Director of Public Prosecutions v Khan

[2023] VCC 1624

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT SHEPPARTON

CRIMINAL JURISDICTION

CR 22-01973

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALISHA KHAN

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Shepparton
DATE OF HEARING:	24 July 2023
DATE OF SENTENCE:	3 August 2023
CASE MAY BE CITED AS:	DPP v Khan
MEDIUM NEUTRAL CITATION:	[2023] VCC 1624

REASONS FOR SENTENCE

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Subject:Criminal Law – sentence – guilty plea

Catchwords:              Sentencing – aggravated burglary – trafficking a drug of dependence – 19 year old offender – lower level violence – did not enter the home – no direct physical threats – youthful offender – no relevant criminal history – hardship in custody due to COVID – utilitarian value of plea during COVID – progress towards rehabilitation – Akoka time

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)

Cases Cited:Brown (aka Davis) v The Queen [2020] VSCA 60; Worboyes v The Queen [2021] VSCA 169; Akoka v The Queen [2017] VSCA 214

Sentence:Total effective sentence 133 days combined with a community correction order for 9 months; 133 days reckoned as already served; 6AAA: 12 months followed by a CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D. Caruso	OPP
For the Accused	A. Dickenson	Martin Middleton Oates

HIS HONOUR: 

1Alisha Khan, you have pleaded guilty to aggravated burglary, occurring on 26 July 2022, and trafficking the drug Alprazolam on 28 July 2022. 

Summary of offending

2The agreed basis for your plea is set out in the prosecution summary, dated 12 July 2023.

3In summary, at about 9.30 pm on Tuesday, 26 July 22, you and four others turned up at the home of Roy Braunack and Timothy Bourke in Hornsey Park, Mildura.  One of your co-accused drove you there in a Kia wagon.  Four of you got out of the wagon with weapons – you, a stick – and went to the front door.  The driver stayed in the vehicle.

4Two of the others kicked and hit the front door with a tomahawk and a machete.  After standing nearby shouting at the occupants and calling on a woman you believed to be inside to come out, you went back to the wagon.

5Mr Braunack and Mr Bourke were inside.  Hearing the commotion, Mr Bourke came to the front door, only to see the tomahawk used by your co-accused come through the top panel.  He tried to brace the door and stop you all getting in.  Mr Braunack was watching the CCTV on his phone from his bedroom.

6While the offender with the tomahawk kept hacking at the door, the one with the machete kicked the bottom panel in, stuck his head through and absurdly said, 'Come on, brother – let us in'. 

7After the machete was swung at Mr Bourke through the broken door panel, he retreated to the bedroom with Mr Braunack. 

8As you had planned, having broken the door, the three at the front door entered the house with their weapons, knowing people were inside, intending to commit an assault (Charge 1, aggravated burglary). 

9Seeing this, you left the wagon again and with a hockey stick in hand jumped the fence and headed for the front door.  As you did so, however, the others left the house and you turned and joined them, getting back in the wagon and you were all driven away. 

10Two days later, 28 July 22, police pulled over the wagon, again being driven by the same person, with you and another co-offender as passengers.  Police arrested you.  You had with you a large number of small Ziplock bags and a bottle of alprazolam, or Xanax tablets, that you later admitted you were selling (Charge 2, trafficking a drug).

11Neither of the victims have made a victim impact statement.  Regardless, I have had regard to the obvious terror they would have faced with you all breaking into their home at night with weapons. 

Procedural history

12Following your arrest police interviewed you and you admitted to being at the Hornsey Park incident.  You gave an account of what occurred that was not very different from the Crown case, save for some self-serving statements.  You admitted that you had all agreed to assaulting someone at the house and that on your arrest two days later, you were involved in selling the drugs found on you.

13You remained in custody from 28 July 2022 until bailed on 15 August 22.  That bail was revoked on 25 October 2022, when you were arrested for further offending. 

14On 18 November 2022 you were sentenced to three months' imprisonment for the 25 October matters and another matter that predated the offending now before this court. 

15While you pleaded not guilty in this case before the Magistrates' Court at committal mention, you did not contest your committal and it was set down for trial in the July 2023 circuit at Mildura. 

16You were again granted bail on 16 May 2023, pending trial but you settled the case soon after on 23 May 2023. 

17Your plea indicates that you have accepted responsibility and you are willing to cooperate with the justice system.  It also means that you have helped the court get on with clearing its COVID-related backlog of trials.  I find that your plea also represents some remorse for what you did that night. 

Personal circumstances

18You grew up in Ballarat with your older brother, mother and father.  The family home was, by your account, a caring and loving environment.  As you say, you treated each other with respect.  You were particularly close with your mother, who has supported you throughout your life. 

19You commenced primary school in Ballarat but completed your final year at Irymple, after your family relocated there.  You then attended high school in Irymple and described yourself as an average student.  You report you had little difficulty with your early schooling but later struggled due to anxiety and other mental ill health. You completed school at the end of Year 11 at an alternative education centre, while working part-time at a supermarket. 

20During 2021, a number of traumatic events occurred in your life and the significance of their impact on you cannot be overstated. 

21Your parents' relationship by that stage had disintegrated and arguments between them were constant.  Each were prescribed drugs for depression and PTSD.  Your father self-medicated with alcohol and your mother with cannabis.  They eventually separated in February 2021, leaving you 'broken, lost and confused'. 

22During this time you were also involved in a psychologically abusive relationship.  Although the relationship ended in April 2021, it culminated in a miscarriage during July 2021.  This occurred only shortly after the suicide of a close friend.  In this context you started to use methylamphetamine and Xanax regularly. 

23From December 2020 to July 2021, you were frequently admitted to the Mildura Hospital for anxiety and depression. You were prescribed antidepressant medication.  Your GP was also treating you and helping you manage your diagnosed PTSD.  You escalated your drug use in an attempt at finding a coping mechanism. 

24You were 19 at the time of this offending and you are now 20 years old.  Your first time in custody involved 133 days at the Dame Phillis Frost Centre, which I expect was a very significant experience. 

25Psychologist Christine Kennedy assessed you and provided a report dated 6 February 2023 and an addendum of 14 July 2023 (Exhibit 1).  She stated that building effective coping strategies and emotional regulation are the challenges you face in staying away from drugs long term.

26While these reports were written prior to your release on bail, they speak of your desire to rehabilitate and your insight into the role your drug abuse had in your offending. 

27On 11 April 2023, you were accepted into the Bendigo Bridge program for three months of residential rehabilitation.  The Court granted you bail for this on 12 May 2023 and you started the program on 16 May 2023.  Since that time you have taken proactive steps towards your rehabilitation. These programs are demanding and many do not make it through. 

28Andrew Carlisle of the Bridge program provided a letter to the Court dated 14 July 2023 (Exhibit 3).  He states that you have been engaged in all aspects of the program to a high standard and have displayed good insight into the behaviours surrounding your offending.  You have tested negative for alcohol and other drugs each time you have returned from approved day leave.  To your credit, you have also received an encouragement award for your progress, dated 12 July 2023 (Exhibit 2). It is clear from this material that you have successfully focused on your one-to-one treatment, goal setting and treatment planning for long-term recovery. 

29Mr Carlisle more recently provided a confirmation of your successful engagement in supervised leave on a number of days at the end of your time at the Bridge and a copy of your exit and safety plan for discharge, planned for 7 August 2023 (Exhibit 4).

30As I said, not many people can claim to have completed successfully such an intensive and long-term rehab program.  You can be proud of this. 

31The promise you held in this regard, the progress you have now achieved, have no doubt featured in the prosecution's concession that a combination sentence is suitable for you, in spite of the serious offending, and I agree.

Sentencing issues

32The maximum penalty for aggravated burglary is 25 years' imprisonment and for trafficking, it is 15 years. 

33Neither of these offences attract a standard sentence or any special categories under the Sentencing Act. 

34Regardless – and as I trust you now accept – breaking into someone's home as happened on this night is a terrible thing to do.  It is not hard to imagine the fear it would create in anyone who is inside. On this occasion it is said you only stood by and watched while the damage was done to the door.  But you were there encouraging others to do so.  That is why you have been charged as being legally responsible with them. 

35That does not mean that the law turns a blind eye to the differences in your roles.  You did not engage in the more shocking physical violence and damage at the door, nor did you enter the home, although it seemed you may have done so if the others had not exited the house when they did. You did not engage directly in physically threatening others or wield a weapon directly at them.  You were younger than them.  You have no particularly relevant prior history for behaviour like this.  As a matter of justice, all of these influence your ultimate sentence.

36It is important, however, that I punish you to some extent in a way that will send a message to others, that tough penalties will follow for others who do what you did on this night. 

37I find, however, that for all the above reasons, I do not need to give great weight to deterring you specifically from offending again or to ensuring that you have learned your lesson or to protecting the community from you.

38The prison term I will impose today will serve those purposes and in my view, sufficiently denounce what happened. 

39During your time in custody, particularly the early part, there were still some restrictions placed on you due to COVID‑19, making your time there harder than it should have been, and I have reduced your sentence accordingly.[1]

[1]Brown (aka Davis) v The Queen [2020] VSCA 60, [48].

40I find that you are well down the road towards successful rehabilitation and that your prospects are very good.  The future, of course, is not without risk and only time will tell, but you have now made a good start.

41The law does not permit me to record your days staying at the Bridge as days on remand.  But in accordance with the case of Akoka, in arriving at your total sentence I have informally weighed the time at the Bridge at a ratio of about three quarters. 

42Both the prosecutor and your counsel agreed that your sentence could be a combination of a short term of imprisonment followed by a CCO.  In all the circumstances, I accept this.  It represents appropriate leniency for you in your individual situation. 

43I have received a report from corrections (Exhibit A), who have assessed and found you suitable for such an order. You were also assessed for your need for mental health care (Exhibit B) and it is suggested that a relevant condition would be appropriate on any CCO that I impose. 

44I sentence you as follows: 

(a)   On charge 1 (aggravated burglary) – 133 days

(b)   On Charge 1, and Charge 2 (trafficking a drug) a CCO with conviction for nine months with conditions of supervision, assessment and treatment for alcohol and drug addiction and for your mental health.  I will require you to engage in judicial monitoring and first date will be at 4 pm on Tuesday 5 September 2023 by video link.

(c)   The total effective sentence is 133 days and a CCO.

45I declare that you have served 133 days pre-sentence detention and I direct that this be reckoned as a period already served under that sentence. 

46In accordance with s6AAA of the Sentencing Act, if you did not plead guilty to this charge I would have imposed a period of 12 months' imprisonment followed by a CCO.

Ancillary orders

47As to ancillary orders, I am satisfied in accordance with s78 of the Confiscation Act that the Alprazolam and the part hockey stick seized on your arrest should be forfeited and destroyed in accordance with that Act.

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