R v Michael Dean KHAN; Dushand RANA; Saurav MAHAY

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 21

CASES CITED: R v Groundir [2001] NSWCCA 198 R v Newell [2004] NSWCCA 183

Michael Dean Khan PARTIES: Dushand Rana Saurav Mahay

FILE NUMBER(S): 2008/211508; 2008/254927; 2008/82064

Mr S De Silva for the Director of Public Prosecutions COUNSEL: Ms K Stares for Mr Khan Ms ST Hall for Mr Rana

Mr Khan, Mr Rana and Mr Mahay, as your lawyers would have told you, I am going to sentence you now and that involves me talking for about three-quarters of an hour or more about the case and then, at the end of that, I impose the sentences.

This is a case where I have to sentence three men, two of them in their twenties, for their involvement in a very serious crime. The crime is called specially aggravated detain for ransom. The special aggravations were that during the detention, the victim was assaulted and as a result of that, incurred actual bodily harm. The detention also was perpetrated by the offenders whilst in each other's company.

Parliament has fixed a maximum sentence of twenty-five years imprisonment to this crime, which demonstrates how serious it is regarded.

First, I have to say briefly what happened in this case to result in the charges and I will set out as my findings this brief account of the events that led to the charges.

I will refer to the victim as 'the victim' as the law protects his identity. The offenders Rana and Mahay picked him up at his home in Doonside and went to buy some alcohol, then they took him to the offender Khan's house. There was, at that stage, no question of any coercion. When they reached Mr Khan's house, the four men were drinking and smoking there, except that Mr Khan himself did not consume any alcohol.

Later in the evening, the victim asked whether he could go home. It was made clear to him that he was not going home, that he would be staying there that night. Mr Rana and Mr Mahay were there, as well as Mr Khan, when that was made clear to the victim.

The victim said that what happened then is that he was beaten. He was kicked in the stomach and abused and hit. The people who hit him were Mr Mahay and Mr Rana. At one stage, he said Mr Rana pulled a knife from his pocket. He was asked for seven thousand dollars. He did not have seven thousand dollars, but the demand was for seven thousand dollars. He was permitted to speak to a friend of his on the phone in order to assist in obtaining the money, but he was not allowed to say where he was. When he was being beaten, he was calling out for help, but nobody responded.

He was then taken to a shed in the back of Mr Khan's house where the four men sat in chairs which were arranged. It was clear that the victim was not permitted to leave the house and perhaps not permitted to leave the shed. He thought he was in the shed for about an hour. After that, he was taken inside and was made to spend the night at Mr Khan's house. He spent the night in a bed with Mr Rana and Mr Mahay on either side of him. Mr Khan slept in his own bed with his wife.

He was told the next morning that they would take him to the city, but then he was told he would be taken to the police station. He agreed because he was very scared.

During the course of the car ride to the police station, he was told - probably by Mr Rana and Mr Mahay - that they were going to kill him and throw him in the river. The car went to a shopping centre and parked near the police station. The police had been alerted by that stage and as the car was proceeding to leave the shopping centre car park, police stopped the car and arrested the three offenders.

I need to make some findings about the relative culpability of the three offenders. I start with the observations made by the Chief Judge at Common Law, Wood J, in R v Goundir [2001] NSWCCA 198 127 A Crim R 331 at 335 ([31]) where his Honour made some observations about offenders who have been convicted of an offence on the basis of joint criminal enterprise which these three offenders are convicted of. His Honour remarked about "assessing the objective criminality of offenders, as 'being of the same quality' upon the basis that they had involved themselves 'in a course of criminal conduct which could be described as a joint criminal enterprise'". His Honour went on to say in the following paragraph that "this does not automatically mean that every participant in such an enterprise shares the same degree of objective criminality. The assessment does, however, begin or should begin with the proposition that each intended the crime and each set out to carry it into effect." His Honour went on to observe at [33] that "on some occasions, cause will arise for differentiation between them, for example, if one offender stands out as the obvious ring leader, or abuses some inside knowledge or connection with the premises to carry the crime into effect, or is the person who actually elects to carry out the threat of violence by using the weapon offensively to cause injury to the victim."

I accept that as guidance to my approach to assessing the relative culpability of these three offenders.

It is important in my opinion not to lose sight of the fact - by concentrating too much on individual roles or what happened at the start or the end of this particular crime - that they are jointly charged with, or rather charged with the joint criminal enterprise resulting in this crime.

It is also important to bear in mind that all three were present for the whole of the period of detention which - I have not yet said, but now say - was between about 9 on the night when it was made clear that he could not leave Mr Khan's house until about 1 o'clock the following day. That is over half a day.

Nevertheless, it has to be said that it was Mr Mahay and Mr Rana who collected the victim and took him to Mr Khan's house. I cannot be satisfied beyond reasonable doubt at what stage Mr Khan was recruited, but it is clear to me that he was part of the joint criminal enterprise from the commencement of the crime to its end.

There was an issue raised by Ms Stares who appeared for Mr Khan about whether or not her client was present or aware of the beating which the victim described himself as receiving. This was an important point for her client, she said, because it could be argued that his conviction was not on the basis of an actual infliction of actual bodily harm or being part of an agreement to do that, but as a person as part of the joint criminal enterprise with the contemplation that actual bodily harm was a significant possibility.

I am satisfied beyond reasonable doubt that Mr Khan was present and aware when the beating occurred. The victim described the beating when he was told to sit under the tree and, as I have said, was kicked in the stomach. He was asked by Mr De Silva, the Crown Prosecutor, this question: "And Mr Michael, where was he? Mr Khan, whom you call Michael, where was he?". Through an interpreter, the victim said "I don't know. I can't remember anything.". Having said that, the Crown Prosecutor returned to the question a little later. Evidently, the victim had refreshed his memory and the Crown Prosecutor asked him whether he recalled whether Mr Khan was at the place where the beating occurred and the answer was "Yes". To clarify, the Crown Prosecutor asked "By 'Yes', do you mean that he was there or not there?". The witness answered through the interpreter "He was present there".

It was suggested by Ms Stares to the victim that her client was not present during any of the beating that he said he suffered. The victim's response was "He was standing there, but he never helped me". Ms Stares drew his attention to the fact that it was dark and raining and that he would not be able to see her client. The victim's response was "I saw Mr Khan, he was standing".

I am satisfied beyond reasonable doubt on that evidence that Mr Khan was aware of the beating that was being inflicted upon the victim by his co-offenders. However, I also accept that it is clear from the victim's evidence that Mr Khan himself did not assault, physically assault, the victim.

The knife was produced by Mr Rana, as I have said, during the beating. I am not satisfied beyond reasonable doubt that Mr Khan saw or was aware of the presence of the knife. The evidence is not clear enough to convince me of that. I am satisfied that Mr Mahay was there and aware of the knife being produced.

The detention came to an end when the police intervened. There was a submission by Ms Stares that her client's culpability is reduced by him suggesting to the victim that they should go back to get some form of identification. I do not put any weight on that. I accept what the Crown Prosecutor submitted, that that is artificial - completely unlikely and artificial. The suggestion was that the victim should get some identification so that he could prove who he was when he went to the police station. It is known that there were two - four friends of his there who would be able to verify his identity.

The ransom which is the subject of the charge which the three men have been convicted of was, I am satisfied, seven thousand dollars. Both Mr Mahay and Mr Rana made that demand, or one did in the presence of the other. Mr Khan was present when it was made. I am satisfied in any event from a notation made on a piece of cardboard which became exhibit E that Mr Khan was aware that money was being asked and it was a sum in the region of seven thousand dollars.

Ms Stares drew my attention to some conversation between her client and the victim regarding money. It is not at all clear from the transcript over T 126 - 128 what that conversation was about, but it does not, in my opinion, reduce her client's involvement or culpability in the offence. Nor does it much assist Mr Khan that the victim agreed that Mr Khan had treated him "nicely". Nor does it assist Mr Khan that he slept in his own bed with his wife whilst his co-offenders slept with the victim. It is not clear at all what the victim meant when he said "I never blamed Mr Khan" at one stage in the evidence.

The amount demanded - namely, seven thousand dollars - was not insignificant. It was not, of course, in the region of hundreds of thousands of dollars, but being some thousands of dollars, I am satisfied that it was not an insignificant amount. Although it is not suggested that Mr Khan would benefit financially - and I accept that - he, nevertheless, provided the venue for this crime and was a participant.

I should have mentioned at the commencement of these remarks that all three men, when charged, had pleaded not guilty and after a trial before me and a jury, the jury found them guilty of the offence on 6 September 2010.

Ms Stares and Mr Sandilands who appeared for Mr Mahay and Ms Hall who appeared for Ms Rana all submitted that the offence was at the lowest end of seriousness, so far as these kinds of offences are concerned. The Crown Prosecutor agreed that the offence was in the lower end of seriousness for these kinds of crimes, but not at the bottom. I accept the Crown Prosecutor's submission on that issue. In particular, I have regard to the length of time that the victim of this crime was detained. He was detained, as I have said, for over half a day.

It was suggested that his injury could be regarded as insignificant. I do not accept that submission. The medical evidence was to the effect that he had suffered a "left peri-orbital contusion haematoma and concussion". The bruising might not be regarded as significant, but the concussion I regard as meaning that the injury suffered by the victim cannot be regarded as insignificant.

The stress and anguish which the victim suffered is apparent that he, on at least one occasion and probably two occasions, became incontinent during the course of his detention. To the extent that one aspect of assessing the seriousness of a kidnapping offence is the anguish caused to the victim's family and friends, it was argued by the offenders' representatives that of the four men who were waiting at the police station, or at various stages, for their friend to be returned, two of them did not turn up to give evidence in the trial and had in fact returned to India. Nor was there any evidence that any one of them had suffered post traumatic stress disorder. It goes without saying that a person whose friend has been kidnapped does not have to suffer from post traumatic stress disorder in order for it to be a very distressing experience, nor do I regard as significant the fact that two of them returned to India and did not give evidence at the trial. The fact of the matter is that for over half a day, or at least for many hours, those friends of the victim were exposed to acute, obviously, distress as a result of their friend being kidnapped.

I do not regard as significant whether or not the knife which Mr Rana produced in Mr Mahay's presence to the victim was purchased in advance or not. The significance is that it was produced to the victim. I regard that as a matter which, so far as Mr Rana and Mr Mahay are concerned, aggravates the offence which was committed by them. It is not a factor which weighs against Mr Khan. I do not regard the production of the knife as something which is encompassed by the description of the offence. The offence is a kidnapping with an assault. The assault was inflicted by the beating. The production of the knife is not part of that and is an additional aggravating feature.

I now turn to consider the personal circumstances of each of the offenders. There was a pre-sentence report prepared for each of them and I will make brief reference to that.

I should add, in turning to Mr Khan first, that he has a criminal record. It was an offence committed in 1992 for possessing a prohibited weapon. He was given a good behaviour bond for that offence. It was submitted by the Crown Prosecutor that that should be regarded as an aggravating feature for Mr Khan because he has a criminal record. I do not accept that submission. I accept the evidence which he gave when Ms Stares called him about the circumstances in which he was convicted of that offence and I do not regard it as significant enough to take it into account as an aggravating feature.

Mr Khan's pre-sentence report refers to the fact that he had a disrupted childhood which I will return to in referring to his evidence. It refers to the fact that he has been married for over seventeen years. Mr Khan himself is now aged forty-three. He has a boy aged seven and is in a stable and supportive marriage. He has been always consistently employed in good employment. There are no drug or alcohol issues of any concern. There is a reference to what is described as a "significant lack of self assertiveness".

Ms Stares called her client to give evidence in the sentence proceedings. He obviously experienced a very distressing childhood. He had a violent father. He had his early years in Fiji, but came to Australia when his father required him to come across. Although he was meant to live with his grandparents over here, he was moved to his father where he experienced physical abuse. He was also abused in the sense that he was required by his father and his stepmother to effectively become a houseboy. His father was very aggressive to him physically. He stayed with his father until he was about fifteen or sixteen and then left home.

He also described his experience whilst in custody bail refused for this offence and described it as a most horrific experience and one which words could not explain. He indicated that, in custody, he was living in constant fear.

Mr Mahay has no record of criminal convictions. The pre-sentence report for him, although unverified, records that he was born in India and came to Australia in 2006 to study on a student visa. After he was charged or convicted - one or the other - of this offence, his student visa was replaced with a criminal justice visa which means that he cannot work. He did a university course in India and had employment here. He had the benefit of a supporting upbringing and Mr Mahay said to the probation officer that the victim owed him and one of the co-offenders seven thousand dollars, as they had previously lent this sum of money to him.

Mr Rana also has no previous convictions and was also born in India. He came on a student visa in 2005 and also had a stable family environment during his formative years. His late father in fact died during the course of the trial. His mother still lives in India and is not well. He has a brother who lives in Canberra. He too undertook tertiary studies in India and his student visa has expired. He has apparently had problems with alcohol in recent years and is currently also on a criminal justice visa.

37 Returning to Mr Khan, I find that he was - before committing this offence, despite the conviction which, as I say, I regard as relatively minor in light of his explanation - a person of good character. There are a number of glowing references which have been provided for him and which Ms Stares tendered. He is regarded as diligent and trustworthy, responsible and a very good family man who is involved in the community and in his family's life.

Each of the representatives made submissions about their respective clients concerning features which I should take into account under s21A of the Crimes (Sentencing Procedure) Act 1999 in mitigating the sentence. I do not accept any of the submissions to the effect that any injury was not substantial. That is not to say that I find that the injury was substantial, but I do not regard the injury as insignificant and I do not make that finding under s21A(3)(a) to the effect that it was not substantial.

Mr Mahay and Mr Rana were the obvious persons who initiated the physical steps involved in bringing the victim to Mr Khan's house. To some extent, that means that they may have planned or organized the events a little more than Mr Khan. As I said, I cannot be satisfied when Mr Khan actually became aware, but I am satisfied that he was there for the whole period of the crime.

I do not have, in my opinion, sufficient material to find that either Mr Rana or Mr Mahay are persons of good character, as distinct from taking into account, as I do for each of them, that they do not have any record of criminal convictions. I do not accept the submission that Mr Rana's brother reports that he is a person of good character as amounting to sufficient to make that finding.

I do find in respect of each offender that they are unlikely to re-offend. Both Mr Rana and Mr Mahay have no convictions and I do not regard Mr Khan's conviction as significant at all. This does appear to have been a one-off extraordinarily stupid enterprise for them all to become involved in and I do regard them as unlikely to re-offend.

I cannot assess their prospects of rehabilitation so far as Mr Rana and Mr Mahay are concerned, but I do have more material for Mr Khan. I have material concerning his family. I have heard evidence from him and I have the character references. I regard his prospects of rehabilitation as being good.

I have looked at the statistics produced by the Judicial Commission for this offence but, as was drawn to my attention, their value for an offence such as this is limited, as the Court of Criminal Appeal said in R v Newell [2004] NSWCCA 183. I have also referred to the Public Defenders' website which helped to provide me with an idea of the relative seriousness of offences such as this.

Given the finding that I have made about how serious a crime this was, I would regard an appropriate commencing sentence as one of six years imprisonment for each offender.

I regard Michael Khan's involvement as less serious for the reasons that I have given, but not significantly less serious. He was not aware that the knife was produced and the others brought the victim to his house. However he was present for the whole of the period of the detention. I do not accept that it was significant that he spent the night in his own bed instead of in the same room as the victim. I also take into account his character and prospects of rehabilitation but, once again, I have to maintain a degree of parity amongst the offenders.

I would regard an appropriate sentence for Mr Mahay and Mr Rana, taking into account the findings that I have made which would mitigate the sentence under s21A(3) of the Crimes (Sentencing Procedure) Act, as one of five years for each of Mr Mahay and Mr Rana.

For Mr Khan, I would regard an appropriate sentence as four and a half years.

It has been submitted to me that there are reasons for me to find special circumstances to adjust the normal ratio between the parole period and the non-parole period of a sentence. Normally that the non-parole period should be seventy-five percent of the overall sentence.

Mr Sandilands, for his client Mr Mahay, pointed out that this would be his client's first time in custody and that he is a relatively young man, being aged twenty-six. I accept those submissions.

Ms Hall, for her client, pointed out that Mr Rana is aged twenty-five and that it would be his first time in custody as well and that he would need some additional time on parole because of the reference to a problem with alcohol in the pre-sentence report.

Ms Stares argued for her client that it would be his first time in custody and pointed to his need for assistance when he is released so far as his personal development is concerned in ways referred to in the pre-sentence report and that he is also the father of a relatively young child. I accept that submission as well.

In each case, I regard there being special circumstances warranting my adjusting the normal ratio.

When they were arrested, each of Mr Khan and Mr Mahay and Mr Rana was refused bail and they have spent time in custody. The offence, if I did not say, occurred over the night of 4 to 5 September 2008. They were arrested on 5 September 2008. Mr Khan spent two months and three days in custody. Mr Mahay spent four months and twenty-six days in custody and Mr Rana spent three months and eighteen days in custody. I propose to backdate each of the sentences from today to take into account those periods of pre-sentence custody.

I propose in each case to fix a non-parole period which is about sixty percent of the full sentence instead of the normal seventy-five percent.

The commencement dates of the sentences are as follows. For Mr Khan, his sentence will commence, I direct, on 9 September 2010 which I estimate is two months and three days from today. Mr Mahay's sentence will commence on 18 June 2010 which I estimate is four months and twenty-six days from today and Mr Rana's sentence will commence on 26 July 2010 which I estimate is three months and eighteen days from today.

Mr Rana, would you stand up please? Mr Rana, I fix a non-parole period of three years to commence on 26 July 2010 and to expire on 25 July 2013. The balance of your term will be two years to commence on 26 July 2013 and to expire on 25 July 2015. Sit down.

Mr Mahay, I set a non-parole period of three years to commence on 18 June 2010 and to expire on 17 June 2013. The balance of the term will be two years to commence on 18 June 2013 and to expire on 17 June 2015.

Mr Khan, I set a non-parole period of two years and eight months to commence on 9 September 2010 and to expire on 8 May 2013. The balance of the term will be one year and ten months to commence on 9 May 2013 and to expire on 8 May 2015. Would you have a seat, Mr Khan?

HIS HONOUR: Now, I need to-- STARES: Check the dates. HIS HONOUR: Check the dates, exactly right because I may have got Mr Khan's wrong. I can tell you, these are the figures. Both Mr Mahay and Mr Rana have a five-year sentence with a non-parole period of three years. Mr Rana's sentence starts on 26 July 2010. Mr Mahay's sentence commenced on 18 June 2010. Mr Khan's overall sentence is four years and six months. His non-parole period is two years and eight months and the commencement date is 9 September 2010. So we will just do the figures. I think I have got Mr Mahay and Mr Rana, but I just was not sure about Mr Khan, and then I will explain it to them.

STARES: I think your Honour was attempting to reflect the head sentence of Mr Khan. Your Honour read out the right non-parole period date expiring, but to give effect to your Honour's order, that would end on 8 March 2015.

STARES: They both start with "M" so I can see how your Honour could make that error.

HIS HONOUR: Yes, no I - it should finish on 8 March 2015.

HIS HONOUR: All right now, ladies and gentlemen, any other matters that--

HIS HONOUR: There is no - I do not fix parole, do I? No, no orders for parole.

HIS HONOUR: No? All right. 59. Mr Rana, I have given you a five-year prison sentence. I fixed a non-parole period which you must stay in prison for of three years, but backdated the sentence. It has already commenced 26 July 2010. That is because you had time in custody and that is why I have backdated it. Your non-parole period expires on 25 July 2013 - 26 July 2013. You are in prison until then and then the balance of your term on parole will be two years from 26 July 2010 to 25 July; I am sorry 25 July 2013 to 25 July 2015. Whether you get parole is not a matter for me, but for the Parole Authority. Have a seat.

60. Mr Mahay, your sentence is the same as Mr Rana. I have given you a five-year gaol sentence. The non-parole period that you must stay in gaol for is three years. I have backdated your sentence to commence on 18 June 2010. That takes into account the period that you were in custody before. Your non-parole period of three years, therefore, expires on 17 June 2013. At that point, the Parole Authority decides whether or not you should get parole. If you get parole, then you have two years parole from 17 June 2013 to 17 June 2015. Do you understand that?

61. Mr Khan, for the reasons that I have given, your sentence is slightly less than the others. Your overall sentence is four years and six months. Your non-parole period is two years and eight months. That is also backdated because of the time you spent in custody. That commenced on 9 September 2010 and your non-parole period expires on 8 May 2013. You must be in gaol for that period. The Parole Authority then decides whether you get parole. If you do, then you have one year and ten months from 8 May 2013 to 8 March 2015. Your sentence, overall sentence, expires on 8 March 2015. Do you understand that?

HIS HONOUR: Is there anything else, ladies and gentlemen? STARES: No your Honour, I don't believe so. TITMARSH: No your Honour. SCHAUDIN: No your Honour.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.