Khan v The Queen [2018] VSCA 61

[s 39(1) of the Crimes Act 1958]

[s 39(1) of the Crimes Act 1958]

[s 39(1) of the Crimes Act 1958]

Pre-Sentence detention declaration pursuant to s 18(1) of the Sentencing Act 1991:

Other orders: Applicant's mobile telephone forfeited to the Minister for destruction.

2 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.

1. 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.

3 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.

4 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.

5 The 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 the applicant to take them to a nightclub in Fitzroy. There was no mention of the fare, and the applicant's identification was not displayed in the taxi. The applicant turned the meter off as he drove towards Fitzroy. He stopped in Brunswick Street, Fitzroy and then covered the internal camera in the taxi. After about ten minutes, he uncovered the camera and began moving again.

6 The complainant remained in the back seat but moved towards the centre. The complainant's friend got out of the car and sat in the front passenger seat. The applicant then touched the complainant's crotch area for a few seconds. He then touched her thighs and all over her legs. In response, the complainant's friend grabbed the applicant's 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'.

7 A few minutes later, the applicant put his left arm back towards the complainant. The complainant, however, used her leg to push the applicant's arm away. While this was happening, the applicant kept saying: 'She's my love, I really like her'.

8 The applicant's behaviour up to this point was not the subject of any charge. However, when the applicant stopped at a red light, he turned around and touched the complainant's left breast. The applicant touched the complainant's breast forcefully, attempting to put his hand under her clothing. This touching was the basis for charge 1.

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

10 The taxi's external camera then captured the applicant getting out of the taxi and again opening the rear door on the driver's side where the complainant was seated. The door was then closed again. The applicant was 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.

11 The applicant then drove to Heidelberg, where the complainant lived. The internal camera was still covered. During this trip, the applicant stopped the taxi, turned around in his seat, and leaned over towards the complainant. He then slid his hand up the complainant's left thigh, pulled her underwear to one side and touched her vagina. These events formed the basis for charge 2.

12 The applicant's touching of the complainant's vagina caused her to jump, and caused her friend to say: 'Stop, stop'. The applicant began driving again but, in the course of driving, he again touched the complainant's vagina. The complainant's friend again said: 'Don't touch her like that. I can see what you're doing. Get off her'. These events formed the basis for charge 3.

13 At about 1:50 am, following his offending, the applicant drove into the street where the complainant lived. She directed the applicant to her house. As the applicant stopped the taxi, the complainant began looking for her phone. Her phone had been lost in the taxi. The battery of the applicant's friend's phone was flat, so she gave the applicant the complainant's number and asked him to call the complainant's phone. The applicant became angry, and said that he was going to take them to the police station if they did not get out. In response, the complainant's friend told the applicant to take them to the police station. But he did not do so.

14 Eventually, the applicant rang the complainant's phone, and the phone was located in the taxi. The complainant and her friend then got out of the taxi, and soon afterwards they notified the police.

15 Over the next two days, the applicant rang the complainant twice. On the first occasion, the applicant asked the complainant if she remembered him. He also asked how she was. The following day, the applicant rang the complainant and said 'hello'. The complainant recognised his voice, and handed the phone to her boyfriend. The applicant then hung up.

16 The applicant was arrested on 17 June 2015, and his phone was seized. The complainant's phone number had been saved on it. An examination of the applicant's phone showed that he had in fact called the complainant's number seven times over the two days following his offending.

17 When interviewed by police, the applicant said that the complainant and her friend were drunk, and that it was one of the girls who covered the camera. The applicant denied any claim of sexual assault against the complainant, telling police that the complainant 'showed him her boobs and asked [him] to finger and fuck her'. The applicant also told police that he had subsequently called the complainant's phone number because he thought it was the mobile number of a friend of his.

18 The applicant, who has no criminal history, was 35 at the time of his offending, and 37 at the time of sentencing. He was born in Pakistan. In 2011, the applicant migrated to Australia, via Malaysia. He left behind his parents, six siblings and five children from an earlier marriage.

19 The applicant arrived in Australia on a prospective marriage visa. He married in September 2011, and divorced in February 2014, Following his divorce, he went on to a bridging visa. At some point following his offending, the applicant's bridging visa was cancelled.

20 On 5 June 2016, the applicant was taken into immigration detention as he had no visa permitting him to stay in Australia. The applicant was detained first at Maribyrnong, and then on Christmas Island. The applicant was, however, flown back to Australia for court appearances and various medical appointments. The applicant remained in immigration detention for 10 months until 5 April 2017. It is this 10 month period that is referred to in the applicant's proposed ground 1.

21 The applicant pleaded guilty prior to a committal, and was then remanded into custody. It appears that the applicant was remanded into custody (and did not make a bail application) because of a fear that he might be deported before facing court on the present charges. At the time of sentencing, the applicant did not have a visa to remain in Australia. He had, however, applied for a protection visa.

22 Additionally, the applicant has suffered from a number of health issues. These were identified on the plea as short-term memory loss, a perforated ear drum, facial palsy, a heart condition, a shoulder injury, gastric reflux and a hernia. On the plea, the judge was told that the applicant's gastric reflux and hernia caused him difficulty in sleeping which could be alleviated by medication and by the use of a second pillow - neither of which had been provided to the applicant while he was in custody. Again, it is these health issues to which reference is made in the applicant's proposed ground 1.

23 The judge commenced her reasons for sentence with a description of the applicant's offending,[1] before then dealing with the applicant's background.[2] The judge noted the applicant's description of his time on Christmas Island as being 'similar to prison', and that the applicant had been assaulted twice in incidents which were being investigated.[3]

24 Next, the judge dealt with the issue of the seriousness of the applicant's offending. The judge concluded that the offending was serious, saying:

Clearly 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.[4]

25 The judge then said that the applicant had not expressed any remorse and that it seemed likely that he had little or no insight into the seriousness of his offending.[5] The judge said that, given the seriousness of the offending, general deterrence was the primary sentencing factor. As her Honour put it:

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.[6]

26 The judge then turned to matters in mitigation, referring to the applicant's health, his plea of guilty and his prospect of deportation. The judge said:

There 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.

The 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.

It 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.[7]

27 The judge sentenced the applicant to 12 months' imprisonment for each of his offences. She made orders for cumulation that cumulated one month of each of the sentences imposed on charges 2 and 3 on the applicant's sentence of 12 months. On charge 1 the judge's reasons for ordering this cumulation were:

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.[8]

28 Next, the judge said that she saw no reason to fix a non-parole period.[9] Finally, and in the course of declaring the applicant's pre-sentence detention of 49 days, the judge said:

In broad terms, I also take into account that you were detained in detention centres for many months before being remanded in custody.[10]

29 Under proposed ground 1, the applicant submitted that the sentence imposed upon him was manifestly excessive in that the judge failed to give sufficient weight to the 10 months spent by the applicant in immigration detention; the more onerous effect of imprisonment because of his poor health and the uncertainty of his immigration status; and his lack of prior convictions.

30 The applicant contended that, in the circumstances of this case, his time in immigration detention 'ought to have weighed heavily in [his] favour', given the length of time in detention and 'the onerous conditions in which it was served'. The applicant also submitted that the judge took too limited an approach on this issue, only treating his time in immigration detention 'as a factor which led the applicant to feel uncertain about his immigration status'. The judge's failure to take a broader approach was said to be 'compounded by the fact that the applicant's poor health would have made his detention in custody even more burdensome'.

31 In relation to the applicant's lack of prior convictions, the applicant submitted:

The sentencing judge made no reference to the applicant's lack of prior convictions. Whilst this fact alone does not bespeak error, it should be viewed in the context of the emphasis that the sentencing judge gave to the applicant's lack of remorse and 'likely' lack of insight. This combination of factors indicates that the sentencing judge failed to give due weight to the applicant's status as a first offender, and the fact that the offences were all committed during a single episode.

32 Under proposed ground 2, the applicant sought to have admitted, as fresh evidence, the fact of his confinement in the Richardson Management Unit at Hopkins Correctional Centre ('the Richardson Management Unit') between 2 and 18 November 2017. It was submitted that this was 'fresh evidence of special hardship in custody'.

33 It is convenient to begin with proposed ground 2. The principles to be applied when determining whether fresh evidence should be admitted after sentencing are well settled. They were summarised by Redlich JA in Nguyen v The Queen,[11] as follows:

It is common ground that this Court may, in limited circumstances - sometimes described as 'rare and exceptional' - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:

(i) the new evidence must relate to events which have occurred since the sentence was imposed;

(ii) the evidence must demonstrate the true significance of facts in existence at the time of the sentence;

(iii) the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;

(iv) the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;

(v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and

(vi) the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[12]

34 The respondent does not dispute that the applicant was moved to the Richardson Management Unit as a result of an allegation of assault by another prisoner. In an affidavit sworn by Ms Jennifer Hosking, the Acting Assistant Commissioner, Sentence Management, Corrections Victoria, Ms Hosking deposed that, while the applicant was in the Richardson Management Unit (between 2 and 18 November 2017), he was only allowed out of his cell for one hour each day.

35 While we take leave to doubt that the evidence the applicant wishes to have admitted as fresh evidence, concerning his confinement in the Richardson Management Unit, is admissible on this application, it is not necessary to resolve that issue. It suffices to say that we are not persuaded that the applicant's confinement involves any 'special hardship' as asserted in proposed ground 2. Similarly, we are not persuaded that this matter is of such significance as to require the sentencing discretion to be reopened and some different sentence now passed in respect of the applicant's offending. It follows that, in our view, proposed ground 2 is not reasonably arguable.

36 We turn now to proposed ground 1 - the applicant's complaint of manifest excess. As has been said many times before, manifest excess is a stringent ground that is difficult to make good. The applicant must demonstrate that the sentence imposed upon him was 'wholly outside the range of sentencing options' available to the judge.[13]

37 The judge rightly characterised the applicant's offending as serious and 'an outrageous intrusion' on the complainant, a young and vulnerable woman. Notwithstanding his lack of prior convictions, the judge was entitled to conclude that the applicant had shown little or no remorse and had little or no insight beyond the acknowledgement represented by his plea of guilty. Moreover, the judge was correct to view the applicant's persistence, after being told to stop, and after being pushed away, as aggravating circumstances requiring 'some modest cumulation'.

38 Additionally, the applicant's contention that the judge took too limited an approach to the issue of his 10 months in immigration detention must be rejected. The judge did not confine the relevance of that issue to whether incarceration would weigh more heavily on the applicant. As the judge made plain, the judge took the applicant's period in immigration detention into account 'in broad terms' in the sentencing synthesis[14].

39 When one gives proper regard to the objective seriousness of the applicant's offending, the mitigating factors relied upon by the applicant do not require that some different sentence should have been imposed upon the applicant. Specifically, we see no basis upon which it can reasonably be contended that the sentence imposed by the judge was in any way outside the permissible range of sentencing options open to her Honour. Like proposed ground 2, proposed ground 1 must be rejected.

40 The application for leave to appeal against sentence must be refused.

[11] [2006] VSCA 184 ('Nguyen').

[12] Ibid [36]-[37] (citations omitted).

[13] See, eg, R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306; McPhee v The Queen [2014] VSCA 156 [9]-[11]; Hayes v The Queen [2017] VSCA 285 [47].