Hayat Khan v The Queen

[2018] VSCA 61

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:

1. 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.

1. 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

1. 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.

1. 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.

1. The complainant, who was aged 18 at…