STATE OF TASMANIA v JOSHUA ALI KHAN 10 APRIL 2025
COMMENTS ON PASSING SENTENCE MARSHALL AJ
Mr Joshua Ali Khan is the subject of an application by the State to activate a suspended sentence imposed on him by Brett J on 4 July 2018. On that day he was sentenced to a term of imprisonment of 18 months, which was wholly suspended for two years upon conditions including that he commit no offence punishable by imprisonment during that period. Other conditions included a condition requiring him to perform 210 hours of community service as directed by a probation officer.
The offending which led to the imposition of the suspended sentence comprised two counts of assault contrary to s 184 of the Criminal Code and two counts of stealing contrary to s 234 of the Code. The date of the offending was 22 September 2016. At that time Mr Khan was 19 years old.
The circumstances of the offending were that Mr Khan, in the company of a co-offender, aggressively pursued a confrontation with two men affected by alcohol, including one man who was visibly incapacitated by alcohol and another who pleaded for the assault to stop. Mr Kahn beat one of the men until that man lost consciousness and then attacked the other man. There was no provocation from either victim and they did not offer any serious resistance. After the assault, Mr Khan stole personal property from the victims including their mobile phones and their wallets.
On 1 September 2021, the State applied to activate the suspended sentence due to Mr Khan’s failure to comply with conditions of the order regarding community service.
The matter came before Brett J on 3 November 2021. His Honour refused to activate the suspended sentence of 18 months’ imprisonment, instead he ordered under s 27(4E)(c) of the Sentencing Act (the Act), that the operational period of the suspended sentence be extended by 12 months until 22 November 2022, on the original conditions, as well as a condition that Mr Khan submit to assessment for the EQUIPS Program, and if found suitable, complete that program as directed by a probation officer.
Mr Khan’s compliance with his community service obligations was unsatisfactory as was his compliance with directions of a probation officer. At the expiry of the operational period of the suspended sentence on 22 November 2022, Mr Khan had 117 hours of community service yet to complete.
Mr Khan was convicted of new offending during the currency of the suspended sentence. One offence in that new offending was of a similar nature to the offending, the subject of the sentence of Brett J in 2018. That was an offence of common assault, under s 35(1) of the Police Offences Act 1935, by producing a knife and yelling at a complainant that he would “slit your jugular”. No actual wounding occurred beyond the threat with a weapon.
Counsel for Mr Khan informed the Court that her client is now 28 years of age, some 9 years older than he was at the time of the offending which led to the imposition of a suspended term of imprisonment by Brett J. At the time of the offending he was classified as a youthful or young offender. He was 21 years old by the time he was sentenced.
The original suspended sentence imposed by Brett J expired on 4 July 2020. Before the expiry of the suspended period, Mr Khan failed to meet his community service obligations under that sentence and not because of any new offending.
As a result of a breach application by the State the operational period of the suspended sentence was extended for a further 12 months. Soon after, Mr Khan experienced a series of personal tragedies with the death of a number of close friends, this led him into a downward spiral which coincided with the 12 months extension of the suspended sentence. During that time he failed to complete all of his community service and committed some new offending including the offence referred to above, under the Police Offences Act. The offending which led to the current application to create the suspended sentence occurred on 31 August 2022, some three months prior to its expiry.
Mr Khan currently resides in rented accommodation in Rokeby. He is the sole lessee and pays his rent for those premises. He has been living there for 12 months. Prior to that he resided with his mother.
Mr Khan has had a troubled history and a difficult childhood, including dealing with an abusive father, both in relation to himself and his mother. When he was 15 years of age he was incarcerated at Ashley Youth Detention Centre. The offending was a direct result of the treatment he experienced at home which led him to develop anxiety and depression. He has also received a diagnosis of ADHD.
When at Ashley he suffered abuse and was part of a class action against the State in relation to that abuse. The abuse gave him issues with anger management.
Since he was sentenced in 2018 by Brett J, Mr Khan has subsequently been engaged in a long term relationship, he became a father and has engaged in paid work. This calmer life was interrupted in late 2021 to early 2022 by the tragic events to which I have referred to earlier. During that period he was also getting through the breakdown of his long term relationship. Since early 2022 Mr Khan has made good progress and is no longer engaged in what he described as “self-destructive” behaviour. He has recently made some efforts to contact Community Corrections to see if he could make up his shortfall of his community service obligations.
Mr Khan is also undertaking counselling through Relationships Australia with his former partner, the mother of his child. The two are successfully co-parenting their daughter. Mr Khan has taken steps to become physically fit because that assists him in maintaining good mental health. He is now working full-time with Fast Built, a Housing Industry Association member, where he is involved in residential construction tasks. His employer considers him to be an integral member of his business and a valued employee.
In addition to his full-time work, Mr Khan is studying to become a personal trainer. At present everything is going well for Mr Khan. He is currently subject to a suspended sentence of 5 months’ imprisonment relating to Magistrates Court offending which will be active until 16 August 2026. The question for the Court to determine is whether or not it would be unjust to activate the suspended sentence originally imposed and extended by Brett J. I consider that it would be unjust to do so by regard to the following circumstances:
- In 2018, it was not open to Brett J to impose a Home Detention Order in lieu of a suspended term of imprisonment.
- The offending which gave rise to the application to activate the suspended sentence was of lesser significance than the original 2016 offences.
- At the time of the offending in 2016, Mr Khan was a youthful offender, no doubt impacted by the abuse he had suffered at Ashley.
- Mr Khan is now 28 years old, gainfully and successfully employed, has stable rental accommodation, and successfully co-parents an infant. He may be considered a success story given the trauma that has occurred previously in his life as referred to earlier in this decision.
- No useful purpose would be served by activating the 18 month sentence of imprisonment at this time and it would be counter-intuitive in the circumstances to do so.
- Mr Khan has not engaged in any new relevant offending since the August 2022 matters which included the common assault charge.
In all the circumstances, under s 27(4)(d) of the Act the Court makes no order in respect of the suspended sentence. In doing so it notes the willingness of Mr Khan to engage with Community Corrections to undertake the unexpired hours of his community service obligations which are required under the suspended sentence.