SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0216
| HAYAT KHAN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WEINBERG, BEACH and HARGRAVE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 March 2018 |
| DATE OF JUDGMENT: | 19 March 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 61 |
| JUDGMENT APPEALED FROM: | DPP v Khan (Unreported, County Court of Victoria, Judge Wilmoth, 24 May 2017) |
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CRIMINAL LAW – Sentence – Appeal – Indecent assault (3 charges) – Sentence of imprisonment for 14 months – Whether sentence manifestly excessive – Fresh evidence – Whether evidence is fresh evidence – Whether sentencing discretion re-opened – No basis shown for re-opening sentencing discretion – Sentence not manifestly excessive – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Ginsbourg | Giorgianni & Liang Lawyers |
| For the Respondent | Mr M D Phillips | Mr J Cain, Solicitor for Public Prosecutions |
WEINBERG JA
BEACH JA
HARGRAVE JA:
On 18 May 2017, the applicant pleaded guilty in the County Court to three charges of indecent assault. Following a plea hearing, on 24 May 2017, the applicant was sentenced as follows:
Charge on Indictment Offence Maximum Sentence Cumulation 1. Indecent Assault
[s 39(1) of the Crimes Act 1958]
10y
12m Base 2. Indecent Assault
[s 39(1) of the Crimes Act 1958]
10y
12m 1m 3. Indecent Assault
[s 39(1) of the Crimes Act 1958]
10y
12m 1m Total Effective Sentence:
1y 2m Non-Parole Period: None fixed (1) of the Sentencing Act 1991Pre-Sentence detention declaration pursuant to s 18: 49 days 6AAA Statement: 18m imprisonment. Other orders: Applicant’s mobile telephone forfeited to the Minister for destruction.
The applicant seeks leave to appeal against his sentence. His proposed grounds of appeal are:
1.The sentence is manifestly excessive in that the sentencing judge failed to give sufficient weight to:
(a)the 10 months spent by the applicant in immigration detention awaiting trial of the charges;
(b)the more onerous effect of imprisonment because of poor health and the uncertainty of the applicant’s immigration status; and
(c)the applicant’s lack of prior convictions.
2.There is fresh evidence of special hardship in custody, namely, the confinement of the applicant in the Richardson Management Unit at Hopkins Correctional Centre, that ought to be admitted in the circumstances.
Circumstances of the offending
As we have observed, the applicant pleaded guilty to three charges of indecent assault. The applicant’s offending occurred on 8 June 2015, in a taxi driven by him. His victim was a passenger in his taxi.
In the early hours of 8 June 2015, just before 1:00 am, the applicant 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 the applicant in his taxi, they had each consumed an ecstasy pill. The ecstasy pills began to take effect as they got into the taxi.
The complainant, who was aged 18 at…
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- AGLC
- Hayat Khan v The Queen [2018] VSCA 61
- Case
- [2018] VSCA 61
- Decision Date
CaseChat Overview and Summary
The primary legal issue for the court to decide was whether the sentence was manifestly excessive, and if so, whether the fresh evidence provided a sufficient basis to re-open the sentencing discretion. The court had to consider the principles of sentencing in criminal law, the appropriate punishment for the crimes committed, and the impact of the fresh evidence on the sentence imposed. Additionally, the court had to determine if the fresh evidence was indeed new evidence which had not been previously considered, and whether it provided a compelling reason to reconsider the sentence.
The court examined the sentencing principles and the nature of the crimes, concluding that the sentence imposed was not manifestly excessive. The court found that the sentence was within the range of penalties that could be imposed for the offences, and that there was no compelling reason to re-open the sentencing discretion based on the fresh evidence. The court held that the fresh evidence was not new evidence, as it was either already known to the Court of Appeal or did not provide a significant change in the circumstances of the case. The court therefore found that there was no basis for re-opening the sentencing discretion and dismissed the appeal. The application for leave to appeal was refused, as the court found no sufficient grounds to grant leave.
In conclusion, the court upheld the original sentence imposed on Khan, finding it to be appropriate and not manifestly excessive. The court held that the fresh evidence did not provide a sufficient basis to re-open the sentencing discretion. The application for leave to appeal was accordingly refused, and the sentence of 14 months imprisonment, to be served consecutively for each of the three charges, remained in place.
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Background
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Evidence
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