Director of Public Prosecutions v Khan
[2025] VCC 614
•16 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
CR-23-00688
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AJMAL KHAN |
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| JUDGE: | HIS HONOUR JUDGE KELLY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 April 2025; 10 April 2025 |
| DATE OF SENTENCE: | 16 May 2025 |
| CASE MAY BE CITED AS: | DPP v Khan |
| MEDIUM NEUTRAL CITATION: | [2025] VCC 614 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Rape – Attempted Rape – Jury verdict – Mid-range offending – Opportunistic – Overpowered victim and ignored her attempts to resist – Good prospects of rehabilitation – Isolated in prison – Verdins – PTSD – Major depressive disorder – High risk of deportation – Serious sex offender declaration
Legislation Cited: Sentencing Act 1991 (Vic); Migration Act 1958 (Cth); Crimes Act 1958 (Vic)
Cases Cited:Jurj v The Queen [2016] VSCA 57; R v Verdins (2007) 6 VR 269; Guden v The Queen [2010] VSCA 196; Brown v The Queen (2019) 280 A Crim R 257
Sentence:Total effective sentence of 5 years gaol with a non-parole period of 2 years 7 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T. Crouch (Plea) | Office of Public Prosecutions |
| Ms S. Naimo | ||
| (For Sentence) | ||
| For the Accused | Mr H. Moodie | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Ajmal Khan, you have been found guilty by jury of one charge of attempted rape and two charges of rape.
2The maximum penalties for these offences are as follows:
(a) attempted rape – 20 years' imprisonment;
(b) rape – 25 years’ imprisonment.
3Pursuant to Part 2A of the Sentencing Act 1991 (Vic), if sentences of imprisonment are imposed for Charge 1 and 2 you fall to be sentenced as a serious sexual offender in relation to Charge 3. The prosecution has not sought a disproportionate sentence pursuant to s 6D of the Act.
Summary of offending
4You met the victim (‘SH’) in this matter, on a dating app on or around 23 December 2021. You exchanged phone numbers after a few days and started using WhatsApp to communicate with each other.
5On 25 December 2021, you discussed meeting in person. You advised her that you wanted to meet her for sex, but she said that this would not occur. Arrangements were made for you to attend her house on 26 December 2021.
6When you arrived at her house at around 7.20 pm you sat with her in your lounge room. After some time, you asked if you could kiss her. She said, 'Yes, but that's it'. You turned to face her, placed one hand on the head rest of the couch and lifted her dress up with your other hand. You tried to put your hands inside her underpants. She pushed your hands away and said ‘no’. You tried again several times, and she kept saying ‘no’.
7You asked her if you could show her your penis. She agreed but reiterated she would not have sex with you. You both went into her bedroom. She undressed with your help, but she refused to let you take her underpants off. You pushed her onto the bed, exposed your penis and laid on top of her. You tried to remove her underwear several times, but she refused and pushed you off each time.
8You grabbed her wrist and held it down. You pulled her underpants to the side and tried to insert your penis. SH said ‘no’ while you did this. This offending is the subject of Charge 1, attempted rape.
9You inserted your fingers into her vagina. This caused her pain and she told you that you had hurt her. This offending is the subject of Charge 2, rape.
10You then inserted your penis into her vagina. She kept trying to push you off, saying ‘no’ repeatedly. This offending is the subject of Charge 3, rape.
11You apologised to her several times during and after these episodes. You showered and left her house to attend your work site.
12SH contacted a friend and told him what had happened. He suggested she report the matter to police. At about 7.42 pm that evening she contacted Mernda police station.
13You were interviewed by police on 11 January 2022.
Circumstances of offender
14Your personal circumstances are set out in the report of Ms Gina Cidoni dated 29 March 2025. You were born in Pakistan, one of four brothers. Your father migrated to the United States when you were 10 years old. You were married in 2015 and you have a son and a daughter. You migrated to Australia in 2019, citing persecution by the Taliban. You completed a Bachelor of Science in Pakistan. Since your arrival in Australia you have held several jobs including cleaning, Uber Eats, Uber X and security services.
Defence Submissions
15Mr Moodie on your behalf conceded that a term of imprisonment with a non‑parole period is inevitable, however submitted that this ought to be sensibly moderated, having regard to the objective gravity of the and your mitigating circumstances.
Prosecution Submissions
16Mr Crouch for the prosecution submitted that your offending is serious, noting that you are to be sentenced as a serious sex offender for Charge 3.
Gravity of Offending & Moral Culpability
17Mr Moodie submitted that your offending is at the lower end of the scale. He referred to the aggravating factors identified by the Court of Appeal in Jurj v The Queen.[1] Addressing them, he submitted that:
(a) your offending was not premeditated;
(b) you acted alone;
(c) your offending was quick and soon over;
(d) you did not use violence or threats;
(e) SH was not subject to humiliating or degrading conduct;
(f) your penile penetration was brief and only the tip of your penis entered her body;
(g) SH did not have any special vulnerabilities, she was not intoxicated or cognitively impaired; and
(h) you repeatedly apologised immediately afterwards.
[1][2016] VSCA 57.
18Mr Crouch submitted that your offences are in at least the mid-range of seriousness. The offence was committed in your victim's home, you ejaculated inside her vagina, and by its verdict the jury must have accepted that you resisted when she tried to push you away. Mr Crouch argued that the objective gravity of your offending is increased because you physically overpowered your victim.
19Your offending is at the lower end of the mid-range. It is aggravated by the fact that you did not use a condom and you overcame SH's resistance, but you were not violent, aggressive or demeaning. The episode was very brief and you were immediately and persistently apologetic.
Victim Impact Statement
20I was provided with a victim impact statement by SH dated 20 November 2024. In it, she expressed regret for letting you into her home. She has felt anger, fear, anxiety and hopelessness. She described the impact your offending has had on her relationship with her son, observing that he had become the adult in the house, obliged to care for her in the wake of your offending. She has become less trusting; she compulsively checks her cameras and ensures her doors are locked. She concluded by writing of her desire to celebrate Christmas again and to reclaim her life.
Prospects of Rehabilitation
21Mr Moodie submitted that you have decent prospects of rehabilitation. He cited your lack of criminal history and submitted that your offences are at the low to mid-range of seriousness.
22I received a character reference from Fazal Wahad dated 2 March 2025. He wrote that he has known you for many years. He wrote of your reputation in the Pashtun community, where he says you are respected and known for your commitment to supporting others. He writes that you have contributed to several community initiatives, such as blood donation drives and organising community gatherings. He says that you have a genuine desire to make a positive contribution to society.
23I also received a character reference dated 4 March 2025 from Qaisir Khan and Saeed Ullah, who are the president and vice president respectively of the Joint Australian Rorwali Grand Association. They observe that you are a kind, helpful and valued member and volunteer. They describe you as generous and selfless, pointing to your contributions during Ramadan in particular. They underscored your contributions to the Pashtun community and expressed concern for your wellbeing.
24Mr Crouch submitted that your prospects of rehabilitation are guarded, citing your lack of insight. Post-verdict you have maintained your account that the sexual interaction between you was consensual. In addition, Ms Cidoni identifies risks to your rehabilitation including your untreated mental health issues, poor custodial adjustment and an absence of community support.
25Ms Cidoni ultimately assessed you as a low risk of sexual and violent re-offending, having regard to your lack of criminal history, your non-history of substance abuse, your history of pro-social behaviour and previously stable family relationships.
26Your prospects of rehabilitation are good. I accept that you are a low risk of sexual or violent reoffending. I also accept that the principal impediment to advancing your rehabilitation in prison has been the unavailability of a Pashto interpreter.
Verdins
27Mr Moodie submitted that prison has been keenly isolating and confronting for you. Your incarceration has worsened pre-existing mental health issues such as insomnia and anorexia, which first developed in Pakistan when you were pursued by the Taliban. Ms Cidoni referred to mental health care plans by Dr Kieran Patel dated 30 June 2022 and 24 October 2024, as well as consultation notes by psychologist Ms Fariba Kavianpour. According to those documents, you were diagnosed with an adjustment disorder with anxious mood in 2022, closely linked to your refugee experience and your fears for your family in Pakistan. Dr Marion Bales, your treater at the time, in her report dated 16 June 2020, writes that you appear to be suffering from significant depression and post‑traumatic stress disorder (PTSD).
28Ms Cidoni agrees that you have PTSD and a major depressive disorder. She noted your history of frequent nightmares, auditory hallucinations and chronic insomnia. You also report hearing voices, including children playing or adults speaking, which you find deeply distressing. You spend most of your time in custody alone in your cell. You told Ms Cidoni there is no one else in your prison who speaks Pashto. You remain without psychiatric treatment, despite your escalating symptoms, due in part to the lack of available interpreters.
29I accept that your experience in custody has been harrowing and miserable. You are isolated and alone. You are separated from your family. You have limited community supports here in Australia. I accept that limbs 5 and 6 of Verdins are fully engaged in your case.[2] I intend to reduce your sentence to reflect that due to your PTSD your sentence will weigh more heavily on you than a person in normal health. I also accept that there is a serious risk that imprisonment will have a significant adverse effect on your mental health.
[2]R v Verdins (2007) 6 VR 269.
Risks of Deportation
30You applied for a refugee visa on 16 July 2019. Your application was refused on 28 August 2021, and you initiated a review of this decision in the Administrative Appeals Tribunal on 30 August 2021. Your review has yet to be heard. You were granted a Bridging A visa by the Department of Home Affairs while your review is pending.
31Section 501(3A) of the Migration Act 1958 (Cth) mandates visa cancellation where an offender is sentenced to more than 12 months' imprisonment and where they fail the character test. The Minister has the power to revoke cancellation.[3] That can be done where an offender passes the character test or where there is another reason why the decision to cancel should be revoked.
[3]Migration Act 1958 (Cth), s 501C.
32Whilst I am not permitted to anticipate any executive action in your case, it is highly likely that your visa will be cancelled and you will be deported. You have been found guilty of serious sexual offences. Mr Moodie relied on the case of Guden to submit that the prospect of your deportation ought to be considered in the following ways:[4]
(a) you will suffer real hardship in Pakistan, where you experienced assaults, threats and attempts on your life;
(b) your fear of deportation makes your time in custody more onerous;
(c) you will suffer the hardship of losing the opportunity of settling in Australia;
(d) you will be in grave danger of reprisals from the Taliban.
[4]Guden v The Queen [2010] VSCA 196.
33In response Mr Crouch submitted that it was unlikely that you could settle in Australia, given your refugee application had been refused. He warned against attaching too much weight to the threat posed by the Taliban upon your return to Pakistan, again noting that your refugee visa had been denied. I do not know why your refugee visa was refused, but I accept that you intended to settle in Australia to make a life for yourself and to have your family join you. I accept that the fact that you will no longer be able to do so is a consequence of this offending that weighs very heavily on you. I also accept that you have a genuine fear of harm, or worse, if you are deported to Pakistan and that disquiet renders any sentence you serve more oppressive and anxiety‑inducing. I intend to discount your sentence to account for this additional burden.
Sentencing Principles
34Charges 2 and 3 are standard sentence offences. The standard sentence for rape is 10 years' imprisonment.[5] In fixing your sentence for the rape charges I am guided by the principles in Brown v The Queen.[6]
[5]Crimes Act 1958 (Vic), s 38(3).
[6]Brown v The Queen (2019) 280 A Crim R 257, 260.
35Pursuant to s 5 of the Sentencing Act, the purposes for which you are to be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in the future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
36I must also have regard to s 6D of the Act, which obliges me to regard the protection of the community as the principal purpose for my sentence on Charge 3, for which you are to be sentenced as a serious sexual offender.
37Your offending against SH was disrespectful and opportunistic. You overpowered her and ignored her attempts to resist you. You appear to have been unable to control yourself. General deterrence and denunciation have central roles to play in your sentence. Others in the community need to know that persisting in the face of resistance will result in forfeiting their liberty. I have had regard to the principles of proportionality and totality in fixing the head sentence. I intend to leave the door to your rehabilitation open by fixing a non‑parole period lower than I would otherwise have done. I note the combination of circumstances peculiar to you which will make serving your sentence especially oppressive and I have reduced your sentence to account for these effects.
38Pursuant to s 11A(4) of the Sentencing Act a, court must fix a non‑parole period of at least 60 per cent of the relevant term if that term is less than 20 years unless it is in the interests of justice not to do so. In your case, I have determined that it is in the interests of justice to fix a non‑parole period of slightly less than 60 per cent. I have done so because of your prior good character, your positive prospects of rehabilitation, the intense isolation you will encounter in prison as a Pashto speaker with no peers and your psychological disorders rendered unamenable to effective treatment due to your poor English language proficiency.
Sentence
39On Charge 1, attempted rape, you are convicted and sentenced to three years' gaol.
40On Charge 2, rape, you are convicted and sentenced to four years' gaol.
41On Charge 3, rape, you re convicted and sentenced to four years' gaol.
42The sentence on Charge 3 is the base sentence. Six months of Charge 1 is to be served cumulatively upon the sentence on Charge 3. Six months on Charge 2 is to be served cumulatively, producing a total effective sentence of five years. I fix a non‑parole period of two years, seven months before you are eligible for parole.
43I need to check with the parties. I have 213 days of pre‑sentence detention.
44PROSECUTOR: Your Honour, our calculation was 184 days.
45MR MOODIE: I agree with that, Your Honour.
46HIS HONOUR: A hundred and eighty-four?
47MR MOODIE: Yes.
48HIS HONOUR: Very well. You have served 184 days of pre‑sentence detention and I declare this as time served against your sentence.
49Pursuant to s 6F(1) of the Sentencing Act, I declare that on Charge 3 you are sentenced as a serious sex offender.
50Are there any ancillary orders sought?
51PROSECUTOR: No, Your Honour.
52HIS HONOUR: Very well.
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