62The matters raised by the Court of Appeal in Boulton were reiterated by both counsel, as was the aspect of the effect of the imprisonment, which ultimately are not to the community's advantage, nor to the offenders'.  I have considered these matters at some length, and I have endeavoured to answer the question of whether a sentence of imprisonment can be regarded as the only option, when I consider all the factors relevant in this matter.  I have concluded that it is.

63This does not mean that I am not painfully aware of the need not to extinguish the hope which the court must always promote for the rehabilitation of young offenders.  Indeed, the youth of each of you I consider to be a very significant matter, which will motivate what I consider to be a merciful disposition.

64However, the nature of this offending in my view is such that imprisonment must inevitably follow.  Despite the fact that imprisonment can be a blunt instrument which potentially entrenches behaviours at odd with a pro-social life out in society, and despite the fact that a community corrections order can be punitive and restrictive in nature, the limitation placed on a combination sentence means that such a disposition would not be a just sentence under the circumstances.

65Reclusion should not crush future hopes, but it provides in this case the only adequate response by the court as it endeavours to deter, to denounce and to punish.  Both of you please stand.

66Norman Khan and Taraia Campbell, on the counts common to both of you - this is the court sentence on Count 1 of aggravated burglary - you are convicted and sentenced to five years' imprisonment.

67On the false imprisonment, Count 2, you are convicted and sentenced to four years' imprisonment.

68On the assault count, Count 3, you are convicted and sentenced to two years' imprisonment.

69On the armed robbery, Counts 4 and 6, you are each convicted to four years' imprisonment for each count.

70On each of the five charges of theft, Counts 7, 8, 9, 10 and 11, each of you are convicted and sentenced to one year imprisonment on each.

71Mr Khan, you will also be sentenced on making a threat to inflict injury, Count 12, to six months' imprisonment; and on driving unlicensed you will be convicted and sentenced to one month imprisonment.

72You, Mr Campbell, on a threat to kill, Count 5, will be convicted and sentenced to nine months' imprisonment.

73In terms of cumulation, I order that two months on Counts 4 and 6, each of them; two months on Counts 2 and 3 be served cumulatively upon Count 1 of the aggravated burglary, being the base sentence, making a total of five years and eight months.

74I order a non-parole period of three years and seven months.

75But for your plea, each of your sentences would have been seven-and-a-half years with a non-parole period of five years.

76I note that you, Mr Khan, have served 127 days by way of pre-sentence detention, and you, Mr Campbell, have served 50 days by way of pre-sentence detention.  I will note those days in the records of the court.

77I have signed orders for compensation in relation to the thefts.  I have signed orders in relation to disposals of various property, as well as forfeiture orders.

78And I have signed 464ZF orders for the taking of a biological sample from you Mr. Campbell.  The police officer authorised to do so will ask you for the taking of scraping from the mouth.  It is not a painful procedure.  If and when you are asked for that procedure, you do not consent, the authorised officer can use reasonable force to take a blood sample from you.  I have signed this order.

79Are there are any other others?  Is the cumulation and concurrency clear?  Where I have not said anything, and that is making it clear in relation to the theft charges and in relation to the driving charges, I have made those matters concurrent.

80COUNSEL:  As the court pleases.

81HIS HONOUR:  Yes, you can remove Mr Khan and Mr Campbell, thank you. 

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