Director of Public Prosecutions v Khan
[2022] VCC 2221
•7 December 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-22-00292
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALMAN KHAN |
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JUDGE: | HER HONOUR JUDGE TODD | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 November 2022 | |
DATE OF SENTENCE: | 7 December 2022 | |
CASE MAY BE CITED AS: | DPP v Khan | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2221 | |
REASONS FOR SENTENCE
Subject:CRIMINAL
Catchwords: Plea of guilty – discharging a firearm at a vehicle with reckless disregard to safety – recklessly causing injury – possessing a firearm while a prohibited person - delay - circumstances of COVID-19 pandemic - possible immigration consequences
Legislation Cited: Crimes Act 1958 ; Sentencing Act 1991; Firearms Act 1996
Cases Cited:Berichon v The Queen [2013] VSCA 319; R v Verdins [2007] VSCA 102; Bugmy v The Queen [2013] HCA 37; Worboyes v The Queen [2021] VSCA 169.
Sentence:Total effective sentence of two years and
two months' imprisonment, Community Corrections Order of
30 months’ duration, and a $100 fine.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Z. Petric | OPP |
| For the Accused | Mr T. Trood | Haitch Legal |
HER HONOUR:
Plea of Guilty
1 Mr Salman Khan, you have pleaded guilty to the following offences:
a) Charge 1 – discharging a firearm at a vehicle with reckless disregard to safety and while carrying out a serious indictable offence;
b) Charge 2 – recklessly causing injury; I note that this is the serious indictable offence referred to for the purpose of Charge 1;
c) Charge 3 – possessing a firearm while a prohibited person; and
d) A summary charge you agreed to have uplifted and pleaded guilty to, being the related summary offence of possessing cartridge ammunition while unlicensed.
2 The maximum penalty for Charge 1 is 20 years' imprisonment. The maximum penalty for Charge 2 is five years' imprisonment. The maximum penalty for Charge 3 is 10 years' imprisonment, and the maximum penalty for the summary charge is 40 penalty units.
Circumstances of the Offending
3 A summary of the prosecution opening dated 24 June 2022 and amended on 22 November 2022 was tendered on your plea and became Exhibit A. That opening is attached to and forms part of these reasons. I will refer to just some of the facts giving rise to your offending here.
4 I pause to note that your involvement in the series of events that culminate in your discharging a shot into the passenger side of the car, in which the victim in this matter, Mr Kyridacki, was sitting, commences some way into a dispute between Mr Kyridacki and two other men, Faisal Khan and Farhad Khan. Mr Kyridacki had been assaulted some time before your involvement by Farhad and Faisal Khan outside his home.
5
After this event, which evolved out of an earlier disagreement at another location, Mr Kyridacki got into a white van with members of his family and pursued Mr Faisal and Farhad Khan. During this pursuit Mr Kyridacki, via a social media site, made an arrangement to meet with Mr Farhad and
Faisal Khan in the car park in Caroline Springs.
6 There is no context to this dispute that unfolded over a number of chapters before coming to a head in the car park. It commenced at the All Star Lounge in Ravenhall, travelled to an assault outside Mr Kyridacki's home and concluded in the multiparty confrontation in and around the Caroline Springs car park. It is clear that both the original opponents, Mr Kyridacki, Farhad and Faisal, recruited others to join them at the car park. Mr Kyridacki recruited Mr El-Fahdi; the Khans, not related to you, I note, or their associates recruited you.
7 Your involvement commences with your arrival at the Caroline Springs car park as a passenger in a white Subaru. The driver of your car attempted unsuccessfully to stop the van Mr Kyridacki was travelling in by blocking its path. Another person wielded a golf club and struck the rear window of Mr Kyridacki's van. It is at this point that you opened the passenger door of the Subaru, holding a shotgun. The van Mr Kyridacki was travelling in meanwhile drove away.
8 You and your associates made pursuit, you now on foot and armed. This event can be seen in parts of the CCTV footage, which I have now viewed. You then discharged a single shot into the passenger side of the van where Mr Kyridacki was seated. This gives rise to Charge 1 on the indictment. The shotgun pellet damaged the side passenger door of the van and shattered the window. The charge of the shot damaged the dashboard and airbag cover inside the van.
9 You then handed the shotgun to Faisal Khan, who was in the Subaru and who then drove away. You then got into another car and both cars left the scene. Mr Kyridacki drove away from the area and called on nearby residents for help. Police and an ambulance arrived.
10 Mr Kyridacki was taken to the Royal Melbourne Hospital and was found to have the following injuries:
a) A series of at least five puncture type injuries to the palm aspect of his right hand at the base of the thumb; and
b) A series of injuries to the left side of his head and puncture marks over the upper chest and front of shoulder regions.
These events give rise to Charge 2.
11 A shotgun pellet was removed from Mr Kyridacki's head and another from his left shoulder, the latter requiring a small incision to achieve this which was then closed with a single suture. I have looked at the photographs, which were tendered and became Exhibit B on the plea, to appreciate the range of injuries forced to Mr Kyridacki. He was discharged from hospital without medication and with instructions to follow up with his GP in a week.
Arrest and Interview
12 Turning now to your arrest and interview. The police investigation led to you. On 7 May 2021 you were arrested at home. Police executed a search warrant and found a sawn-off double-barrelled shotgun and ammunition belt in a suitcase in the bedroom. This gives rise to Charge 3. At that time, you were a prohibited person, having been the respondent to an application which was referred to in the summary of prosecution opening in an intervention order that was later said to be a personal protection order. It was not in dispute that you were a prohibited person for the purposes of Charge 3.
13 I pause here to note that the shotgun was analysed. It was a 12 gauge break open, double-barrelled shotgun with the serial number erased. The barrels and buttstock of the gun had been shortened. The cartridge ammunition was found in a cartridge belt and consisted of five cartridges. One of the cartridges contained shotgun wad of the same type as that located in the van Mr Kyridacki was travelling in when you fired your weapon into it. At interview you exercised your right to silence.
Prior Criminal History
14
Turning now to your prior criminal history. It commenced in the
Magistrates' Court in 2015 for driving related offences and a charge of criminal damage for which you were sentenced to an adjourned undertaking. In the same year you were fined for a charge of handling stolen goods.
15 In 2017 you were dealt with for driving while disqualified and for the only offence against a person on your record, you were also dealt with for the charge of assault with a weapon and possessing a controlled weapon, classed knife, it was submitted, for which you received a fine without conviction.
16 There is nothing in your criminal history even remotely as serious as the offences with which I must now deal. This event represents a very dramatic escalation of offending out of a history that is only barely relevant to the sentence.
Nature and Gravity of the Offending
17 Turning now to the nature and gravity of your offending. Your barrister conceded, and I accept, that what you did represents very serious offending. This much must also be inferred from the 20 year maximum penalty that Parliament has fixed for Charge 1.
18
The events that brought you and the other parties together in the
Caroline Springs car park that evening are opaque. However, there is no explanation for this confrontation that would lower the seriousness of your acts within it. It was accepted that you entered these events at the request of another or others. You carried a lethal weapon. You participated wholeheartedly in a fight to which you were a late entrant, and which otherwise posed no threat to you.
19 You discharged a shotgun into the side of a van in a public place, and while the scene appears deserted from the CCTV, this was a matter of good fortune as much as anything.
20 You were in the company of others. This was a breathtakingly serious thing to do, to discharge a shotgun into a vehicle, knowing there is a person seated in the passenger seat. You were reckless as to whether this would cause Mr Kyridacki injury.
21 Your barrister submitted that your offending took place over a brief period of time, that only a single shot was fired, and luckily Mr Kyridacki was able to be discharged from hospital on the same day. I accept those submissions, but add that your offending must be categorised as a serious example of this offence.
22 You entered an established confrontation. You were under no threat. You actively pursued the van in which Mr Kyridacki was travelling. While your act in discharging the shotgun caused only limited injury to Mr Kyridacki, I find your recklessness in performing that act to be high.
23 In relation to Charge 3, being a prohibited person in possession of a firearm, I note that this offence was detected some three months after your offending on Charges 1 and 2. However, there is agreement that this was the weapon used in the commission of Charges 1 and 2, and that you had retained possession of it.
24 There is no evidence of ongoing criminal enterprise that would elevate this offending on Charge 3 into the higher category articulated in the case of Berichon v The Queen.[1] You will be sentenced separately for Charges 1 and 2, and I will be aware not to doubly punish you in these circumstances.
[1] [2013] VSCA 319.
Victim Impact
25 I must take account of the impact of your offending on your victim. Mr Kyridacki did not exercise his right to file a victim impact statement. I infer though, safely, I think, that this was a moment of pure terror for Mr Kyridacki. At the moment of impact he did not know whether you would pursue him and fire another shot, or what would happen next. His injuries, whilst superficial, were widespread, particularly over his upper torso. A shotgun pellet was lodged into the back of his head. I take the terror and the injury inflicted on Mr Kyridacki into account in fixing your sentence.
Personal Circumstances
26 Turning now to your personal circumstances. Your personal background was described as complex, dislocated, and challenging. You were 26 at the time you committed these offences and are now 27. You have been in custody since your arrest on 7 May 2021. At that time you were living with your father and younger brother in Truganina.
27 You are of Pakistani background but born in the United Arab Emirates while your father worked in that country. When you were six your mother returned home to Pakistan with you and your siblings. In all, there are six children to your parents' marriage. This return was undertaken to allow your elder sister to be married in Pakistan. Your father remained in the United Arab Emirates, returning to Pakistan for a few weeks a year.
28 Home was Peshawar, near the border of Afghanistan. In your family's life in Peshawar you were exposed to threats and intimidation, meted out by the Taliban, who saw your family as sympathetic to Western values, by reference to your father's work, and to your family's failure to follow particular conservative and religious norms.
29 This harassment and intimidation sometimes took the form of threats. You and your siblings would be killed, it was said, or your mother and sister injured with acid. Some of your relatives were killed or kidnapped by the Taliban. There was an attempt to set fire to your home. Dr Langskaill, a psychologist, whose report I will return to later in these reasons, observed that you had become desensitised to the violence you witnessed in Afghanistan.
30 In Pakistan you were exposed to regular violence outside the home, but you also witnessed significant family violence, perpetrated by your father against your mother. On one occasion your mother's injuries required hospitalisation.
31 The violence in your home was later the subject of findings by the
Refugee Review Tribunal, and I read a copy of that tribunal's judgment dated 17 February 2016.
32 Gradually, commencing with your elder brother's arrival in 2007, you and your family migrated to Australia as refugees from Pakistan. When you arrived you were 16 years old and did not speak English. You spent approximately four months in immigration detention in 2017. You went to English language school and commenced ordinary Australian school thereafter. You reached
Year 10 or 11 at high school, and started working with your brother in the carpentry industry in 2019. You later worked full time in the insulation installation industry.
33 You had a significant relationship for four years with a woman who already had a child, and for this reason your union was discouraged by your family and ultimately ended.
34 You commenced using alcohol in your late teens. You developed a cannabis habit around the age of 18 or 19 years, escalating to daily use. After the emergence of psychiatric symptoms you ceased using this drug. You have had brief experiments with party drugs, including cocaine, but did not develop any particular habits in this regard.
Matters in Mitigation
35 Turning to the matters in mitigation of this sentence. First, your pleas of guilty. At any time your pleas of guilty would earn you a substantial discount on your sentence, but at the moment when the courts are still addressing a large backlog of cases as a result of the COVID-19 pandemic, you stand to receive an additional and palpable benefit in recognition of your pleas of guilty.[2] I make it clear that, but for this latter consideration, the length of your sentence and its form would have been substantially different.
[2]Worboyes v The Queen [2021] VSCA 169 (‘Worboyes’).
36 Turning now to the mental health and Verdins considerations.[3] Two reports about your mental health were tendered on your plea. Dr Anthony Cidoni, psychiatrist, authored a report dated 2 November 2022, and
Dr Brooke Langskaill, psychologist, authored a report dated
28 September 2022. I have taken the contents of both reports into account. These reports were supplemented by mental health advice and a service report I requested prior to sentencing you.
[3]R v Verdins [2007] VSCA 102 (‘Verdins’).
37 Dr Cidoni noted you as exhibiting persecutory delusions and previously having laboured under delusions of reference transmitted through the television, commencing in around 2016. Some of the psychological assessments you underwent by video with Ms Langskaill had been, according to Dr Cidoni, affected by your paranoia and delusions, in particular, your belief that your consultation was being listened to. Dr Cidoni's conclusion is that your symptoms suggest a diagnosis of schizophrenia, though he does not arrive at that diagnosis by the end of his report. Dr Cidoni recommended psychiatric review, with a view to considering antipsychotic medication.
38 Ms Langskaill made similar observations of paranoid ideation and ideas of reference. You have never had contact with mental health professionals about these symptoms. Dr Langskaill strongly recommends, at multiple points during her report, formal and urgent mental health intervention.
39 Your barrister argued that limbs two, the condition would have a bearing on the kind of sentence imposed, and six, a serious risk of imprisonment having a significant adverse effect on your mental health, of the case of Verdins were engaged. The prosecution conceded these limbs were engaged to a degree.
40 I accept Mr Cidoni's opinion that Dr Langskaill's report was prepared in circumstances where you had minimised your symptoms in your interviews with her. It is abundantly clear from both reports that you have had, at least in the past and probably currently, significant and undiagnosed psychiatric symptoms. There was no attempt on your plea to link those symptoms to your offending and argue limb one in mitigation of moral culpability.
41 However, I accept that the form of your sentence and the risk that an extended period of imprisonment will be more difficult for you than for a person in normal health, and the fact that that imprisonment, as Dr Cidoni finds, is likely to worsen your psychotic illness and may compromise efforts to treat your symptoms. I take all this into account on your sentence.
42 In the pre-sentence mental health report the writer concluded, with a tone of some urgency, that you present with severe mental health concerns and recommends referral to your nearest area mental health service for assessment and treatment after your release from custody.
43 The writer also concludes that you need immediate or emergency mental health care follow up. One paragraph reads:
It is strongly recommended that he has mental health conditions mandated on his Corrections order, should he be granted one, to be referred to his nearest area mental health service as soon as he is released for further assessment and treatment. He should also be referred for psychological treatment to address any trauma that he may have experienced prior to arriving in Australia.[4]
[4] Forensicare Report of Brenda Hughes, Senior Registered Nurse, dated 2 December 2022.
44 I repeat here that I will refer you for urgent psychiatric review while you are still in custody.
45 Turning now to the principles articulated in the case of Bugmy.[5] You have been exposed to both private and public violence from your earliest years. Your childhood was characterised by instability, threats against yourself, your mother, and your siblings both inside and outside of your home. Nowhere was safe.
[5]Bugmy v The Queen [2013] HCA 37.
46 It was argued, and I accept, that the deprivation you encountered in your early life still resonates in your current life and ought to be taken into account on your sentence, in particular by moderating your moral culpability. The Bugmy principles also enliven however the potential for an increase in the role for community protection in your sentence.
47 When prompted on this, your counsel argued that your history does not show relentless, serious offending, as sometimes is shown in such circumstances, but rather a person who, having only recently been the subject of a mental health examination, has now an opportunity to address, for the first time, the psychological and psychiatric sequalae of disadvantage. I accept this argument has some force and I take it into account when considering the role for community protection.
48 Turning now to the possible immigration consequences of your case. You are not an Australian citizen but were living in the community with a permanent protection visa granted on 7 May 2020. You fall to be considered for a cancellation of this visa on being sentenced to a term of imprisonment of
12 months or more. Your family all live in Australia, and you face some prospect of a future deportation and a separation from them.
49 I do not speculate about how likely that is, but I accept that the prospect of your deportation is real, and creates a heavier burden of imprisonment on you than someone who does not face this risk. This fear of deportation as a result of your sentence will persist after your sentence is complete. I take it into account as a matter of mitigation in your favour.
50 You have served already a lengthy period in custody since your arrest in
May 2021 in the harsher conditions brought about by the Corrections authorities' response to the management of the COVID-19 pandemic. You have endured an increased restriction on your movement, forced quarantine,
eight days in June 2021, and frequent separate periods in quarantine each time you have moved between prison units. You have experienced frequent and unpredictable lockdowns, reduced access to programs for rehabilitation and education, and anxiety about COVID-19 infection in custody, and I apply these matters in mitigation of your sentence.
Prospects for Rehabilitation
51 Turning now to your prospects of rehabilitation. You maintain the support and affection of your family. Your mother, three sisters, and brother-in-law attended your plea hearing. Although you have significant troubles at home and in your early life, you have worked fulltime in Australia and have ongoing accommodation and family support. You have accepted responsibility for what you did, and indicated this through your plea. Despite your difficulties, you do not have a lengthy criminal history; you have the beginnings of a psychiatric diagnosis and it is the intention of this sentence to address the further diagnosis and management of that condition.
52 Your insight about your psychiatric problems, and your full acceptance of responsibility for the offending are undeveloped. For this reason, I conclude that your prospects of rehabilitation are somewhat guarded, but much better if you accept the assistance of mental health professionals. Without knowing how, or whether you will accept that medical assistance, it is very difficult to come to any concluded view about your rehabilitation.
53 I have had regard to the growing but still slight sentencing practice for offences under s 131A of the Firearms Act 1996 (Vic) and to sentencing practices for the subjects of Charges 2 and 3. No case is like yours. I sentence you in that general landscape, but my job is to do individual justice.
54 On your plea I was advised that your co-accused, Mr Faisal Khan and Mr Farhad Khan were dealt with in the following way. Faisal Khan's matter resolved in the Magistrates' Court for the charges of intentionally causing injury and affray. He had no prior criminal history and was fined $1,500 with conviction. Mr Farhad Khan's case will be determined in the Children's Court, and at the time of this sentence his case has not yet resolved. No parity argument arose out of these circumstances.
Relevant Sentencing Principles
55 Turning now to the application of the sentencing principles in your case. Although there are powerful factors in mitigation of your sentence, I will not lose sight of the seriousness of what you did and the need for this sentence to impose just punishment and to convey to the community that offences involving firearms in particular will attract lengthy terms of imprisonment. This sentence must also be a public denunciation of your crime.
56 I regard the need for community protection to be best served by your rehabilitation, and in particular your mental health treatment. There is also a role for specific deterrence in this sentence in the hope that it will teach you never to offend in this way, or in a similar way again.
57 I have had regard to the principle of totality. There is substantial overlap to the charges to which you have pleaded, and there will be substantial but not complete concurrency between the sentences that I impose.
58 It was conceded by your barrister that your serious offending will attract terms of imprisonment for each of the indictable charges. It was argued on your behalf that the purpose of the sentence will be satisfied by the imposition of a shorter than usual non-parole period.
59 In what was no doubt a considered submission on sentence, Mr Petric, who appeared for the Director of Public Prosecutions, submitted that notwithstanding the gravity of the offending it was open to conclude that a combination sentence was within the sentencing range. In considering these submissions and in light of the mental health report findings, I am drawn to the imposition of a sentence which combines imprisonment with a Community Corrections Order. However, as I made clear at the hearing, I conclude that justice demands further imprisonment before the Community Corrections Order commencement.
60 My inclination towards a combination sentence emerges as a result of balancing all the sentencing factors but particularly the Worboyes discount, the effect of further imprisonment on you in the Verdins sense, and the urgency of continuing a comprehensive mental health treatment. I have attempted to balance these matters with a continued appreciation of the gravity of this violent offending.
Disposition
61 Turning now to the disposition. On Charge 1, discharging a firearm at a vehicle with reckless disregard for safety, you are convicted and sentenced to
two years' imprisonment in combination with a Community Corrections Order of
30 months' duration.
62 On Charge 2, recklessly causing injury, you are convicted and sentenced to
12 months' imprisonment in combination with a Community Corrections Order of 30 months' duration.
63 On Charge 3, being a prohibited person in possession of a firearm, you are convicted and sentenced to 10 months' imprisonment in combination with a Community Corrections Order of 30 months' duration, and I make the same corrections order in relation to each of the three offences.
64 On the related summary offence of possessing cartridge ammunition, you are convicted and fined $100.
65 I make the following orders for cumulation. Charge 1 is the base sentence. One month of the sentence on Charge 2, and one month of the sentence on Charge 3 will be served cumulatively upon each other and upon the sentence in Charge 1. This results in a total effective sentence of two years and
two months' imprisonment, a Community Corrections Order of
30 months duration, and a $100 fine.
66 Pursuant to s 18 of the Sentencing Act 1991 (Vic) I declare that you have already served 579 days pre-sentence detention to be reckoned as already served on this sentence. Pursuant to s 6AAA of the Sentencing Act I declare that had you not pleaded guilty but been found guilty after trial, I would have imposed a total effective sentence of five and a half years with a non-parole period of three and a half years.
67 I make the orders for forfeiture and disposal as sought, noting that they were unopposed.
68 Mr Khan, you are doing a bit more time in gaol and then you will be on a Community Corrections Order when you are released, so I am going to read the conditions of the Community Corrections Order and then I am going to give you a chance to speak to Mr Trood about it in private because I need you understand everything that you are going to be required to do before I ask you whether you will consent - that is, agree to undertaking the order.
69 The Order's duration will be 30 months. You will first be subject to the standard conditions of a community corrections order. That means importantly that you must not commit any other offences that are punishable by imprisonment during the 30 month period. Mr Khan, if you get into other trouble while you are on the order you get brought back before me personally, not somebody else, but me, and you would have to be re-sentenced. We would have to start again.
70 You must report to the Broadmeadows Community Corrections Service within two days of your release from custody. You are required to advise your supervisor at the Corrections office of any change of address where you are living or working, and you must do so within two clear working days.
71 It is a term of all Community Corrections Orders is that you must submit to visits as directed, and you must obey all the instructions and directions of the community corrections officer. You are not allowed to leave the state of Victoria without prior permission and that is for the entire 30 months.
72 I attach the following special conditions to your order. You will be required to complete programs that further address your reoffending. You must report for supervision with your case manager as requested. You must submit to assessment and treatment for your mental health, and I require you to perform 75 hours of unpaid community work over the term of this order, but pursuant to s48CA of the Sentencing Act, I direct that time spent in treatment and rehabilitation programs be credited towards those hours, so you do need to do unpaid work, but if you are attending for treatment or participating in other programs, that counts towards the hours.
73 I also require you to participate in judicial monitoring. That means you have to come back to court. You can come by video or in person, on 2 October 2023 at 9.30 am to tell me how the Order is going, and I will receive a report about you on the order before that date.
74 Counsel, before I give Mr Trood a moment to speak to Mr Khan about the Community Corrections Order, are there any orders that I have missed?
75 MS McALEAR: No. That's everything, thank you, Your Honour.
76 HER HONOUR: Yes. Mr Trood, can I give you that time now?
77 MR TROOD: Yes, Your Honour. I think I need to check that order to see whether it complies with the Sentencing Act insofar as that 12 month barrier in terms of orders, so I'll do that at the same time.
78 HER HONOUR: Yes. My analysis is that the 12 months is from the day of sentence.
79 MR TROOD: Yes.
80 HER HONOUR: Yes, but please check it.
81 MR TROOD: Yes.
82 HER HONOUR: Thank you.
(Short adjournment.)
83 HER HONOUR: Mr Trood, do you have anything to raise about the form of the sentence?
84 MR TROOD: No, Your Honour.
85 HER HONOUR: Have you had an opportunity to speak to Mr Khan about his order?
86 MR TROOD: Yes, Your Honour, and as I understand it he will be consenting to such order.
87 HER HONOUR: All right. Mr Khan, you have heard your barrister say that you consent to doing the order.
88 OFFENDER: Yeah.
89 HER HONOUR: Is that right?
90 OFFENDER: Yes.
91 HER HONOUR: All right, good. I take this matter pretty seriously so when you do get released it's really important that you stick to it.
92 OFFENDER: Okay.
93 HER HONOUR: I'm going to see if there's anything I can say that might give you some help in custody with your mental health. It's really important.
94 OFFENDER: Yes.
95 HER HONOUR: Thanks. We'll just switch that background noise off. Is there anything remaining, counsel?
96 MS McALEAR: There's nothing further.
97 MR TROOD: No, Your Honour.
98 HER HONOUR: Thank you both for your assistance.
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