Director of Public Prosecutions v Alam
[2015] VCC 1766
•27 November 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00242
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAMSUL ALAM |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 November 2015 | |
DATE OF SENTENCE: | 27 November 2015 | |
CASE MAY BE CITED AS: | DPP v Alam | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1766 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of indecent assault and one charge of theft – 19 year old offender – no prior criminal history – Rohingya refugee from Burma – very poorly educated with minimal English from deprived and traumatic background – sexually inexperienced and affected by alcohol to which he was unaccustomed – remorseful plea of guilty – onerous conditions on remand in adult custody – Major Depression – application of principles 2 to 6 of Verdin’s case – total effective sentence 251 days’ imprisonment and CCO of 2 years
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Hammill | Solicitor for Office Public Prosecutions |
| For the Accused | Ms J Munster | Victoria Legal Aid |
HER HONOUR:
1 Shamsul Alam, you have pleaded guilty to one charge of indecent assault, which carries a maximum penalty of 10 years' imprisonment, and one charge of theft, which carries a maximum penalty of 10 years' imprisonment.
2 The circumstances of your offending are summarised in the Crown opening on the plea hearing (Exhibit “A”). At approximately 8.15pm on 30 June 2014, your victim, a thirty year old woman, was walking home from the Noble Park railway station. You tried to engage her in conversation and asked her many questions. She was polite, but continued on her way. You then manoeuvred yourself in front of her, telling her that you wanted to be her friend and on a couple of occasions bent down and touched her foot, which your victim took to be a mark of respect. She tried to get passed you, but, when you persisted in blocking her path and trying to talk to her, she turned around to go back to the train station for help. You then grabbed her right hand and, although she was resisting, forcefully, kissed her, biting her lips, which caused pain. A struggle ensued in which your victim fell to the ground and was loudly screaming for help. You fell on top of her and continued to kiss her and bite her lips. Your victim was struggling and screaming and you grabbed her pants and tried to remove them. Your victim kicked herself free and you ran from the scene, stealing her mobile phone as you left.
3 Following investigations, the police attended the place where you were living and found your victim’s phone in your room which had had its SIM card replaced by one registered in your name. A DNA sample taken from you matched a beanie which had fallen from your head and had been left at the scene. You were arrested and interviewed. During your Record of Interview, you either denied the offending or made a “no comment” response to police questions. You were charged with the offences and ultimately pleaded guilty to the charges on 12 October 2015, the date upon which your matter was listed for trial before me in the County Court.
4 You are presently aged twenty years, having been born on 8 February 1995 in a fishing village in West Burma. You come before the Court with no prior convictions.
5 In a comprehensive plea on your behalf by Ms Munster, the Court was told that this offending occurred in the context of you having arrived in Melbourne approximately seven months earlier, having been granted a bridging visa by the Department of Immigration. You are a member of the Muslim Rohingya community, a persecuted minority from Burma, and had been taken in as an apparent stranger by a Rohingyan person living in Melbourne. You were lonely, isolated and without any family support or guidance. In addition, on the day of offending, you had been given alcohol to drink by some other young person or persons. The consumption of alcohol is something which was foreign to you and, indeed, prohibited by your religious tradition. The offending took place in the context of your being intoxicated. You apparently have limited recollection of the circumstances of the offending, but have pleaded guilty to the offences anyway.
6 As previously mentioned, you were born into the persecuted minority of Rohingyan people in Burma. You are the only son of the family and when you were approximately one year old, your father fled Burma, leaving you with your mother and sisters. The Court was told that your childhood was marked by hunger, deprivation and violence. You had only two years of formal education between the ages of either seven or eight or nine or ten at a local school. Your mother ran a market stall making and selling pancakes and, from approximately the age of ten years, you were taken out of school in order to assist her with her stall to support the family. You subsequently worked as a fisherman from the age of twelve to seventeen years. However, your village was subjected to repeated violent attacks and, amongst other things, as a child, you witnessed the death of three persons in this context. In 2012 your village was again attacked and burnt to the ground. You and your sisters and mother fled to a refugee camp in Burma for six months and then to Malaysia. Apparently you were reintroduced to your father (who had re-partnered) and he borrowed money to fund your journey to Australia. You travelled from Malaysia to Thailand and then to Indonesia, where you boarded a boat with 72 other refugees from various countries. None of these people were known to you. You arrived in Darwin on 14 April 2013, a couple of months after your eighteenth birthday. You were held in an immigration detention centre for two months near Darwin and then released on a bridging visa on 13 June 2013. You were flown to Brisbane and given subsistence funds and a AMES case worker. You were given accommodation with three people who had arrived on the same boat as yourself, but they ultimately left. You were alone as an eighteen year old in Brisbane and received advice that it might be in your best interest to move to Melbourne, where there was a somewhat larger Rohingyan population. Thus, you arrived in Melbourne in October 2013 as I have previously mentioned.
7 On 5 September 2014, you were remanded in custody and spent a period of eight months at the Metropolitan Remand Centre. A remand report concerning your prison history was tendered as Exhibit 4. This shows that for substantial periods of time in the Remand Centre you were held in a protection unit, which is understandable as you were nineteen years old, had very poor English, indeed, and no prior criminal history, but were in an adult prison. I accept your counsel’s submission that the eight months you spent at the Metropolitan Remand Centre was a period where you felt very isolated, linguistically and culturally, as there were no other Rohingyan people to whom you could speak. You were frightened and alone and unable to contact your family. You were anxious about whether your mother and sisters were safe and concerned that they would be worried about where you were. When you granted bail on 13 May 2015, you were bailed to be under the direction of the Immigration Department and were taken forthwith to the Maribyrnong Detention Centre where you have remained ever since, for the last 6 ½ months. Your movements there are still obviously restricted but you have managed to contact your family and they are distressed and angry about your offending.
8 Tendered as Exhibit “2” on the plea was a report from Dr Zimmerman, consultant psychiatrist, dated 25 November 2015. Dr Zimmerman noted much of your personal history in Burma, to which I have already referred. She took a further history that the conditions on the boat with the 72 other refugees were horrific, with no food and little water to drink and that you endured six days of wild weather with water coming onto the boat and being buffeted by rain and wind. She took a further history that, whilst on remand at the Metropolitan Remand Centre, you were frightened that you would be harmed and were initially relieved to be bailed to the Maribyrnong Detention Centre. However, there are no other Rohingyan people there. You share a room with four others but keep to yourself. Initially you would go out to play football but, as there is always fighting and you do not wish to get involved, you choose to stay in your room.
9 You told Dr Zimmerman that you have great difficulty sleeping for days on end and are very worried about your situation and describe the behaviour of officers at the Detention Centre as rude and making actions as though they want to hit people. Your situation has deteriorated to the point where you do not wish to leave your room to have meals, you feel too upset to eat and have lost 5 kilograms in weight. You described to Dr Zimmerman feeling constantly distressed, low in energy and lonely, having difficulty with sleeping and nightmares about fighting which takes place in the Detention Centre as well as violence which had occurred back in Burma. You experience burning in your stomach and throat which, is treated with antacids, and have developed some skin lesions, for which you were given a cream, but which has no apparent effect. You have an injured hand through having punched the wall in frustration a couple of weeks ago and some problem with your shoulder for which you have not received medical treatment. You reported that you feel depressed, but had seen a psychologist only once in the seven months that you had been in the Detention Centre.
10 As far as the offending itself was concerned, you told Dr Zimmerman that you could not remember much detail about what had occurred, but the police had told you what had been alleged against you. She stated that you appeared embarrassed and said that you had made a terrible mistake and were not used to alcohol and did not realise how it would make you behave. You told her that your only sexual experience had been a “kissing relationship” with a girl in Burma when you were fifteen, but that you had not had sexual intercourse, and most marriages in your village were arranged.
11 Dr Zimmerman expressed the view that it was difficult to say whether you were experiencing symptoms of depression at the time of the offending. Certainly, you were isolated in the community and fearful about your own future and worried about your mother’s situation. She considered that the disinhibiting effects of alcohol may have played a role in offending and your ability to control your emotions and make appropriate judgments. However, she stated, at the present time, you present as a person with anxious and flat mood, who uses no humour at any stage, feels frightened all the time, and experiences mistrust and feelings of being out of control, as well as loneliness and isolation. Her opinion is that you currently suffer from Major Depression. She said this is related to the toxic environment in which you live and the uncertainty that surrounds your future. She considered that, if you were to continue to live in this environment and be isolated away from your own ethnic group and have uncertainty about your future, then these factors will play a role in perpetuating your mental illness. She expressed her concern over you having withdrawn from activities such learning English and playing sport and losing weight, having low energy, and low motivation to even leave your room to eat, and problems sleeping. She described you as having disengaged from life, in the context of being in the environment of the Remand Centre and the Detention Centre, where you have felt frightened for your physical safety and unable to control or understand the processes around you.
12 Dr Zimmerman considered that a period of incarceration would impact more significantly on you than someone who did not suffer Major Depression and your frustration and mistrust and fearfulness are likely to be aggravated by any further term of incarceration. She expressed concern that you are withdrawing from participation in life in the context of not having access to mental health assistance which you require. She opined that it was crucial to move you from detention as a matter of urgency if further deterioration in your mental state is to be avoided. She stated that you require review by a psychiatrist and regular support from a mental health professional in order to work towards re-establishing a sense of purpose and hope in you.
13 Mr Alam, the offence which you have committed by indecently assaulting your victim is a serious example of this offence. She was a woman alone at night, walking home from the station. She made it clear that she did not wish to engage with you. Fortunately, your victim was a courageous young woman who managed to fight you off. In her statement to police, she said “I am quite a calm person, I am not stressed out by this assault, instead I was thinking of how to get away from the man during the struggle. I don’t want this to happen to anyone else.” She has not made a victim impact statement, but it is clear that women must be able to feel safe in walking the streets as they go about their everyday activities. In sentencing for these offences, the Court must denounce your conduct and generally place emphasis upon general deterrence and just punishment. However, there are a number of unusual features about your offending which, although serious, make it quite unsophisticated. It is clear from the statement of your victim, made to the police on 1 July 2014, that you were repeatedly asking her “Please, please, be my friend” in an importuning and socially inappropriate way. She also confirms that you smelled of alcohol, consistent with your instructions to your counsel that you had been drinking alcohol prior to your offending and this was not something that you were used to.
14 It seems to me that your offending is not that of someone who is innately a sexual predator, but rather someone of very limited education generally, naïve about the way to go about relating to females, particularly in this country where you have had little experience of its culture and have limitations in your ability to express yourself in English. Moreover, I am satisfied that you are a person who, apart from having experience of kissing a girl at age fifteen, has no sexual experience or education in sexual matters whatsoever. You were only nineteen years old and very socially and culturally isolated in a new country. It appears that you have not had a male role model in your life in Burma, where your life was marred by violence, poverty and instability. Against this background, you have apparently been introduced to alcohol. I accept this as an explanation, albeit not an excuse for your offending. I find it most likely that the disinhibiting effects of alcohol played a role in affecting your ability to control your emotions and make appropriate judgments at the time of offending.
15 Since this offending occurred, I am satisfied that you have suffered considerable punishment and become quite overwhelmed by the situation in which you find yourself. You have spent eight months in an adult prison as someone who had never been in any trouble with the law before. This has been followed by some six and a half months in immigration detention. You have had no visitors and have developed a psychiatric condition of Major Depression in circumstances where you have been frightened and your English skills are so poor that you cannot understand what is going on around you or communicate with others. I accept the submission of your counsel that, by reason of your Major Depression, principles 2, 3, 4, 5 and 6 of R v Verdins[1] should apply in your case. It is of concern that your physical and mental health is deteriorating and you are only twenty years old. I am mindful of the fact that, in sentencing a young offender like you, rehabilitation should be the predominant sentencing principle, particularly in circumstances where you have no prior criminal history and a background of significant deprivation and cultural and educational disadvantage.
[1](2007) 16 VR 269
16 Although your pleas of guilty are relatively late ones, I take into account that there has probably been some degree of difficulty in communicating the nature and complexity of your legal situation to you, particularly as there are only three Rohingyan interpreters in Victoria. I accept that your pleas are remorseful ones, particularly given that you apparently have little recollection of the events of the assault due to your intoxication. For this reason, alone, you should receive a significant discount on the sentence which otherwise would have been imposed. Overall, although I am satisfied that it is a relatively serious indecent assault, I consider that your offending is more the product of emotional immaturity and a lack of sexual experience and education combined with cultural displacement, rather than innate criminality.
17 For the foregoing reasons, I consider that the relevant sentencing objectives which I have mentioned can be met by a combination of a term of imprisonment and a Community Correction Order. I consider that the amount of time, 251 days, served in adult custody has been onerous punishment in your particular circumstances and that that is a sufficient punitive element of the sentence. However, it is necessary to ensure that you can be safely guided back into the community and, for this reason, I intend to impose a Community Correction Order of two years. I consider it is crucial that you be supervised, that you have assessment and treatment for your mental health needs and that you undergo programs to address the risk of reoffending. If considered appropriate by the Office of Corrections, this may involve some sex offender program, however, given your sexual inexperience and limited English, I would be loath to mandate a group program and consider that this is best left to the discretion of the Office of Corrections. I would be particularly concerned about you being placed in a group sex offender program if there were experienced offenders in sexual crimes of a more serious nature than the one which you have committed.
18 Obviously, you are currently held in an Immigration Detention Centre. I have been told by your counsel that you have received a letter dated 7 November 2015 from the Department of Immigration inviting you to apply for a protection visa for asylum in this country. Your application, which is being handled by the Refugee and Immigration Legal Centre has not yet been lodged. I have no material which enables me to determine the likely success or otherwise of that application. Clearly, your future, in that regard, is uncertain and a cause of anxiety for you. I sought a report from the office of Corrections as to your suitability for a Community Correction Order. The Assessing Officer, Mr Cheng, provided a report today. He stated that, given your current detention, it was uncertain as to whether the conditions of a Community Correction Order could be implemented. Hence, he concluded, on that basis, that you were unsuitable for such an order. I do not consider that as a reason not to make the order which I have determined to be a just and appropriate disposition in all the circumstances of your case. The Court can only hope that the Executive Branch of Government might take into consideration these sentencing remarks in order to enable you to fulfil your obligations under the order.
19 You are a young offender with a previously unblemished record, and you have a good work history from a young age back in Burma. Whilst living in the community here in Australia, you engaged as well as you could with AMES between 13 June 2013 and 23 July 2013 in Queensland and from 11 November 2013 to 5 September 2014 here in Victoria. (Exhibit “3”) Whilst on remand, you tried to continue studying English and worked in the metal workshop before you were transferred to the Maribyrnong Detention Centre.
20 For someone who has had only two years of formal education in Burma, I consider you have tried to do your best in very difficult, isolating circumstances in a foreign country. I consider it likely that, with appropriate support and guidance, your prospects of rehabilitation should be good. For these reasons, I consider that the Court should order a Community Correction Order, particularly bearing in mind the emphasis that should be placed on rehabilitation for a young offender.
21 On one charge of indecent assault, you are convicted and sentenced to serve a period of imprisonment of 251 days together with a Community Correction Order for a term of two years.
22 The terms of the order are as follows:
(a)you must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b)you must comply with any obligation or requirement described by the regulations;
(c)you must report to and receive visits from the Secretary during the period of the order;
(d)you must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e)you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)you must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
23 In addition to those terms, the following conditions apply:
(1) that you be supervised, monitored and managed as directed by the Secretary for the term of the order;
(2) that you undergo assessment and treatment for alcohol abuse, mental health issues and any other programs to reduce the risk of reoffending as determined by the Secretary.
24 I am unable to make a Community Correction Order unless you consent to it. Do you understand the terms and conditions that I have just read out, Mr Alam?
PRISONER:
25 Yes, I do.
HER HONOUR:
26 Do you agree to enter into an order for a period of two years and to comply with those terms and conditions?
PRISONER:
27 Yes, I do.
HER HONOUR:
28 On Charge 2, theft, you are convicted and sentenced to be imprisoned for a period of one month concurrent with the term of imprisonment imposed on Charge 1.
29 Pursuant to s18 of the Sentencing Act, I declare a period of 251 days pre-sentence detention to be time reckoned as already served under the sentence imposed this day.
30 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed this day would have been 18 months' imprisonment with a non-parole period of 9 months.
31 Mr Alam, if you do not comply with the Community Correction Order you may be brought back to the court on a charge of breaching that order and sentenced to a further term of imprisonment on it, and the original offence. It is my intention that you should be at liberty in the community to undertake this Community Correction Order as from now, but I have no power to order the Department of Immigration to release you from detention.
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