Director of Public Prosecutions v Khan

[2019] VCC 1643

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01694

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL KHAN

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2019
DATE OF SENTENCE:	10 October 2019
CASE MAY BE CITED AS:	DPP v Khan
MEDIUM NEUTRAL CITATION:	[2019] VCC 1643

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hammill	Office of Public Prosecutions
For the Accused	Mr R. Alexander	Buscombe & Madden Lawyers

HIS HONOUR: 

1Michael Khan, you have pleaded guilty to one charge of recklessly causing injury, and one charge of theft.

2The circumstances of those crimes can be briefly outlined.  On the evening of 18 March 2017, you were with co-accused Steven Hughes, walking in a carpark in central Ballarat.  The victim asked for a lighter.  A heated discussion then followed about drugs.  You have said that you and your co-accused were in the vicinity to meet the victim to purchase drugs.

3In any event, a heated discussion followed about drugs, and the victim was assaulted with headlocks, punching and kicking.  The victim's bum bag was then unclipped and stolen.  It included his wallet and phone.  I saw photographs of his injuries.  They were not insignificant, together with the fact that he was that he was rendered unconscious.

4You and the co-accused then ran away.  You were followed by brave civilians who kept you under their eye as they called the police.  You were then arrested.

5You faced more serious charges on a trial indictment.  In front of the jury,
on the first day of the evidence in the trial, the victim or complainant was entirely uncooperative.  The next day, the parties came to a compromised agreement, and you pleaded guilty to recklessly causing injury and theft.

6The violence you and the co-accused perpetrated in public was frightening. 
The courts always denounce such mindless violence.  Deterrence to you and to others from like behaviour in the future is also an important sentencing consideration.

7Your co-accused pleaded guilty to more serious crimes and was sentenced by me to a lengthy term of imprisonment, together with a non-parole period. 

8You are now 41.  You have relevant prior convictions, most concerningly an old conviction from the New South Wales District Court for robbery in company.  You were sentenced to two years with a minimum of six months. 
The sentencing orders referred to you needing drug treatment and counselling.

9Thereafter, you have been before the Magistrates' Court in Victoria in 2002, 2004, 2006, 2007 and 2008, including for the crime of recklessly cause injury in 2008, with other crimes being drug offences, dishonesty and driving offences.  There have been some penalties involving imprisonment, but there have also been many community corrections orders.

10Then, for a significant period between essentially 2008 and the second half of 2018, you were offence-free.  There were some driving offences and the breach of an intervention order in between the time.  They received, in one case, a small - or a without conviction penalty, and in another, a community corrections order

11You were placed on that community corrections order on 3 August 2017. 
There have been problems with completing that community corrections order, and one minor further offence during the course of it.  The breach of that community corrections order and the further minor matter were dealt with, I was told, on 1 October 2019.  The outcome there was an undertaking for 12 months in respect of the minor injury and charge, and a variation on your community corrections order to extend it for 12 months.  I will speak more of this shortly.

12I had you assessed for a further community corrections order.  A report was provided recently, although it is dated 4 September 2019.

13As I have said, you are now 41.  You were 39 at the time.  There has been delay in this matter getting on.

14As is evidenced by your prior court appearances, you were particularly unsettled in your 20s.  You had drug problems at that time.  Going back further, you had difficulties as you grew up.  Your parents separated when you were about four.  You remained with your mother and siblings.  She was often working, and you and your siblings had to fend for yourselves.

15Around the age of 13 or thereabouts, you moved to what was described as 'another family', where you were exposed to drug and alcohol abuse. 
You moved often with them, including to rural New South Wales.  Your older brother moved to Sydney, and you joined him, though you were still only
15 years old.  This was the beginning of your serious use of drugs.

16You took to heroin and amphetamines.  You have tried to deal with your heroin addiction by using methadone for the last 20 years.  You moved on to using methamphetamines, or ice, in recent years.  This was the drug that was affecting you most particularly in 2017 and 2018.

17During your 20s and onwards, you have also had significant problems with alcohol.  You consider yourself to be an alcoholic.  In recent times, your main support has been your mother.

18You have been diagnosed with anxiety and with bipolar disorder.  Your mental health is fragile, whatever the appropriate diagnoses are, and diagnoses do not especially concern sentencing courts; rather, what is the impact of those mental illnesses upon a number of sentencing considerations?

19You have had assistance from your general practitioner for your mental health problems.  You are currently waiting for a bulk-billing psychologist under your mental health plan.

20Mr Khan, it is important that you pursue specialist intervention as to your mental health.  You cannot do this on your own and resort to drugs or alcohol as a way of dealing with it, and just make it that much worse. 

21You have, from the material that I have seen, it seems, two children, but you are estranged from them and have had no recent contact.  Your prospects of rehabilitation are guarded.  You may remain out of trouble and able to progress towards employment, but you will only be able to do so if you keep drugs out of your life.

22With respect to the sentencing consideration of facilitating your rehabilitation in respect of drug-taking and generally, the type of sentence that I impose should endeavour to ensure that the community is protected from your crime, such as violence in public places or dishonesty offences, by assisting you with your core problems of drug use and alcohol abuse.

23You were assessed for a community corrections order.  You were found to be suitable.  You were undergoing a community corrections order, as I spoke about, and a breach of that order was in place when the plea was done. 
The further assessment, as I said, was ordered.

24I spoke to the assessing officer in court at the time, and I ordered the assessment, asking her to consider your suitability by reference to your approach to the last community corrections order and by reference to what was done by the Magistrates' Court in respect of the breach.  The report was done before the material went - or the case was listed in the Magistrates' Court, as it turns out, and the report does not address, really, either of the areas that I raised directly with the assessing officer.  But I think there is explanation for that.

25I was informed, as I have already outlined, by your counsel on 1 October 2019.  Your breach was dealt with by variation of the community corrections order to in effect start it again on 1 October 2019 to run for 12 months.  Also, you gave an undertaking for 12 months to be of good behaviour for an offence of hindering a protective service officer, or a transport security person.

26Your counsel in the plea before me urged that a community corrections order be imposed, and that alone.  The prosecution contended that given the violence in public, the fact that it was company, and your prior history, a gaol term ought be imposed.

27I have mentioned the importance of denunciation and deterrence to you and others already.  I have also mentioned the need for the statutory mandate
I have to establish conditions that facilitate your rehabilitation.

28In this case, but by a bare margin - do you understand that?

29OFFENDER:  No.  No, Your Honour. 

30HIS HONOUR:  What I am about do is impose a community corrections order.

31OFFENDER:  Okay.  Thank you. 

32HIS HONOUR:  And it was a close run thing.  You are only just avoiding imprisonment by a small margin.  Do you understand that?

33OFFENDER:  Yes.  Thank you, Your Honour. 

34HIS HONOUR:  A community corrections order is, in this instance, the just and appropriate penalty for what you did.  It will also give you an opportunity to reform.  I have given weight to your plea of guilty, given what occurred in the trial before the jury.  The evidence heard at that point was such that your plea of guilty must be considered a valuable one.  I have paid what attention needs to be paid to the sentence imposed on the co-accused.  His crimes, of course, were much more serious than those that you have pleaded guilty to.

35For these two offences, I impose a single aggregate community corrections order that will last for 15 months.  You are required to be under the supervision of the community corrections officers.  You need to be assessed and treated for drug and alcohol problems, mental health problems, and other programs that the Office of Corrections deems to be required, so that you reduce the risk of reoffending.

36That community corrections order is with conviction.  There will need to be a document produced, and once it is produced, if you sign it, and it will bring the matter to an end as far as this court is concerned. 

37Had you pleaded not guilty to these offences and been found guilty of these offences, I would have imposed a penalty of 18 months with a minimum of 12. 

38Are there any other orders sought, Ms Hammill?

39MS HAMMILL:  I take it that Your Honour does not intend to impose unpaid community work.

40HIS HONOUR:  I am so sorry.  I did.  It is written here, and I did not say it.  I am sorry.  There ought be unpaid community work as well in this particular instance, and that will be 100 hours.  Do you understand that?  You have to do 100 hours of unpaid community work. 

41OFFENDER:  Is it possible I could pay a fine in exchange for the community work so I can do some ‑ ‑ ‑

42HIS HONOUR:  No.  No, it is not.  Not at all.  You work it out.

43OFFENDER:  No, okay.  All right, I was just sayin'.  Thank you. 

44HIS HONOUR:  It is not a matter of negotiating.  I am just telling you what you got.

45OFFENDER:  No, no, it's just that - okay, thank you.

46HIS HONOUR:  Because the announcement of the sentence was not as straightforward as I would otherwise hope it would be, and I thank Ms Hammill for sorting out that problem.

47MS HAMMILL:  Your Honour, I'm also told or reminded by Your Honour's associate, that there was an application for the taking of a forensic sample.

48HIS HONOUR:  Yes.  Mr Khan, the prosecution has applied for a forensic sample to be taken from you, and I propose to grant that application.  I do so because of the seriousness of the circumstances of the offending.  It warrants such an order.  Your prior convictions warrant the making of the order, and the granting of the order is in the public interest.

49That means that you need to go to the police station, and I will explain to you when that has to happen.  You have to get to the police station there in Ballarat, and submit to the taking of a fire station.  That will be a scraping from your mouth, a swab from your mouth, and from that, they will extract your DNA and put it on a database.  So if the police, when you turn up there to do it - they are authorised to use reasonable force to get the sample if you do not cooperate.  Do you understand that?

50OFFENDER:  Yes. 

51HIS HONOUR:  Thank you.  Now, you have to get down there to the police station.  It is not straightaway.  You have got to give them four weeks, and then after the four weeks has passed, so a month from now, you have got a window of opportunity to get down to the police station and have this sample taken.  That window stays open for another month, 28 days, four weeks.  So you have got to get down there in that time.  Mr Alexander will explain that further.

52MR ALEXANDER:  Yes, Your Honour. 

53HIS HONOUR:  Mr Khan, the community corrections order is as follows. 
You have had these before.  I will just read to you, as I must, the conditions that apply to everyone on a community corrections order, the first of which is the most important:  you must not commit another offence for which you could be imprisoned during the time this order is in force.

54Almost every offence you can think of, if you committed it, it would breach this community corrections order, and you will come back to me.  Even if it is 'hinder the PSO' or whatever it is, so long as it is punishable by imprisonment, that will breach your order and the Corrections people will bring you back before me.  Not to the magistrate.  And the mercy that I have shown you here will not be repeated.  You are likely to go to gaol.  Highly likely.  Got that?

55OFFENDER:  Yes, Your Honour. 

56HIS HONOUR:  Thank you.  You must comply with the obligations and requirements under the sentencing regulations.  They will explain to you what they are in terms of identifying.  You must report to and receive visits from the Office of Corrections.  You must get down to the community corrections centre within two days of this order starting.  So when you get back to Ballarat, go and see the Corrections people and get this one started.  You know where that is, in Mair Street.

57You must not leave Victoria without getting permission to do so.  You must let the community corrections staff know when you change your address or your job.  You have got to tell them within two clear working days of that, and you must obey their lawful instructions and directions.

58So that applies to everyone.  The conditions apply specifically to you.  You must do 100 hours of unpaid community work over the 15 months.  You must be under the supervision of the community corrections order for 15 months. 
You must undergo assessment and treatment for drug abuse and dependency.  You must undergo assessment and treatment for alcohol abuse and dependency, and you must undergo any mental health assessments and treatments that they direct, and you must participate in programs or courses that may address factors relating to your offending.

59If you sign that, as I say, it will bring the matter to an end.  Come out of the dock there, Mr Khan.  You will get a copy of all that.  Thank you very much for your assistance, Ms Hammill and Mr Alexander.  Once he has got the documents, he is free to go.  Thank you. 

60MR ALEXANDER:  As Your Honour pleases.

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