Director of Public Prosecutions v Khan

[2017] VCC 652

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00682

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAYAT KHAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 May 2017
DATE OF SENTENCE:	24 May 2017
CASE MAY BE CITED AS:	DPP v Khan
MEDIUM NEUTRAL CITATION:	[2017] VCC 652

REASONS FOR SENTENCE
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Subject: Criminal law - sentence        

Catchwords: Pleas of guilty to three charges of indecent assault – offender a taxi driver – complainant 18 year old woman who was affected by alcohol and a drug – vulnerable passenger – gross breach of trust -  no remorse – offender is without a visa and likely to be deported on completion of sentence.           

Sentence: 14 months.             

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Livitsanos	OPP
For the Accused	Mr R Backwell	VLA

HER HONOUR: 

1Hayat Khan, you had pleaded guilty to three charges of indecent assault all of which occurred on one occasion in a taxi driven by you on 8 June 2015.

2In the early hours of that morning, just before 1 am, you picked up two passengers outside a King Street nightclub.  The passengers were two young women who had been visiting nightclubs that evening and who had each drunk considerable amounts of alcohol.  Shortly before being picked up by you in your taxi, they had each consumed an ecstasy pill and this began to take effect as they got into the taxi.

3The complainant, who was aged 18 at the time, felt as though she had blacked out, as she sat in the rear of the taxi with her friend.  They asked you to take them to a nightclub in Fitzroy.  There was no mention of the fare and your identification was not displayed.  You turned the meter off as you drove towards Fitzroy.  You stopped in Brunswick Street, Fitzroy and then covered the internal camera in the vehicle.  After about ten minutes, you uncovered the camera and began moving again.

4The complainant remained in the back seat but moved towards the centre and her friend had already got out of the car and sat in the front passenger seat.  You then touched the complainant's crotch area for a few seconds, then you touched her thighs and all over her legs.  The complainant's friend grabbed your hand and moved it away from the complainant saying "Don't touch her like that, you're not allowed to touch her like that.  This is illegal".  A few minutes later, you put your left arm back towards the complainant and she used her leg to push your arm away.  You kept saying "She's my love, I really like her".

5Your behaviour up to this point was not the subject of any charge but when you stopped at a red light you turned around and touched the complainant's left breast, forcefully trying to put your hand under her clothing; that is Charge 1.

6A few minutes later you drove into the rear yard of the premises where you lived and got out of the car and went inside.  You came out a minute later and returned to the taxi and spoke to the complainant and her friend through the open driver's side door.  For some reason, you then opened and closed the rear door on the driver's side and then you got into the driver's seat and covered the internal camera with a cloth.

7The external camera then captured you getting out the car and again opening the rear door on the driver's side where the complainant was seated.  The door was then closed again.  You were in the rear seat with the complainant for approximately 20 seconds before getting back into the driver's seat and driving out of the backyard.  You then drove to Heidelberg where the complainant lives, with the internal camera still covered.  During the trip you stopped the car, turned around in your seat and leaned over towards the complainant.  You slid your hand up her left thigh, pulled her underwear to one side and touched her vagina; that is Charge 2, indecent assault.

8This caused her to jump and her friend said "Stop, stop".  You began driving again but, again, you touched the complainant's vagina.  Her friend said "Don't touch her like that.  I can see what you're doing.  Get off her"; that is Charge 3, indecent assault.

9At about 1.50 am, you drove into the street where the complainant lived.  She directed you to her house and as you stopped the taxi, she began looking for her phone which she had lost in the taxi.  Her friend's phone had no more battery and so she asked you to call the complainant's phone and gave you the number.  You became angry and said you were going to take them to the police station if they did not get out.  Her friend told you to take them to the police station, but you did not do so. You eventually rang the complainant's phone and it was located in the cab.  The two women then got out and soon afterwards they notified the police.

10Over the next two days, you rang the complainant twice.  On the Monday, you asked if she remembered you and asked how she was and the following day you said “hello” and the complainant recognised your voice.  She handed the phone to her boyfriend and you hung up.  You were arrested on 17 June 2015 and your phone was seized.  The complainant's phone number had been saved on it.  It showed that you had called the number seven times between 8 and
9 June, the Monday and Tuesday following the offences.

11When interviewed, you told the police that the complainant and her friend were drunk, that it was one of the girls who covered the camera, that the complainant had asked you to engage in sexual activity with her and asked you for sex, and that you had called her phone number accidentally.  You were charged on
17 May 2016, on summons, but as your visa had been cancelled, you were placed in immigration detention from 5 June 2016 until 4 April 2017, at Maribyrnong Detention Centre and on Christmas Island.  After the committal on 5 April 2016, you were remanded in custody as it was feared you might be deported before the hearing of these charges.  It is expected that you will be deported at the end of your sentence.  I was told that you had initially been on a spousal visa but you were then divorced from your wife, and placed on a bridging visa. 

12The complainant provided a victim impact statement in which she described having experienced anxiety and fear of going out alone since the incident.  It occurred two days before a university exam and she failed it owing to her emotional state.  She had to repeat the course and was prevented from graduating at the end of the year.  She is now seeing a counsellor to help her cope. 

13You are a single man aged 38, who was previously married and whose five children live in Pakistan, from where you came in 2011.  You and your family had become embroiled with the Taliban.  Your parents still live there and you had been sending money to them until your arrest.  As I said, it seems that you were also married here in Australia but subsequently divorced. 

14You have described your time on Christmas Island as being similar to prison.  You were assaulted twice in incidents which are being investigated.  You were always uncertain as to whether you would be deported and as I said earlier, you were eventually remanded in custody to prevent your deportation before these charges were heard.  The uncertainty of your status in Australia still weighs upon you and will likely make your time in custody onerous .  You have applied for a protection visa but at the moment you have none.  Your health is somewhat compromised which led to you being flown from Christmas Island to Australia for medical investigations and treatment. 

15You suffer from short-term memory loss, a perforated eardrum, facial palsy, a heart condition, a shoulder injury, gastric reflux and a hernia.  The latter two conditions cause difficulty in sleeping which can be alleviated by medication and by the use of a second pillow, neither of which have been provided in prison.  You have not seen a doctor and so have not been provided with the medication which had been prescribed and issued to you in 2015 during your time in detention.

16Clearly the offences are serious for several reasons.  They were an outrageous intrusion on this young woman.  She was in a vulnerable state because she was affected by alcohol and a drug, and she and her friend, also a young woman, were dependent on you to take them home safely.  They trusted you to do this as they were entitled to.  You exploited that situation in a gross and brazen manner, refusing to stop when her friend told you to, more than once, and covering the camera.  In these ways, you breached the trust placed in you.  You even followed up your assaults on her by contacting her over the next two days, exploiting the fact that you had been given her phone number only to help locate her phone.

17You have not expressed any remorse and indeed it seems likely that you have little or no insight into the seriousness of what you did.  Given the seriousness of the offending, general deterrence is the primary sentencing factor.  Members of the public are entitled to be safe when taking various forms of transport and it should be understood that those who threaten people's safety, particularly the safety of young people, will be dealt with severely by the courts.

18There are several mitigating factors, including your health as I have mentioned.  Your early plea of guilty has avoided the need for the complainant and other witnesses to have to give evidence and the avoidance of a trial has facilitated the progress of the case and is of assistance to the criminal justice system. 
I accept it as your acknowledgement of wrongdoing, but with little or no remorse and little or no insight beyond that acknowledgement, as I said earlier.  Nonetheless, your plea of guilty means you are entitled to a discount on your sentence. 

19The uncertainty as to whether or when you will be deported will weigh heavily upon you while in custody and that is a mitigating factor to be taken into account to some extent.  You were in Australia for a relatively short time and your family lives in Pakistan, however you stand to lose the prospects of a future in this country which I can assume was of importance to you, having come here because of unspecified problems with the Taliban, apparently because of your religious beliefs.

20It would appear that the possibility of your deportation does not depend on the outcome of this hearing, because you are already in the position of having no visa, and deportation will be linked to that status.

21The maximum penalty for the crime of indecent assault is ten years' imprisonment.  Will you stand now please Mr Khan?

22You are sentenced to 12 months' imprisonment for each offence.  Because you committed the three offences in one episode within a short period of time, ordinarily there might be no order for cumulation, but during the course of these assaults, you were twice told to stop and you did not.  Even being pushed away by the complainant did not deter you.  These are aggravating factors and I take the view that some modest cumulation should be applied.

23The sentence for Charge 12 will be the base sentence and one month of each of the sentences for the other Charges will be served in cumulation upon the base sentence.  That results in a total effective sentence of 14 months.

24I find no reason to a fix a non-parole period but will note on the court record that you have been in custody for 49 days, not including today which is to be reckoned as already served.  In broad terms, I also take into account that you were detained in detention centres for many months before being remanded in custody. 

25If you had pleaded not guilty to these charges, I would have sentenced you
18 months' imprisonment. 

26A disposal order for the mobile phone is sought by the prosecution which is opposed by you through your counsel.  The order is sought on the basis that you used the phone to perpetuate your pursuit of the complainant despite the evidence suggesting that you would have known this would be unwelcome as indeed it proved to be.  As I said earlier, you exploited the fact that you came into possession of her phone number in order to assist her to find the phone in your taxi.  I agree with the prosecution's submissions that the phone is inherently involved in the proceeding and therefore it should be forfeited and disposed of.

27HER HONOUR:  Are there any other matters?

28COUNSEL:  No, Your Honour.

29HER HONOUR:   I told the Interpreter that he could have a copy of the sentence if necessary. Mr Backwell, would you mind approaching the dock and asking if Mr Khan has understood everything satisfactorily?

30MR BACKWELL:  Thank you, Your Honour.  He understands in broad terms, I will have a conference with him later in the day.

31HER HONOUR:  All right, then that will be fine.  The sentence will be going on the media portal.  It'll be there for members of the press if they want it in the usual way.

32MR BACKWELL:  As Your Honour pleases.

33HER HONOUR:  And if anyone else wants a copy, they can ask my associate.

34MR BACKWELL:  Thank you, Your Honour.

35MR LIVITSANOS:  AS Your Honour pleases.

36HER HONOUR:  Thank you.

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