Director of Public Prosecutions v Khan

[2025] VCC 363

`

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-24-01164

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMED KHAN

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 October 2024, 17 December 2024, 18 March 2025
DATE OF SENTENCE:	27 March 2025
CASE MAY BE CITED AS:	DPP v Khan
MEDIUM NEUTRAL CITATION:	[2025] VCC 363

REASONS FOR SENTENCE
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Subject:Criminal law

Catchwords:   Recklessly cause serious injury

Legislation:Sentencing Act 1991 (Vic)

Cases Cited:Muldrock v The Queen [2011] HCA 39

Sentence:  Term of imprisonment of four years and 10 months, with a non-parole period of two years and eight months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A. Dickens	Office of Public Prosecutions
For the Offender	Mr J. Lavery	Chris McLennan & Co

HER HONOUR:

1Mohammed Khan, you have pleaded guilty on indictment to a single charge of recklessly causing serious injury.

2In sentencing you for this crime, I must have regard to the maximum penalty for the offence you have committed. The maximum penalty for recklessly cause serious injury is 15 years' imprisonment.  

3This maximum penalty reflects the seriousness with which Parliament regards this offence.

4The circumstances of your offending are set out in a document entitled ‘Summary of Prosecution Opening’ dated 17 September 2024. This is an agreed document and represents your acceptance of the elements of the offence to which you have pleaded guilty, as well as the factual basis on which I am to sentence.

5I will not repeat the entire summary as it is a matter of record, but in brief terms, the offending that gives rise to this charge occurred on 22 November 2023, at which time you were 21 years of age.    

6The victim in this matter is Cheng-Po Cheng. He was not known to you.  

The Offending

7At 9:15 pm on 22 November 2023, Mr Cheng was walking south along Elizabeth Street Melbourne. You were walking north along the same street.

8Cheng was looking down at his mobile phone and as he passed you, you bumped into his shoulder.

9Cheng turned to confront you, calling out to gain your attention as he had considered you to be impolite by not apologising. You turned to him and gestured, whilst saying “come on, come on” and then walked back towards him. As you got to within an arm's distance of him, you pulled out a large kitchen knife from your waistband and brandished it toward him. The knife was approximately 32 centimetres in length.

10Cheng turned to walk away from you as he was frightened and hoped that you would leave him alone. He backed away, attempting to cross the road to avoid further confrontation but as he did so, Cheng tripped on the gutter, causing him to fall backwards onto the road.

11You then approached Cheng as he was laying on the road. You were still brandishing the knife and raised it above your head and, in a stabbing motion, used the force of your body to repeatedly stab Cheng at least four times to the abdomen area.

12Cheng grabbed the knife and was able to push you off so that he could get to his feet and stumble to a tram stop. Witnesses waiting at the tram stop immediately scattered as you, still brandishing the large kitchen knife, came after Cheng.

13Cheng hid behind the tram stop, and you turned around and walked north on Elizabeth Street, towards Flinders Lane, returning the knife to a sheath. You began jogging towards Flinders Lane, where you turned left and then placed the knife into a storm drain.

14You then walked back to Elizabeth Street, removing your outer clothing, including your puffer jacket and head scarf, loitering inside a KFC store before returning to the area of the stabbing. You then returned to the KFC store.

15Multiple witnesses called Triple Zero. They provided first aid to Cheng until Ambulance Victoria arrived a short time later. Mr Cheng was transported to the Alfred Hospital in a serious life-threatening condition, suffering multiple deep stab wounds.

16Following the incident, Melbourne Safe City camera operators were able to track your movements and locate you.

17At approximately 9:20 pm you were located by Police hiding at the KFC store. You were arrested and transported to Melbourne West police station where you were assessed by Victorian Forensic Medical Officers and deemed to be unfit for interview.

Injuries

18Subsequent to your initial plea hearing on 11 October 2024, the Crown filed a Victorian Institute of Forensic Medicine Report dated 21 October 2024 authored by Dr Jason Schreiber, which details the extent of the injuries you caused to
Mr Cheng.

19Six stab wounds were identified. Mr Cheng suffered severe puncture wounds to his chest, stomach, pancreas, kidney, liver and bowel. His internal organs were protruding as a result of the attack. Both sides of his lung had collapsed.

20Mr Cheng required emergency surgery to repair the damage caused including the insertion of chest drains, resecting the colon and bowel, colostomy and pericardial drains. Mr Cheng needed to be resuscitated from haemorrhagic shock and required blood transfusion. He remained in Intensive Care for approximately six days in an induced coma, his condition remained stable but serious and
life-threatening. He was released from hospital on 13 December 2023.

21Mr Cheng was readmitted to hospital on 5 March 2024 for further bowel surgery and required further major abdominal surgery twice in May of 2024.

22In Dr Schreiber's opinion, the injuries Mr Cheng incurred were immediately
life-threatening, as were the ongoing complications which required subsequent major abdominal surgeries

Offence gravity and victim impact

23A Victim Impact Statement authored by Mr Cheng dated 26 September 2024 was tendered by the prosecution at your plea hearing. 

24The purpose of a Victim Impact Statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.

25Mr Cheng prepared a detailed and telling Victim Impact Statement outlining the devastating effects your crime has had on his life. He speaks to the pain and discomfort he suffers on a daily basis. He describes every movement as a struggle, which negatively impacts on both his work and personal life. He has suffered financially and psychologically as a result of your offending and speaks to being haunted by the memory of what happened. He is overwhelmed by anxiety, sadness and living in constant fear. He says that he has not had a single night of restful sleep since the offending as he wakes up “drenched in fear”. Mr Cheng says that the “constant exhaustion is a daily reminder of the nightmare [he is] living”. It is clear that the effect of your offending upon him has been both profound and remains enduring.

26This is obviously serious offending and towards the higher end of objective seriousness for an offence of this type.

27I accept that there is no evidence of premeditation or planning. However, afterwards you had the wherewithal to hide the knife and remove your outer clothing.

28The attack itself was of short duration. Nevertheless, it is simply staggering to contemplate that so much harm can be caused in so few seconds and for no real reason. It was a minor slight that prompted such an extreme response. Given multiple stabbings with a bladed instrument to the torso of Mr Cheng, your degree of recklessness would appear high. The use of a knife is inherently dangerous as this incident serves to highlight. At the time of your attack, it was you who approached Mr Cheng who was on his back on the ground and at his most vulnerable. As I have already referred, Mr Cheng suffered life threatening injuries and the consequences for him, both physical and psychological, appear to continue.

29Of course, Mr Cheng was not the only one affected by your crime. Your offending occurred in a public setting and I have little doubt that the witnesses who were exposed to your violent offending have been impacted by what they had the misfortune to observe.

Plea of guilty

30The Sentencing Act obliges me to take into account the stage at which you entered your guilty plea. This matter resolved at a Committal Case Conference at the Magistrates' Court after a number of necessary adjournments, representing a plea made at the earliest opportunity.

31Your plea commenced on 11 October 2024 and was adjourned to 17 December of that year so that the Crown could obtain further medical material and relevant assessments could be commissioned by the Court. On 17 December 2024, your plea was further adjourned to 18 March 2025 to give your legal representatives the opportunity to provide further relevant information and was then further adjourned to today's date, 27 March 2025, for sentencing. I take the delay in finalising this matter into account as an additional burden on you

32Otherwise, there is clear value in saving witnesses of the need to give evidence, particularly the victim and any onlookers, and utilitarian value in saving the community the expense of contested trial proceedings. 

33Your decision to plead guilty has additional value as it does provide certainty and finality to all parties.

34You told Dr Deacon that you were embarrassed that you reoffended within one week of being released from custody. Dr Deacon reports, “Mr Khan said he understood his actions were wrong at the time of the offence, albeit he was significantly drug affected”.

35Overall, I am satisfied that you have expressed some remorse for your offending within the limits of your own functioning, to which I will later turn. You have taken responsibility for your offending.

36These factors will all be taken into account in your favour.

Personal Circumstances

37I turn now to your personal circumstances

38Your personal circumstances have been helpfully outlined in the reports of clinical neuropsychologist Dr Linda Borg and consultant psychiatrist Dr Adam Deacon dated 2 December 2019 and 24 April 2024 respectively.  

39You were born in Sydney to parents Mohammed and Zahora and have three older sisters.  

40Your father was Pakistani and your mother is Fijian. Your mother is said to have an intellectual disability. Your parents separated when you were approximately nine years of age. You did not have a close relationship with your father following their separation. You resented him for leaving your mother, which you saw as exacerbating the difficulties surrounding her disability. Your father passed away some time ago.

41You moved to Melbourne at the age of nine. The details of your childhood are scant as you have little memory of this time; yet you do recall some involvement with Child Protection Services.  

42Growing up, upon separation you resided with your mother, however due to her intellectual disability and difficulties with the English language, your sister was responsible for the majority of your day-to-day care.

43At around the age of nine years, you were diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and were prescribed psychostimulant medication for a few years. There is also a report of a diagnosis of a condition which involves repetitive hair picking/pulling. You were also diagnosed with epilepsy in your early teens. You told Dr Deacon your seizures stopped once you began smoking cannabis.

44In 2009, you were diagnosed with a mild intellectual disability.

45In terms of your education, you attended multiple primary schools in Sydney and undertook your secondary schooling in Melbourne at a Special Education school.

46You found school boring and struggled to focus. You experienced learning and some behavioural difficulties and were subjected to bullying. You would occasionally react to taunts and engage in fighting. You left school in Year 11.

47During your youth, you would engage in offending behaviour whilst hanging around the city and feeling bored. You have been involved in the court system throughout your late teens and early adult life, spending time in and out of custody and detention.

48You have a limited employment history. You did work as a concrete polisher for a few months in 2023.

49In terms of your substance abuse history, you commenced smoking cannabis at the age of 14 years and have consistently smoked about 2 grams a day since. You started using methamphetamine at the age of 16 years, limiting your use to 3 grams a week. You report that you have experimented with MDMA but have not used that drug for over two years.

50You also admit to having previously used 'bricks' (referencing Alprazolam), however stopped after committing offences of which you had no memory. You have also intermittently used cocaine and had commenced using GHB in the lead up to your arrest. You admit to using a combination of cannabis, cocaine and GHB in the four-day period leading up to the offending in this matter.

51You have a history of smoking tobacco and binge drinking spirits. In the past, you would consume an estimate of “four bottles of bourbon and goon and Jack Daniels on weekends”. You report ceasing drinking about two years ago in order to avoid hangovers.  

52You do not have a significant relationship history.

Criminal history

53Your prior criminal history does form part of your personal circumstances.

54At now 22 years of age, your criminal history concerningly contains 13 court appearances spanning just under four years between 2019 and 2023.  

55I do not intend to recite this history in its entirety, but of relevance to the sentencing exercise before me are a number of appearances.    

56You first appeared before the Melbourne Children's Court on 11 December 2019 for charges which included threat to inflict serious injury, unlawful assault, attempted armed robbery, carry controlled weapon without excuse and possess controlled weapon without excuse. You were placed on a probation order for a period of nine months with a condition to comply with a plan for services. No conviction was recorded.

57You appeared four more times in the Children's Court jurisdiction between
7 February 2020 and 16 December 2020 for charges which included possess controlled weapon without excuse, robbery, dishonesty offences, unlawful assault and drug possession. You received a range of sentences, most notably a
seven-month probation order with a condition to engage in counselling for alcohol and illicit substance use and a four-month Youth Supervision Order with a special condition that you be engaged with the National Disability Insurance Scheme and be provided with supports prior to your 18th birthday.

58You first debuted in the adult jurisdiction on the day of your 18th birthday. You appeared at the Bail & Remand Court on 18 May 2020 for charges of possess cannabis, commit indictable offence on bail and contravene a conduct condition of bail. You received a fine of $400, without a conviction being recorded.

59You have appeared before the Magistrates' Court seven times since this date for a range of matters, including dishonesty offences, robbery, possess controlled weapon without excuse, assault with a weapon, criminal damage, unlawful assault, affray and breaching court orders - namely Personal Safety Intervention Orders, bail orders and Community Correction Orders.

60Your history reveals that you have received a term of imprisonment on five separate occasions, the longest of which would appear to be a term of imprisonment of 233 days imposed by the Melbourne Magistrates' Court on
26 April 2022 which was for charges of robbery, criminal damage, assault with a weapon, theft and commit indictable offence whilst on bail. This term of imprisonment was ordered to be served in combination with a 12-month Community Correction Order with therapeutic conditions only, including mental health treatment, assessment and treatment for drug abuse and dependency, offending behaviour programs and to participate in a Justice Plan which is specifically designed to assist intellectually disabled offenders.

61On 15 May 2023, you reappeared at the Melbourne Magistrates' Court for breaching that Community Correction Order, and for new offending in relation to charges of robbery, possess controlled weapon without excuse, and breaching a Personal Safety Intervention Order. You were sentenced to a six-month term of imprisonment in combination with a nine-month Community Correction Order with therapeutic conditions, including a requirement to participate in a Justice Plan.

62As referred to briefly earlier, you had been released from custody for about a week at the time of your offending on 22 November 2023.

63Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to the important principles of specific deterrence, denunciation, and protection of the community. Your attraction to weapons and involvement in violent offending is of obvious concern.

64Your criminal history is also relevant to the assessment as to your prospects of rehabilitation, a topic to which I now turn. 

Prospects of rehabilitation & youth

65As referred to earlier, a report has been provided authored by Dr Linda Borg and dated 2 December 2019. Whilst somewhat dated, her report found that your full scale IQ was at 59 suggesting cognitive functioning within an impaired range. I accept that this finding is unlikely to be the subject of much change given your recognised intellectual disability and the permanent nature of such a condition.

66Your verbal-based thinking skills were within impaired ranges, literacy levels at a foundation level from primary school, attentional systems severely disrupted and mental processing is impaired. Your working memory capacity is also limited and various cognitive inefficiencies impact on your ability to encode new information, meaning you have limited capacity for new learning. Dr Borg also identified limited social skills and a diagnosis of ADHD.

67Dr Adam Deacon, Consultant Psychiatrist, recognised your intellectual disability but was not of the opinion that you present with a mental illness. Perhaps somewhat obviously, Dr Deacon opined that your intellectual disability, combined with the disinhibiting impact of a cocktail of illicit drugs, was, at the time of your offending, likely to reduce your capacity to think both calmly and reasonably.  

68I have had recourse to the High Court decision of Muldrock v The Queen.[1]

[1] Muldrock v The Queen [2011] HCA 39 (‘Muldrock’).

69The decision in Muldrock goes to the causal relationship between an offender's intellectual disability and the offending behaviour.

70Whilst the language today may be different, in that decision, the High Court observed, and I quote:

“A question will often arise as to the causal relation, if any, between an offender's mental illness and the commission of the offence. Such a question is less likely to arise in sentencing a mentally retarded offender because the lack of capacity to reason, as an ordinary person might, as to the wrongfulness of the conduct will, in most cases, substantially lessen the offender's moral culpability for the offence. The retributive effect and denunciatory aspect of a sentence that is appropriate to a person of ordinary capacity will often be inappropriate to the situation of a mentally retarded offender and the needs of the community.”[2]

[2] Muldrock, [54].

71Your low intellectual functioning does make you a poor vehicle for the application of either general or specific deterrence. Dr Borg makes clear that you have limited capacity for learning. These principles will be moderated accordingly in your sentencing. I am also satisfied that your disability reduces your moral culpability for your offending. Your level of functioning does play a role in your offending as it impacts on your learnings, consequential thinking and impulsivity. On the day of offending, you describe yourself as being “high as fuck” on drugs which was likely to disinhibit you further.

72Your level of intellectual function does raise concern for how best to protect the community given the serious circumstance of the offending before this Court, your impulsivity, drug usage and your criminal history for violence and the possession of weapons.

Youth

73Youth is another relevant factor to the sentencing exercise.

74You were aged 21 years at the time of your offending.

75Whilst at the higher end of the age bracket for what the Sentencing Act1991 describes as a 'young offender', I accept that the principles relating to young offenders have relevance to your sentencing exercise.

76The added potential for young offenders to be rehabilitated is obviously in the public interest. The well-established understanding that incarceration can impair, rather than enhance, a young offender's future prospects is a principal that has long been recognised by the courts.

77In a general sense, courts recognise that a young offender may not fully appreciate the nature, seriousness and consequences of their criminal conduct and that there are obvious risks to the young offender and the community at large if a young person is 'taught the ways of a criminal' through adult incarceration.

78It is also recognised that, in general terms, the more serious an offence, the weight which would normally attach to youth and rehabilitation may lessen, giving way to some of the other relevant sentencing purposes.

79The seriousness of your offending in the context of relevant prior behaviour results in some moderate corresponding reduction in the weight to be attached to youth in the sentencing exercise. Of course, as already referred to, it is your level of intellectual function which carries real weight in the sentencing task.

80Whilst your offending can properly be described as grave and serious such that deterrence, denunciation and protection of the community remain relevant sentencing principles, it could not be said that there is no prospect of rehabilitation such that the mitigatory consideration of youth should either be ignored or extinguished.

81There remains a basis for some continued emphasis on rehabilitation in your sentencing. 

82You have now been on remand for over a year. You have been housed in the Marlborough Unit at Port Phillip Prison which caters to inmates with intellectual disability. You reported to Dr Deacon that you are coping well and are unmedicated.

83At the time of your offending you were in receipt of supports from the National Disability Insurance Scheme and were living in supported accommodation. I understand that upon your release you will again be able to access those services.  

84You have expressed a desire to return to Sydney as you did not offend whilst living in that location.

85At your further plea on 17 December 2024, after a period which had allowed for Disability Justice and Community Correction Order assessments to take place after your original plea on 11 October 2024, your counsel raised problems with your mother's health and to you having difficulty in the custodial setting. I accepted that each of these factors could have relevance to the sentencing exercise and granted a further adjournment for more time so that information could be obtained.

86Further material filed since the adjournment from October was a letter dated
13 March 2025 authored by Jenny Hosking, Assistant Commissioner, Sentence Management Division. In brief compass, this correspondence details in which prisons you have been held, the periods you have spent in protection or some form of isolation, and your access to programs and activities. You have had periods of separation from other prisoners in management units due to your behaviour and you have yourself been the subject of assault. You have been accommodated in a Specialist Disability Unit for some time which has given you access to programs and services. More recently, you have requested to remain in a management unit at Barwon Prison. Whilst this letter raises obvious concern about your ability to manage your behaviour without aggression, I accept that it also serves to highlight a certain vulnerability for you within the prison system and I do take this into account in your sentencing.  

87Whilst material in relation to your mother's health was not forthcoming, I accept that you are concerned for her poor health and this adds to the stress for you in custody.

88In my assessment, your overall prospects of rehabilitation do remain guarded, and this is largely linked to your recognised low level of functioning and how that presents plus your continued attraction to drugs. You will need considerable supports in place and a willingness to engage in any assistance and respond to it in order to reduce your future risk. 

Sentencing Submissions

89Your counsel contends that the court should consider a combination sentence, that is a term of imprisonment with a Community Correction Order that would incorporate the assistance of disability support services.

90The Crown submit that a head sentence with a non-parole period is the only appropriate sentencing disposition.

91You have a Statement of Disability from the Secretary of the Department of Families, Fairness and Housing.

92In order to be better informed, I did have you assessed for a Justice Plan by Disability Justice Coordination, Forensic Disability Programs and a Justice Plan with a range of recommendations was provided. 

93A Disability Overview Report dated 9 December 2024 accompanied the Justice Plan. That report advises that you have limited independent living skills and in the past have relied heavily on disability support staff for assistance. You need help to undertake domestic tasks and to have documents read to you. You gravitate towards antisocial peers. You receive the Disability Support Pension, but your finances are administered by State Trustees. Whilst known to disability services since 2019, your engagement with them in the past is described as poor. You are described as demonstrating limited insight into your offending. You told the author that you would not comply with any court-imposed orders and understood the consequence of non-compliance. This position was corrected by your counsel at an earlier date.

94You were also assessed as to your suitability for a Community Correction Order. An Assessment Outcome Report dated 16 December 2024 draws my attention to the fact that you have twice previously been subject to such an Order in combination with a term of imprisonment and on each of those occasions you contravened the order by conditions and by further offending. You have been assessed, however, as suitable for a Community Correction Order.   

95Section 44 of the Sentencing Act 1991 allows for the imposition of a Community Correction Order in combination with a term of imprisonment only if the sum of all the terms of imprisonment to be served (after the deduction of any period of custody that under s18 is reckoned to be a period of imprisonment already served) is one year or less. You have 491 days available by way of pre-sentence detention.

96Even taking into account your youth, plea of guilty and level of disability, I am not of the view that a combination sentence would adequately reflect all relevant sentencing considerations. I do however see merit in an extended period of supported transition for your return to the community.

97This is that moment, Mr Lavery and the Crown, are there any factual errors or matters you need to bring to my attention?

98MS ABDULNOUR:  Not that I am aware of, Your Honour.

99HER HONOUR:  Mr Lavery.

100MR LAVERY:  No, Your Honour.

Sentencing Principles

101HER HONOUR:  I do make the ancillary orders as sought for the forfeiture of the knife.

102The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.

103In sentencing you, I must have regard to a range of matters which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. I must also balance the interests of the community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.

104I have taken into account the sentencing purposes referred to in s5 of the Sentencing Act1991 where relevant to your case and the current sentencing practices for the offence to which you have entered your guilty plea.

105For the only charge on the indictment, Charge 1 – recklessly cause serious injury – you are convicted and sentenced to four years and 10 months' imprisonment.

106I reckon 491 days as having already been served by way of pre-sentence detention.

107You are to serve two years and eight months before being eligible for parole.

108Section 6AAA of the Sentencing Act1991 requires me to state the sentence I would have imposed had you not pleaded guilty to the charge. This is somewhat artificial given the relevance to your sentencing of your recognised intellectual functioning. However, if not for your plea of guilty, I would have sentenced you to a total effective term of six years and six months' imprisonment with a minimum of four years and eight months' imprisonment before being eligible for parole. 

109I thank the parties for their assistance and Mr Lavery, I will allow you to use the link if you wish to do so.

110MR LAVERY:  Thank you, Your Honour.

111HER HONOUR:  Otherwise I am closing the court at this stage, thank you.

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