Director of Public Prosecutions (Cth) v Amin
[2019] VCC 1282
•14 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01214
| DIRECTOR OF PUBLIC PROSECUTIONS (CTH) |
| v |
| NOMAN PERVEZ AMIN |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2019 | |
DATE OF SENTENCE: | 14 August 2019 | |
CASE MAY BE CITED AS: | DPP (Cth) v Amin | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1282 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Plea of guilty – one charge of use a carriage service to procure a person under 16 years of age for sexual activity – no prior criminal history – placed personal advertisement on Craigslist – online communication with undercover police officer – offender believed he was communicating and going to meet with a 15 year old girl – low risk of reoffending – recognisance release order.
Legislation Cited: Criminal Code Act 1995 (Cth), Crimes Act 1914 (Cth), Sex Offenders Registration Act 2004 (Vic), Sentencing Act 1991 (Vic).
Cases Cited:DPP (Cth) v Singh [2017] VSCA 146, The Queen v Fuller [2010] NSWCCA 192,
Sentence: Imprisonment for a period 18 months to be released forthwith on a recognisance of $2000 to be of good behaviour for a period of three years and complete the Sex Offender Treatment Program.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A Carlander | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr P Chadwick QC Dr M Fitzgerald | Doogue & George |
HIS HONOUR:
Introduction
1 Noman Pervez Amin, you have pleaded guilty to one charge of use a carriage service to procure a person under 16 years of age for sexual activity contrary to s.474.26(1) of the Criminal Code (Cth), which carries a maximum penalty of 15 years' imprisonment.
2 You have no prior criminal history.
Circumstances of the offences
3 A prosecution opening was tendered on the plea which may be summarised as follows:
4 In September 2017, you Noman Amin, posted a personal advertisement in the ‘Personals – Men Seeking Women’ section of the web based classifieds application, Craigslist, which is a general classifieds advertisement website. The advertisement was entitled ‘Seeking a young girl to chill with’ and included in the text of the advertisement were the words ‘I love the idea of being with a younger girl or a teen and please her in every way’.
5 Upon becoming aware of the advertisement, Victoria Police commenced an investigation. Between 5 October 2017 and 27 February 2018, you participated in online and text based communication with a user who you initially believed to be a 14 year old female named Cassie Murphy, however the user later said she was 15. Cassie Murphy was in fact an undercover police officer, Detective Senior Constable Kellie Mervin.
6 Details of a number of communications between you and Detective Mervin have been reproduced in the prosecution opening. As such I will only briefly summarise the relevant conversations in these sentencing reasons.
7 Following an initial conversation on 5 October 2017, on 6 October 2017 ‘Cassie’ indicated to you that she was 14 years old. You said you were 29.
8
On 7 October 2017, you invited Cassie to add your ‘Kik’ profile which is ‘Noman231’. Kik is a phone instant messaging application. On 8 October 2017, you commenced communicating with Cassie via the Kik application. On
13 October 2017, Cassie provided you with a mobile telephone number. You sent Cassie a text via that phone number and called her a number of times which resulted in unanswered calls.
9 On 14 October 2017, you and Cassie engaged in conversation via Kik. You indicated that you would like to role play with her ‘like teacher and student’. You also stated ‘do you get turned on at night’ and ‘I’ll make you ticklish all over your body. May be little wet down there. Would you like it’.
10 On 16 November 2017, you sent Cassie an image of your erect penis on Kik asking her if she liked it.
11 On 1 January 2018, the communication between you and Cassie ceased before recommencing on Kik on 17 January 2018 where you asked if you could recommence texting with her.
12 On 26 January 2018, you engaged in a conversation with Cassie on Kik where Cassie asked you if you remembered how old she was. You said ‘No I don’t Lol 16 right?’ Cassie replied ‘Nope 15 I told u b4 lol’. You continued to chat in relation to possibly meeting with Cassie.
13 On 11 February 2018 you engaged in a SMS test exchange with Cassie again seeking to meet up with her. You also said ‘When do you turn 16’. On the same day you asked Cassie ‘Btw when do I get that pic. The one with the nickers’. You also offered to send phone credit to Cassie. Between 5 February and 26 February 2018 Detective Mervin sent you multiple images purporting to be from Cassie including photos of legs and lace underwear.
14 On 12 February 2018, you had a discussion with Cassie in relation to visiting her near her school. On the next day she indicated to you that her school was Pascoe Vale Girls College. On 13 February 2018, you drove past the Pascoe Vale Girls College on three separate occasions in a short period of time. While you did this you continued to communicate with Cassie asking her to come out of class to meet you. On the same day following further conversation, you sent Cassie another photograph of your erect penis.
15 On 20 February 2018, you deposited $20 credit into the pre-paid phone account for the telephone number that Detective Mervin had provided. You used your own credit card.
16 Also on 20 February 2018, you had a further exchange which included the following messages by you: ‘It would have been nice if you were 16’; ‘..would be nice to hug you in bed’; ‘Making me crazy. Will you delete our chat for tonight? When we finish I will do the same’; ‘..will you let me touch you down there…where its warm and wet’; ‘Would you let me kiss you down there. Suck on it’; and ‘Yes baby we trust each other and should always delete chat so we don’t get in troubles deal?’
17 While communicating with Cassie on 20 February 2018 you sent her an image of yourself from the waist down holding your groin area over a pair of black coloured shorts you were wearing. You sent a second image of a close up of your erect penis.
18 On 22 February 2018, you sent a message to Cassie including the words ‘Would you want me to spread your legs and kiss your pussy. Lick it’, and ‘Gentle kissing on ur nipples…Baby can I see them’.
19
On 27 February 2018, you and Cassie arranged to meet at the Coles Supermarket in North Coburg at approximately 12 noon that day. You stated that you and Cassie could chill in the car and drive around and then you would drop her home. You travelled to the Coles supermarket and arrived at
12.04 pm. You parked and sent a message to Cassie saying ‘Just in Coles parking’. At 12.06 you were arrested as you exited your vehicle.
20 In a field interview you stated: that you knew what the rules are; that you were not going to do anything; that you were not sure how old she was; that you were sure she was not under 16; and that you had no intention to get physical.
Nature and gravity of the offending
21 I turn to the nature and gravity of your offending.
22 Procuring a person under 16 years of age in order to engage in sexual activity is recognised by Parliament as a serious offence which is reflected in the maximum penalty of 15 years' imprisonment. Further the seriousness of the offence has been reinforced in recent decisions in the Court of Appeal. In Director of Public Prosecutions (Cth) v Singh[1] the Court noted:
'These provisions, and related provisions prohibiting the use of the internet and other forms of communication for the purpose of seeking sexual involvement with children, are designed to protect young people from the considerable harm that may be done to them by such communications, even if physical sexual activity does not ensue. It is well established that persons who use the internet for such purposes will ordinarily expect to receive an immediate term of imprisonment. Deterrence, both general and specific, is the paramount sentencing consideration. It follows that less weight, relatively speaking, will be accorded to what might otherwise be significant mitigating factors.[2]
The seriousness of the offence under s.474.26(1) is not to be underestimated. The conduct which it prohibits is insidious and often highly damaging. The offending is calculated to harm children who are vulnerable to abusive, predatory approaches, which are of their nature liable to be kept secret from third parties. The maximum penalty for the offence is very substantial. The authorities are clear that the offence usually merits a term of immediate imprisonment. Lesser sentencing dispositions should be very rare. While there are a number of instances of noncustodial sentences having been upheld after appeal, several of them turned on features peculiar to Crown appeals. None of them should be seen as anything other than exceptional.'[3]
[1] [2017] VSCA 146.
[2] Ibid at [45] (citations omitted).
[3] Ibid at [64].
23 In this instance you were informed in the early stages that the recipient of your communications was 14 years old, and later you were informed that she was 15. Thus you were aware from the outset of the age of the person that you then continued to communicate with. The communication went on for a protracted period of some four and a half months becoming increasingly salacious, although I accept the submission made on your behalf that the communications were not of the highly depraved kind and did not contain any threats or demands.
24 In this case the recipient was a police operative. In that regard I note that while the presence of an actual victim may aggravate the offence, the absence of a victim will not mitigate it.[4]
[4]The Queen v Fuller [2010] NSWCCA 192 at [35]. Seee also s 474.28(9) of the Criminal Code (Cth).
25 It was also submitted on your behalf that the offending was not sophisticated in the sense that you used your own personal phone number and a Kik messaging account in your own name. Further you advertised in an open internet forum in the ‘Men Seeking Women’ category and not within sites or chartrooms frequented by children. I accept that your offending was rather immature and opportunistic, however you made it very clear from the outset that you were seeking a ‘younger girl’ or ‘a teen’ and that you did not mind ‘any one even in high school’.
26 Thus while your offending may not be viewed as in the worst category, because of the protracted nature of the communications which reflects a degree of trust building within the recipient, together with the fact that you attempted to meet the recipient on one occasion and planned to meet her on a second occasion, in my view still represents a serious example of an offence of procuring a person under 16 to engage in sexual activity.
Personal circumstances
27 You are 38 years of age and the eldest of three children. You also have an older stepbrother and stepsister from your father’s first marriage. You were born and raised in Lahore, Pakistan. You were raised in a relatively strict family committed to their Muslim faith. Your parents remain in Pakistan and you have not notified them of the charge as result of your feelings of shame.
28 You completed your schooling in Pakistan achieving good results. You then attended university where you completed a Bachelor of Computer Science. You had an interest in information technology and subsequently assisted your cousin in developing a software business which was very successful. You worked in that business for approximately six months before migrating to Australia in 2004 in order to further your career opportunities.
29 You completed a Masters of Information Technology at Deakin University and worked part-time while completing those studies. You were then employed at Deakin University for 18 months where you assisted in developing new features for the IT network. You then worked for several large companies in Melbourne in relation to software development and website design. You currently operate your own software development company which provides services to a Chinese hardware manufacturer. You also employ a small team of software engineers based in Pakistan. In addition to your software company, you and your wife also operate a business through eBay which sells electrical products that you import.
30 You met your wife in Pakistan in 2011. You were married in 2012 and your wife joined you in Australia. You have two children together aged six and two.
31 In the months leading to the commission of the offence your relationship with your wife had come under strain due to a number of factors. Your wife fell pregnant in the first half of 2017 and as your youngest child was still under 12 months of age at the time, you were both concerned that you would not be able to support another child. These concerns strained your relationship and ultimately it was decided that your wife would undergo an abortion in June 2017. In addition to that pressure, you had been involved in making arrangements for your younger sister to marry in Pakistan. That marriage failed and you felt personally responsible. Your sister came to Australia to stay with you and this too added stress to your relationship with your wife. You noted to your psychologist that the cumulative effect of these events created a sense of distance and detachment within your marriage. You engaged in behaviours that led to the offending, accessing internet chat rooms and pornography. You also reported that your use of alcohol increased during this period.
32 Two psychological reports were tendered on the plea. The first report was prepared by Dr Mathew Barth, psychologist, who conducted some testing and provided opinions on your risk of recidivism. The second report is essentially a progress report prepared by Jeffrey Burroughs, forensic counsellor, in relation to your treatment on the Sex Offender Treatment Program, which has been reviewed and approved by Dr Barth.
33 Dr Bath provides a detailed history and notes that despite your sound intelligence, you lack coping strategies and social skills to deal more affectively with personal stressors. The stressors he refers to are detailed in the report but relate to issues in your marriage and your emotional stress which is largely as a result of your response to the current charge.
34
Dr Bath reviewed your history in order to form an opinion as to your risk of recidivism for sexual offending. In undertaking that assessment he noted that specific risk assessment tools are not available for use with individuals charged solely with online offences. Nonetheless, in view of the historical risk factors, Dr Bath states that they indicate a relatively low risk of recidivism. However when taking into account what he refers to as ‘dynamic risk factors’ including poor coping skills and intimacy deficits, your risk level rises into the
low-moderate range.
35 Mr Burrows has, at the time of writing his report, conducted 11 counselling sessions with you as part of your voluntary participation in the Sex Offenders Treatment Program. He notes that you have cooperated in the program and shown your desire to continue with treatment. In summary, Dr Burrows states that while you have made good progress in the program, further intervention is required for you to continue developing insight into your offending behaviour, enhancing your social and coping skills and consolidating your victim empathy and your relapse prevention plan. I note that in this context Dr Bath states that provided you continue to participate in treatment in an engaged manner, your risk of reoffending is likely to reduce.
36
Three reference letters were tendered on your behalf from Imran Abbas,
Dr Sajid Qayyum and your wife, Gulmohar Noman.
37
Mr Abbas is a colleague who works very closely with your company. He speaks highly of your skills in the business you run and your commitment to clients.
Dr Quayyum is a medical practitioner working in a specialised field in Pakistan. He reports that you have been an important part of the charitable organisation he runs in relation to treating patients with TB. He states that you have made substantial financial donations to the charity and that you are the regional president of the organisation in Australia. He also notes that in his view your involvement in this offence is totally out of character.
38 Your wife writes that although the experience of this process has been traumatizing, it has also provided an opportunity for you and your wife to confront issues in your relationship and she believes that as a consequence, it has made your relationship stronger. She notes that in the past 18 months since the offending occurred, she has observed you to be remorseful. You have sought her forgiveness and she states that she will continue to fully support you through the sentencing process.
Sentencing considerations
39 As the charge to which you have pleaded guilty is a Commonwealth charge, I am required to take into account a number of matters pursuant to s.16A of the Crimes Act 1914 (Cth). Ms Carlander who appeared on behalf of the Commonwealth Director of Public Prosecutions, highlighted a number of the matters in s.16A(2) that must be given weight and I have taken those matters into account. In cases such as this it was submitted, and I agree, that general deterrence must be the paramount sentencing consideration. Further, as noted above in Singh, in relation to offences of this nature, matters in mitigation carry less weight.
40 I take into account your plea of guilty which was entered at the final directions hearing. No application was made for a contested committal and the matter resolved following negotiations in relation to other charges that were ultimately withdrawn. While the plea may not be considered as having been entered at the earliest opportunity, your plea still demonstrates your acceptance of responsibility, has saved the time and expense of a trial and has therefore facilitated the course of justice.
41 It was submitted that you had expressed genuine remorse and demonstrated insight in relation to your offending. After considering the psychological materials, I do accept that you have developed insight which is an ongoing process as part of your treatment and counselling. As to genuine remorse, I accept the observations of Dr Bath where he noted that you realise that your behaviour was inappropriate, misguided and harmful. He noted your words to him where you said ‘I’m so glad it wasn’t a real girl. I made a huge mistake, what I did was very bad’.
42 As to your prospects of rehabilitation, in my view in light of the steps you have taken in response to this offending, together with the support you have in the community, your prospects are able to be assessed as very strong. You have no prior criminal history, you have been in continuous employment, you give your time and financial assistance to a charity and you are otherwise of good character. You also enjoy the continued support of your wife and business colleagues despite their knowledge of this offending. Further you are committed to continuing your treatment and counselling in order to further improve your insight and reduce your risk of reoffending.
43 Specific deterrence is also an important consideration in relation to this category of offending, however for the reasons already noted in relation to your ongoing treatment, your lack of prior criminal history and your excellent prospect of rehabilitation, in my view specific deterrence need not carry great weight in the sentencing equation.
44 Mr Chadwick who appeared with Dr Fitzgerald on your behalf submitted that a community correction order is in all the circumstances within range. As such, I had you assessed for such an order and you were assessed as a low risk of reoffending.
45 Ms Carlander submitted that an immediate term of imprisonment is called for in this instance. While accepting the limitations on the utility of the provision of comparable cases, both Mr Chadwick and Ms Carlander provided me with a number of appeal decisions and sentences of this court which I have taken into account.
46 Nonetheless, the offending is serious offending and in my view, pursuant to s.17A(1) of the Crimes Act 2014, I am satisfied that no other sentence is appropriate other than a term of imprisonment. However I am also of the view that the relevant sentencing considerations are able to be met by a sentence that will allow you to remain in the community to continue your rehabilitation.
Sentence
47 Mr Amin please stand.
48 Noman Pervez Amin, on Charge 1, use a carriage service to procure a person under 16 for sexual activity, you will be convicted and sentenced to 18 months' imprisonment.
49 Pursuant to s.20(1)(b) of the Crimes Act 1914, I direct that you be released forthwith upon giving a recognisance in the amount of $2000 and to be of good behaviour for a period of three years. Further that as a condition of the recognisance release order you must complete the Sex Offender Treatment Program.
50 Further, the offence to which you have pleaded guilty is a Class 2 offence pursuant to the Sex Offenders Registration Act 2004 and is a registrable offence. You will therefore be required to comply with reporting obligations for a period of eight years.
51 Pursuant to s.6AAA of the Sentencing Act 1991, if not for your plea of guilty I would heave sentenced you to a period of imprisonment of two years to be released on a recognisance release order with conditions after serving a period of eight months.
52 Thank you, you can take a seat.
53 Ms Carlander, the condition that I have nominated is specifically to complete the sex offender treatment program. The draft order that you provided to my associate doesn't actually nominate or entitle - the program the way you've drafted it doesn't use that term. So I'm just wondering if we might be able to redo that.
54 MS CARLANDER: Yes, Your Honour.
55 HIS HONOUR: But I don't think we can because Mr Amin has to sign it today. So whether we can handwrite it in and I'll get my associate to give it to you.
56 MS CARLANDER: Yes, Your Honour.
57 HIS HONOUR: All right. Yes and also part of the draft you gave us sort of includes the reporting as well, which is a separate order, which he'll sign separately. So what I might do is I'll just get my associate to include what we think is required in the version he has on his screen. I'll get him to then show that to you and - - -
58 MS CARLANDER: Yes, Your Honour.
59 HIS HONOUR: - - - and Mr Chadwick to make sure that's all right. And also my associate will have to approach Mr Amin to sign the reporting document. We'll just wait while that occurs. Otherwise, was there anything arising out of any of that that you wanted to raise with me?
60 MS CARLANDER: Nothing (indistinct words.)
61 MR CHADWICK: Can I look at the forfeiture order?
62 MS CARLANDER: That was - - -
63 MR CHADWICK: Was that signed last time, was it? Yes.
64 HIS HONOUR: Yes, I don't think there's any other ancillary orders.
65 MR CHADWICK: No, Your Honour.
66 HIS HONOUR: Just make sure Mr Chadwick's happy with that as well.
67 MR CHADWICK: Hang on, is that meant to be the Office of Corrections or Burrows program?
68 ASSOCIATE: Mr Burrows.
69 HIS HONOUR: I don't think it can refer to the Office of Corrections, that's the whole thing. I've not had him assessed by anyone, we can't just throw someone into that supervision.
70 MR CHADWICK: No, it might be - - -
71 HIS HONOUR: The intention is very clear that the sex offender treatment program is well known in our state.
72 MR CHADWICK: Yes.
73 HIS HONOUR: And that's the one that is being administered at the moment.
74 MR CHADWICK: Yes, that's correct, yes.
75 HIS HONOUR: And the intention is that he continue to do that until - - -
76 MR CHADWICK: That's - - -
77 HIS HONOUR: - - - satisfactory completion of that.
78 MR CHADWICK: Yes, that - - -
79 HIS HONOUR: I think it's understood what's intended.
80 MR CHADWICK: That's correct, I was just making sure about that, yes.
81 HIS HONOUR: But somehow the wording in one of those documents suggested it was somehow going to be monitored by Corrections, it's not.
82 MR CHADWICK: That was what I was just - - -
83 HIS HONOUR: I've not imposed a community correction order.
84 MR CHADWICK: No.
85 HIS HONOUR: If I did they would then, I assume, just handball him off to what he's doing already.
86 MR CHADWICK: Well, one would hope that. No, but on this - - -
87 HIS HONOUR: So it's the same program.
88 MR CHADWICK: Yes, so the sex offender treatment program as administered by Mr Burrows.
89 HIS HONOUR: Well, you can add those words if that would make it clearer.
90 MR CHADWICK: It might be better.
91 HIS HONOUR: All right, we'll add those words.
92 MR CHADWICK: Yes.
93 HIS HONOUR: And have it reprinted. Or perhaps, 'Under the supervision'. I think I - - -
94 MR CHADWICK: 'Under supervision' - - -
95 HIS HONOUR: 'Of Dr Bath'.
96 MR CHADWICK: 'Of Dr Bath', might be better.
97 HIS HONOUR: Yes, I think that would be better.
98 MR CHADWICK: That would better.
99 HIS HONOUR: Because he may have a different nominee.
100 MR CHADWICK: That's correct.
101 HIS HONOUR: But he's the one supervising.
102 MR CHADWICK: Yes, 'Under the supervision of Dr Bath would be better'.
103 HIS HONOUR: Doctor - what's his first name?
104 MR CHADWICK: Mathew.
105 HIS HONOUR: Mathew Bath, yes.
106 MR CHADWICK: Yes, that might be better.
107 MS CARLANDER: Thank you, I'm satisfied with that. I apologise for the confusion with the other - - -
108 HIS HONOUR: No, that's all right.
109 MR CHADWICK: No, don't - you aiming to anticipate?
110 HIS HONOUR: Look, while that's being undertaken, Mr Amin, I'm required as a matter of law to explain to you what that sentence means. And what it is, is perhaps another way of saying it's like a suspended gaol sentence. So you've been given a gaol sentence of 18 months' imprisonment, but it hangs over your head for the next three years and you are required to be of good behaviour. That means if you commit another offence or don't comply with the conditions of the order then you may be brought back before me and you risk going to gaol for 18 months; do you understand?
111 OFFENDER: Yes, sir.
112 HIS HONOUR: And you'll forfeit that amount of money as well, the $2,000. But the main purpose of this is that it is a term of imprisonment, served in the community, effectively, and that you are required to continue the treatment that you're doing, which is the sex offender treatment program. Which is administered by Dr Bath and Mr Burrows at this stage, and you are to continue to do that and complete that program.
113 OFFENDER: Yes - yes, Your Honour.
114 HIS HONOUR: All right, thank you.
115 MS CARLANDER: Thank you, Your Honour.
116 HIS HONOUR: Yes. All right, thank you, we'll adjourn until 10.30.
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