Director of Public Prosecutions v Ali
[2024] VCC 836
•6 June 2024
| Revised Suitable for Publication |
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
CR-24-00291
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD ALI MOHAMMAD ALI |
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JUDGE: | JUDGE DAWES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 May 2024 | |
DATE OF SENTENCE: | 6 June 2024 | |
CASE MAY BE CITED AS: | DPP v Ali | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 836 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Use carriage service to transmit child abuse material; importation of tier 2 goods, comprising child abuse material; exceptional circumstances
Legislation Cited: Criminal Code (Cth); Customs Act 1901 (Cth)
Sentence: 6 months’ imprisonment, released forthwith on a 12-month Recognizance Release Order
SORA 15 years
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| APPEARANCES: | Counsel | Solicitors | |
| For the DPP | Mr B. Cullen | Office of Public Prosecutions | |
| For the Accused | Mr R. Fida | TBJ Law | |
1Mohammad Ali Mohammad Ali, you have pleaded guilty to the following offences:
CHARGES
OFFENCE
MAXIMUM PENALTY
Charge 1
Use carriage service to transmit child abuse material
15 years’ imprisonment
Charge 2
Importation of tier 2 goods, comprising child abuse material
10 years’ imprisonment
2Charge 1 was committed on 16 October 2020, when you were 35 years of age. Charge 2 was committed on 12 May 2023, when you were 38 years of age. For the purpose of the sentence, I will call you Mr Ali.
3The circumstances of your offending have been provided in the Summary of Prosecution Opening. It is agreed to be an accurate account of events. A general summary of the facts is as follows:
4On 12 May 2023, you arrived at the Melbourne International Airport after visiting your family in Pakistan. You were processed and subsequently subjected to a baggage examination by Australian Border Force (ABF) officers.
5Upon request, you provided the officers with your mobile and its password for their review, as well as your incoming passenger card which stated that you were not in possession of any prohibited goods, including illegal pornography. You confirmed you understood and completed the card yourself.
6During their preliminary review of the mobile, ABF officers located a video of child abuse material that you had transmitted on WhatsApp.
7You agreed to participate in a record of interview. You admitted that you were the owner of the mobile and that only you had access to it. You stated:
· You had previously received child abuse material on WhatsApp from a friend who resided in Pakistan;
· he would generally send you videos of adult pornography, but sometimes he sent you files containing child abuse material as well;
· you would “watch” and “delete” any videos of child abuse material that you received, although you had not deleted the particular video which was located.
8ABF officers retained your phone for further examination. They eventually located two further chat logs in which you had transmitted and received child abuse material.
9When you re-entered Australia, you imported a total of four child abuse material videos, which are the subject of Charge 2. They were stored across three separate chat logs, including on the encrypted communications platform, WhatsApp, and within an SMS chat. Each file is classified as a “Category 1” file in accordance with the Australian Child Abuse Categorisation Scheme, which is annexed to the prosecution opening.
Charge 1
10Between 21 September 2020 and 12 May 2023, you communicated with a friend using WhatsApp and SMS. On 16 October 2020, you transmitted two identical videos containing child abuse material to your friend: one file on each platform. The duplicate video was of an adult male performing anal penetration on a female child, approximately five years of age. The video ran for 24 seconds.
11The files were sent separately, only eight seconds apart. Each video was accompanied by duplicates of nine further videos of adult pornography.
Charge 2
12The videos that you sent to your friend remained on your phone and comprise two of the four child abuse material files that are the subject of Charge 2.
13Between 14 October 2021 and 5 May 2023, you communicated with another user of WhatsApp. During this time, you were sent two videos of child abuse material which were not deleted from your phone.
14On 2 November 2021, you were sent a child abuse video of a female child, aged around 11 years, who was masturbating and then used an item to penetrate her anus. The video ran for two minutes and 28 seconds.
15On 18 March 2023, you were sent another child abuse video of an adult male performing penetration to the genital area of a female child, aged around 13 years. The video ran for one minute and 46 seconds and focused on the child’s face, which appeared to show that she was in distress and pain.
16I have not viewed the child abuse material, as there is no dispute that the detailed description provided in the prosecution opening is sufficient. The parties agree that while the volume of the material is an indicator of the seriousness of the offences, the primary focus is the type of material and degree of depravity. Quantity is the secondary focus. The video material explicitly demonstrates a high degree of depravity and is horrific.
17On 11 November 2023, you were charged with offending on summons. You have not served any time in custody. Your matter proceeded in the Magistrates’ Court on 1 December 2023 at a Filing Hearing and your bail was fixed. Your matter resolved to a plea of guilty at the first committal mention on 23 February 2024. It is agreed that your plea has been entered at the earliest opportunity and was heard on 28 May 2024, the first County Court listing. Your plea is consistent with your co-operation and admissions in your Record of Interview.
18You are entitled to receive a substantial benefit for your early guilty plea. It has a highly significant utilitarian benefit. You have saved the Court and the community the time and expense of running a trial. You have facilitated the efficient administration of justice and are entitled to a benefit for that.
19Your plea of guilty demonstrates an acceptance of responsibility for your offending. Your counsel submits that it is also consistent with remorse. The prosecution does not dispute this and I accept this submission.
20I turn now to your personal circumstances.
21You were born in January 1985 in Afghanistan and are now 39 years of age. You are one in a sibship of five. You did not attend school in Afghanistan but gained a limited education in Pakistan, after you moved there with your family at the age of 10. Your mother continues to reside in Pakistan with your younger brother. You have two sisters who reside in Iran. Your father is now deceased.
22Your family belongs to a minority Islamic sect and have all undergone traumatic experiences, discrimination, and fear over an extended period from the Taliban, in both Afghanistan and Pakistan. The direct persecution from the Taliban materialised when your brother was murdered by them in 2003.
23There is no dispute from the prosecution that you have faced significantly difficult experiences throughout your life.
24In 2010, you fled from Pakistan. You travelled to Australia by boat via Indonesia and became a refugee. You spent 18 months in immigration detention on Christmas Island, in Tasmania and then in Western Australia. On 2 July 2010 you came to Melbourne on an Alien Visa. In 2011 you were granted permanent residency, and on 19 November 2022 you gained your Australian Citizenship.
25You have maintained a loving, stable relationship for more than five years and on 18 January 2019, you married your wife who resides in Pakistan with your mother and brother. You have applied for a Spousal Visa and await the granting of the application. There are no children to your relationship.
26Prior to your immigration, you worked with your father at a tea shop in Pakistan. You have a strong work history in Australia and currently undertake three separate forms of employment, working more than 60 hours per week. You have two part-time jobs as an Uber driver and as a Security Guard, both of which commenced in around 2015. In 2020, you commenced full-time work at a construction business, performing a variety of tasks including rendering, renovating and tiling. You have previously obtained Certificates in Private Security and Warehousing and earn between $50,000 to $60,000 per annum. You regularly provide financial support to your family overseas.
27The character references received from two of your employers’ outline that you are a hardworking, reliable, trustworthy and respected member of staff. They confirm that they are aware of your current circumstances and court proceedings. I am told that your capacity to remain employed at the South East Construction Group will continue. Given the nature of your offending conduct however, it is anticipated that you will be unable to retain your employment as a security guard or with Uber.
28At the outset of your plea, your counsel confirmed that you have shown genuine remorse, regret and shame for your misconduct. You have prepared a letter of apology to the Court, dated 9 May 2024, where you concede the seriousness of your offending and apologize. You describe the past seven months as being very stressful, but you accept that you only have yourself to blame and take full responsibility for your actions. You have disclosed your offending to your wife and family. You were also supported by a friend in court, on the day of your plea. You maintain their support and acknowledge that you are most fortunate in that regard.
29Despite your past trauma and the hardship that you have undergone, you have not sought help before. More recently, you sought assistance through your general practitioner who referred you to psychologist, Mr Tony Vickers-Willis. He has written a letter to the court, dated 2 May 2024.
30Your first session with Mr Vickers-Willis was on 28 December 2023 and I am told you have now attended seven sessions, which you plan to continue to manage your circumstances. You told Mr Vickers-Willis that you came to Australia in desperation but with optimism for starting a new safe and secure life, which you want to build for yourself and your family.
31Mr Vickers-Willis has assessed you as suffering from anxiety, depression and an adjustment disorder. You have received counselling from him which initially focussed on psychoeducation around coping with anxiety through lifestyle change and improved emotion regulation. He has outlined the challenges you have faced throughout your life and notes that the stress related to both the legal charges and the triggers from the trauma in your past have created difficulties for you.
32He writes that you now understand the seriousness of your offending and have expressed deep feelings of guilt, shame, embarrassment, regret and remorse for your actions. You have acknowledged that watching and sharing videos of child sex is a problem as it encourages the abuse of children. You understand that this material is not only illegal but also immoral and indecent.
33The letter from Mr Vickers-Willis indicates that your participation in treatment has assisted with solidifying your understanding of your misconduct. This is even though the treatment itself is not specifically directed towards countering child sex offending or reoffending. While the prosecution does not have an issue with the letter from Mr Vickers-Willis, it is suggested that it may be of limited assistance in determining factors on sentence, as it is not the treatment that would normally be imposed to deal with these matters, namely a Sex Offender Treatment Program. Both parties agree that it would be appropriate for you to participate in such a program in order to address the objectives of your rehabilitation. Should a Recognizance Release Order be imposed, that is a matter that would be dealt with by Corrective Services and form part of the order.
34You are of previous good character and have no prior or subsequent criminal history, although it is conceded that limited weight is put on good character for offending of this type.
35When considering your prospects, I note that your circumstances have not been disputed by the prosecution. I consider that the acceptance of your misconduct and the fact that you are now engaging with counselling, in the context of your lack of criminal history and early plea of guilty, mean that your likelihood of reoffending is minimal. I consider that your prospects are positive.
36The possession of child abuse material is not a victimless crime and creates a market supplied by and reliant upon the continued sexual exploitation of children. General deterrence must therefore be given significant weight. The paramount objective is the protection of children.
37General deterrence is conceded to be the primary sentencing consideration for offences involving child abuse material given the prevalence of the offending, the ease of access to such material on the internet, and the difficulties of detection. I consider that specific deterrence is not as relevant here, due to your lack of any prior or subsequent offending. Denunciation, punishment and protection of the community are also important sentencing considerations.
38Rehabilitation prospects are less prominent in the sentencing mix. Further, an offender’s personal mitigatory factors such as age and lack of prior convictions should generally be given less weight.
39When considering the appropriate penalty, the prosecution has submitted that a term of imprisonment on each charge is the appropriate disposition. The overall sentence should be such that a Recognizance Release Order is required to be fixed. It is accepted that the circumstances of this case are not common in matters of this kind. The Crown submits that exceptional circumstances are made out, which allows your immediate release from custody, despite the inherent seriousness of the offending.
40The Prosecution position is that exceptional circumstances are made out having regard to the following:
· your early plea of guilty, cooperation and lack of prior convictions;
· the low number of child abuse material items involved, and the fact that one of those is a duplication;
· the remorse and acceptance of responsibility that you have demonstrated;
· the difficult experiences you have faced in the past, as well as your current personal circumstances;
· you have previously been a refugee.
· you now work for considerable hours and provide financial support to your family overseas.
41Your counsel has submitted that a Community Correction Order may be appropriate. A Recognizance Release Order with immediate release is also accepted to be an alternative realistic sentencing option. It is noted that it would include conditions that run like a therapeutic order. Your counsel agrees with the prosecution submission that exceptional circumstances have been established.
42When considering the seriousness of your offending, there is no dispute that the quality of the child abuse material was horrific and depraved. You were in possession of some of the material for at least two and a half years, although one of the videos was received a short time before your arrest. Each offence was committed on a single date. The total amount of illegal material in your possession is a very low quantity. Further, the two videos that were sent, being Charge 1, are duplicate videos and they also form half of the content of Charge 2. In all the circumstances, I accept that your offending is at the lower end of the spectrum of seriousness for these offences.
43After considering all of the material, I am satisfied that the need for general deterrence and the objective gravity of the content of the offending requires a term of imprisonment to be imposed. I make this order noting that this disposition would ordinarily be warranted for offending of this kind.
44I have the capacity to impose a disposition that would allow for supervision and treatment on a Recognizance Release Order. I have carefully considered the maximum penalty and current sentencing practices. Balancing all the factors that have been relied on, including the low end of the spectrum of seriousness of offending, your early plea of guilty, your remorse and insight into your offending, as well as participation in counselling and your personal circumstances, I agree with the prosecution that exceptional circumstances are made out. I am satisfied that in the unusual circumstances of this case, a sentence of imprisonment that is fully suspended on the condition that you enter into a conditional Recognizance Release Order is appropriate and satisfies all relevant sentencing requirements in your case.
45In relation to Charge 1, you are convicted and sentenced to five months’ imprisonment. In relation to Charge 2, you are convicted and sentenced to three months' imprisonment. I direct that one month from Charge 2 be cumulative upon Charge 1; that is a total effective sentence of six months’ imprisonment. That sentence is to begin today. I direct that you be released forthwith on a Recognizance Release Order for a period of 12 months. I will go through the conditions in a moment.
46The prosecution has submitted that Charges 1 and 2 are class 2 offences under the Sex Offenders Registration Act. As you are guilty of these charges, you are a registerable offender and subject to reporting obligations for a period of 15 years. There is no objection to the making of this order as it is conceded to be required under the legislation, and so I make that order under the Sex Offenders Registration Act for 15 years.
47The declaration I make under s6AAA is had the matter not proceeded as a plea of guilty I would have imposed a sentence of 12 months’ imprisonment, to be released on a Recognisance Release Order after serving six months.
48In relation to the Recognisance Release Order with immediate release, I will go through the order that I am about to make and if there is anything that you want to raise, please do.
49The Court orders the release of Mr Ali under paragraph 20(1)(b) of the Commonwealth Crimes Act (1914) forthwith upon the defendant giving security by recognisance of $750 to comply with the conditions that the defendant, Mr Ali
· be of good behaviour for a period of 12 months; and
· be subject to the supervision of a probation officer (being a Deputy Commissioner, Community Correctional Service and Sex Offender Management or his or her nominee. I will not repeat that every time I say probation officer) for a period of 12 months; and
· obey all reasonable directions of the probation officer; and
· not travel interstate or overseas without the written permission of the probation officer; and
· undertake such treatment or rehabilitation programs as the probation officer reasonably directs; and
· report to the Dandenong Community Corrections Centre, which is located at the Dandenong Justice Service Centre, 46 - 50 Walker Street, Dandenong, 3175, within two clear working days of the date of this order; and
· report to and receive visits from a Community Corrections officer or officers; and
· notify an officer at the specified Community Corrections Centre of any change of address or employment within two clear working days after the change; and
· attend for assessment and if assessed as suitable, treatment for sex offender programs or programs to reduce reoffending as directed by the Deputy Commissioner, Community Correctional Services and Sex Offender Management, or his or her nominee.
50I confirm that the total effective term of imprisonment that I have imposed is six months, and I have ordered that Mr Ali be released on a Recognisance Release Order with immediate release, and that the order will last for 12 months.
51I will ask my associate if she would print out the conditions of the therapeutic recognisance release order, and if you just come and take a seat down behind your counsel, Mr Ali, and go through it with him please?
52MR CULLEN: Apologies, Your Honour, is there is a particular section in the Crimes Act requiring the court to explain the consequences of potentially breaching the order?
53HER HONOUR: Yes.
54MR CULLEN: I don’t recall the section of it off the top of my head.
55HER HONOUR: If you would just excuse me while you’re going through the order, I've actually got the document downstairs on my desk. I'll run down and get it and I'll be back in a second.
56(Short adjournment.)
57MR CULLEN: I've gone through those orders with Mr Ali.
58HER HONOUR: Does he agree to comply with the order?
59MR CULLEN: Yes, Your Honour.
60HER HONOUR: Has he signed the order?
61MR CULLEN: No, I believe we need to do that whilst you are here.
62HER HONOUR: Thank you, I will just ask that Mr Ali sign the order then, thanks. He can just come forward and do it at the Bar table.
63MR CULLEN: Thank you. Sorry, Your Honour, do we need a secondary surety?
64HER HONOUR: No.
65MR CULLEN: I'm not certain if that related to the $750 or the bond.
66HER HONOUR: No, the $750 - - -
67MR CULLEN: It's just a withheld bond, yes.
68HER HONOUR: Yes, so I'll cut that condition off because we haven't imposed a surety to secure - - -
69MR CULLEN: Sorry, Your Honour, I didn't think so, it was like a bail variation.
70HER HONOUR: That’s all right, I'll just draw a line through that, thanks. Mr Ali, you can stay seated. Do you understand that the sentence that I have imposed is a total effective term of six months' imprisonment, and that you are not required to serve any time immediately. You are to be released today back into the community, and the period or the balance of that six months will be hanging over your head now for the next 12 months? Do you understand that?
71OFFENDER: Yes.
72HER HONOUR: You've promised to be of good behaviour for the next 12 months as part of this order and do you understand that if you commit any further offences during the next 12 months you will be in breach of this sentencing order? You’re not actually required to pay the $750 that I have called the security recognisance, you don't actually have to pay that now, but you may have to pay $750 if you fail to comply with the conditions of the order, which essentially means that if you reoffend during the next three years, or you fail to comply with the order, you might be at risk of paying $750. Do you understand that?
73OFFENDER: Yes.
74HER HONOUR: If you do commit any further offence during that period, or you fail to comply with this order, which is for 12 months, you will be brought back to the court for resentencing, and you are at real risk of being sent into custody if you breach the recognisance release order. Do you understand that?
75OFFENDER: Yes, Your Honour.
76HER HONOUR: I understand that you have agreed to comply with the conditions and you are prepared to do that for the next 12 months.
77OFFENDER: Yes.
78HER HONOUR: Thank you. Can I thank both members of counsel. Is there anything further sought? There's no orders for disposal of the material?
79MR FIDA: No, Your Honour, that's been consented to.
80MR CULLEN: Thank you, Your Honour.
81HER HONOUR: Thank you. We'll make copies of this order available for you, and I note that it's Thursday morning so he is actually required to - it would be preferable if he go to Corrections by tomorrow.
82
MR CULLEN: He said he can go this afternoon, so that's fine. I note Monday is a holiday as well, but he'll either go this afternoon or tomorrow morning,
Your Honour.
83HER HONOUR: I'll give you both copies of the order. Can I thank you very much and I'll leave the Bench.
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