DPP v Khan [2024] ACTSC 19

The legal action before the court is a criminal case in which Majad Khan has pleaded guilty to the charge of dishonestly obtaining property by deception, as outlined in section 326 of the Criminal Code 2002 (ACT). The nature of this action involves the prosecution by the Director of Public Prosecutions against Khan, who, along with co-offenders, engaged in a scheme to defraud a supplier of e-cigarettes by pretending to pay with paper that resembled cash.

The court expressed concerns regarding the use of generative artificial intelligence (AI) in the preparation of character references submitted during the sentencing of Majad Khan. Specifically, it noted that a character reference from Khan's brother appeared to be generated or rewritten with the assistance of a large language model, such as ChatGPT. The court highlighted that the language and structure of the reference were inconsistent with what one would expect from a personal reference written by a family member, raising doubts about its authenticity and reliability.

The court emphasised the importance of ensuring that personal references used in sentencing proceedings are genuine and not artificially generated. It stated that if such references are not objected to on the basis of being AI-generated, it becomes challenging for the court to assess the weight that can be placed on the facts and opinions contained within them. The court also indicated that counsel should make appropriate inquiries to determine whether any reference has been prepared with the assistance of AI or automated translation software.

Ultimately, while the court acknowledged the presence of other character references that did not exhibit similar issues, it placed little weight on the reference from Khan's brother due to the concerns raised about its authenticity.

The remedy being sought in this case is a sentence for the offender. The court is tasked with determining an appropriate punishment for Khan's actions, considering factors such as the seriousness of the offense, his personal circumstances, and the need for deterrence and denunciation of the conduct. Ultimately, the court imposes a suspended sentence of imprisonment along with a fine, reflecting the need for accountability while also considering the offender's background and potential for rehabilitation.

Majad Khan, along with co-offenders, engaged in a premeditated scheme to defraud a supplier by pretending to purchase e-cigarettes with envelopes containing paper that resembled cash. The offense occurred on 15 May 2021, when Khan was involved in the transaction that led to the theft of property valued at $63,600. Despite his guilty plea, the court noted the absence of a clear explanation for his involvement, which complicated the assessment of his remorse and culpability. Additionally, character references submitted on his behalf raised concerns about their authenticity, suggesting they may have been generated or heavily influenced by artificial intelligence, which affected their weight in the sentencing process. These factors contributed to the court's decision regarding the appropriate sentence, balancing the need for punishment with Khan's personal circumstances and low risk of reoffending.

What is the appropriate sentence for Majad Khan, given his guilty plea to the charge of dishonestly obtaining property by deception, considering the seriousness of the offense, his personal circumstances, and the authenticity of character references submitted on his behalf?

The case illustrates the general principle of law that sentencing in criminal matters must balance the seriousness of the offense with the offender's personal circumstances, including their background, character, and potential for rehabilitation, while also considering the need for deterrence and denunciation of the conduct. Additionally, the integrity and authenticity of character references presented during sentencing can significantly impact the weight given to an offender's personal circumstances in determining an appropriate penalty.

In applying the general principle of law regarding sentencing, the court assessed the objective seriousness of Majad Khan's offense, which involved a significant financial loss to the victim and a premeditated scheme to deceive. The court considered Khan's personal circumstances, including his age, lack of prior criminal history, and his role in caring for his mother, which indicated potential for rehabilitation. However, the court also noted the concerns regarding the authenticity of character references, particularly one that appeared to be influenced by artificial intelligence, which diminished its credibility and weight in the sentencing process.

Ultimately, the court decided to impose a sentence of 21 months and 15 days of imprisonment, which was wholly suspended, along with a fine of $6,000 payable within two years. This decision reflected a balance between the need for accountability for the serious offense and the recognition of Khan's personal circumstances and low risk of reoffending.

In its reasoning process, the court relied on the case of DPP v Osmani (No 2) [2023] ACTSC 128, which provided guidance on the appropriate sentencing framework for similar offenses. Additionally, the court referenced R v Rhodes [2022] ACTSC 182, which also addressed sentencing considerations in cases involving joint commission of offenses and the assessment of co-offenders' roles. These cases helped inform the court's approach to determining the appropriate sentence for Majad Khan, considering the objective seriousness of the offense and the subjective circumstances of the offender.