Director of Public Prosecutions v Ali (No 3)

[2023] ACTSC 345

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Ali (No 3)

Citation: 

[2023] ACTSC 345

Hearing Date: 

14 November 2023

Decision Date: 

22 November 2023

Before:

Baker J

Decision: 

See [49].

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – act of indecency upon a person under the age of 10 years – offender employed as educator at a childcare centre – single act of indecency on 4 year old child attending centre – significant breach of trust – strong need for general deterrence, punishment, and denunciation – section 10 threshold crossed – sentence of full-time imprisonment imposed.

Legislation Cited: 

Crimes Act 1900 (ACT), s 61

Crimes (Sentencing) Act 2005 (ACT), ss 33, 34A

Cases Cited: 

Cooke (A Pseudonym) v the Queen [2021] ACTCA 44

Corby v R [2010] NSWCCA 146

DPP v Moala (No 3) [2023] ACTSC 306

R v Anderson (No 2) [2020] ACTSC 98

R v Barrantes [2019] ACTSC 381

R v EC [2019] ACTSC 211

R v EN [2019] ACTSC 354

R v Hammer [2019] ACTSC 182

R v KNL [2005] NSWCCA 260; 154 A Crim R 268

R v Stoupe [2015] NSWCCA 175

R v Verdins [2007] VSCA 102; 16 VR 240

R v Weir [2015] ACTSC 394

R v WR (No 4) [2015] ACTSC 211

Shannon v R [2006] NSWCCA 39

Parties: 

Director of Public Prosecutions ( Crown)

Muhammad Ali ( Offender)

Representation: 

Counsel

T Hickey ( Crown)

J Sabharwal ( Offender)

Solicitors

ACT Director of Public Prosecutions

Tim Sharman Solicitors ( Offender)

File Number:

SCC 246 of 2022

SCC 245 of 2022

BAKER J:

Introduction

1․The offender, Muhammad Ali, was charged with the following offences:

(a)Count 1 (CC2022/5241) – committing an act of indecency upon a person under the age of 10 years, contrary to s 61(1) of the Crimes Act 1900 (ACT);

(b)Count 2 (CC2022/5242) – committing an act of indecency upon a person under the age of 10 years, contrary to s 61(1) of the Crimes Act.

(c)Count 3 (SCCAN/87) – committing an act of indecency upon a person under the age of 10 years, contrary to s 61(1) of the Crimes Act.

2․The offender pleaded not guilty to each charge and was tried before a jury of twelve from 13 June 2023 to 22 June 2023.

3․On 22 June 2023, the offender was found guilty of count 1.  The jury were unable to come to a unanimous verdict in respect of count 2 and returned a verdict of not guilty in respect of count 3.

4․Accordingly, the offender comes before me for sentence only in relation to count 1. The maximum penalty for the offence of an act of indecency upon a person under the age of 10 years is imprisonment for 12 years.

Background

The offence

5․I find the following facts proved beyond reasonable doubt.

6․At the time of the offending, the offender was casually employed as an assistant educator at a daycare provider within the Canberra area.

7․On 21 April 2022 at approximately 4:00pm, the offender was supervising a number of children in an outside play area, including the complainant, KC, who was then 4 years old. At some point, KC came close to the offender. The offender pinched KC’s penis “in the middle” through his pants. KC asked, “why are you pinching me on the doodle?” and then bit the offender on his arm. This incident occurred in a ‘blind spot’ in the playground, which was not captured by CCTV. This was the conduct giving rise to Count 1.

8․KC then moved away to a pole, where he sat with his knees to his chest, crying. Another educator saw KC crying and asked KC what had happened. KC did not tell the educator what happened, but asked for his mother. The educator then asked the offender what had happened to make KC upset. The offender told the educator that KC had bitten him, and that KC had become upset when the offender threatened to tell KC’s mother. The other educator then went to KC and asked him to give the offender a cuddle.

9․KC’s mother collected KC from the daycare centre at about 4:20pm. When they were in the car, KC’s mother asked KC how his day was. KC told his mother that the offender “pinched [him] on the doodle”. KC’s mother got her phone out and taped the conversation. On that video, which was played in evidence before the jury, KC repeated that the offender “pinched [him] on the doodle, that’s what he done”.

10․The offender’s mother took KC to make a report to police. In his interview with police, KC again disclosed that the offender had pinched him on the doodle.

11․In an interview subsequently conducted with management of the daycare centre, the offender denied any wrongdoing and told them that KC had spat at him and bit him, and that KC was pushing his bottom into the offender’s hand. The offender told management that KC’s behaviour was “disgusting and inappropriate” and that he told KC that he would tell his mother.

Subjective circumstances

Family history

12․In a Pre-Sentence Report (PSR) dated 6 November 2023, the PSR authors recorded that the offender’s family background was “unremarkable”. The offender has several siblings, one of whom he resides with in the ACT. He has two sisters and a brother who reside in the United Kingdom. His parents and another brother reside in Pakistan. The offender reported that he had not seen his family in the last ten years, largely due to visa related reasons; however, he reported maintaining “almost daily” contact with his family. The offender underwent a divorce in 2019. He reported having few social supports in Australia, though he noted having occasional contact with two associates.

Education and employment

13․The offender completed his Year 12 equivalent qualifications in Pakistan. The offender moved to Australia to pursue a Certificate IV in Project Management, following which he acquired a Diploma of Early Childhood Education.

14․The offender initially commenced work as a security guard, before moving to the childcare industry in a casual capacity between 2014 and 2016.

15․The offender disclosed two instances of unemployment, both owing to drug use. After the second period of unemployment, he secured employment at the childcare centre where the offence occurred. The offender told the PSR authors that since June 2023 he has been working as a sub-contractor through a Sydney-based firm, as a delivery driver for a furniture company.

16․The offender is currently on a bridging visa. There is no evidence before me as to whether the offender is likely to be deported as a consequence of his conviction for this offence. The offender’s counsel did not submit that any such risk should mitigate the sentence to be imposed, and I have not taken the offender’s visa status into account as a mitigating factor: see DPP v Moala (No 3) [2023] ACTSC 306 at [56].

Mental health

17․The offender told the PSR authors that he has been diagnosed with schizoaffective disorder and “bipolar depression”. The offender’s psychiatrist provided a letter which confirmed his diagnosis of schizophrenia and differential diagnoses of schizoaffective disorder or bipolar affective disorder. The offender also told PSR authors that he had previously undergone depot injections of anti-psychotic medication to regulate mental health related concerns, which was confirmed by a letter provided by the offender’s psychiatrist and by the offender’s brother.

Drug and alcohol use

18․The offender reported to the PSR authors that he has only consumed alcohol on about 10 occasions over the past twelve months. However, he also disclosed that he commenced smoking cannabis in 2016 on a daily basis, and that he currently engages in cannabis use almost every second day. The offender said that he abstained from cannabis use in 2018 and 2019, following episodes of drug induced psychoses.

19․The offender also disclosed to the PSR authors that he commenced using cocaine and oxycodone in 2016 (at the same time that his cannabis consumption commenced) to “cope with mental health and personal life circumstances relating to visa and his sexuality”. The offender told the PSR authors that he engaged in cocaine use at the commencement of the trial.

20․The offender’s brother was seemingly unaware of this drug use, as he told the PSR authors that the offender did not use any drugs. The offender returned a negative urinalysis test on 3 October 2023 for any alcohol or illicit substances.

Criminal history

21․The offender has a relatively minor criminal history, consisting of an offence of drink driving offence in 2013 and a drug driving offence in 2023. The PSR refers to a breach of bail undertaking having been submitted to the Court in April 2023, when the offender is said to have failed to accept the supervision of ACT Corrective Services. I do not have any further information concerning this breach.

Sentencing Considerations

Nature and circumstances of the offence (s 33(1)(a) of the Crimes (Sentencing) Act)

22․The offence in question covers an age range of 0 to 10 years. The victim was at the younger end of this range, which renders the offending more serious: R v KNL [2005] NSWCCA 260; 154 A Crim R 268 at [42] and Shannon v R [2006] NSWCCA 39 at [28].

23․The offending consisted of the offender pinching the victim on his penis, on the outside of his clothing. The offending was brief in duration. It follows from the jury’s verdict of guilt that they were satisfied beyond reasonable doubt that the touching was intentional and not accidental. The sentence to be imposed must accord with this verdict.

24․The offender was a trained and experienced educator at a childcare centre. In view of this training and experience, I do not accept that the offender would have pinched KC on the penis as an act of horseplay or general ‘fooling around’. I am satisfied beyond reasonable doubt that the offending was sexually motivated.

25․The prosecutor submitted that there was a “suggestion” that the offending was “grooming” conduct, “being a strategy or technique applied to a child in order to reduce their capacity to resist and reduce the likelihood that they will complain”. In other words, I understood the prosecutor to submit that the offending should not be considered as an isolated incident, but rather as a potential precursor to intended future offences.

26․The offender is only to be sentenced for the offence for which he was found guilty by the jury. There was evidence before the jury of other offending conduct of a similar nature that had been committed in respect of other children. However, the jury was not satisfied beyond reasonable doubt of these other offences (the jury found the offender not guilty with respect to a charge relating to one child, and was unable to agree with respect to the charge relating to the other). Acting consistently with these verdicts, I will proceed on the basis that the offending was isolated in nature. I am not satisfied beyond reasonable doubt that the offending was committed with an intent to engage in future offences of a sexual nature.

27․It is necessary for me to make a finding of the objective seriousness of the offending. Having regard to the scope of conduct covered by this offence, the prosecutor submitted that the objective seriousness of the offending should be assessed as below mid-range. The offender’s counsel did not submit otherwise. As McCallum CJ recently observed in Moala (No 3) at [22], it is not necessary to express a finding of objective seriousness “as a point on a hypothetical range”. Nonetheless, for abundant caution, I consider it appropriate to record that, whilst I agree with the prosecutor that the offending was below mid-range for offences of this type, as the victim was four years old, and the offending occurred in a childcare setting, the objective seriousness of the offending was not significantly below mid-range.

Mental health

28․As noted at [17] above, the offender reported having been diagnosed with schizophrenia and differential diagnoses of schizoaffective disorder and bipolar affective disorder. Other than a brief letter from a psychiatrist with the Belconnen Community Health Centre which confirms these diagnoses, there is no evidence before the Court as to the effect of these conditions on the offender. The offender’s counsel did not contend that the considerations outlined in R v Verdins [2007] VSCA 102; 16 VR 269 at [32] arise.

29․I am not satisfied on the evidence available to me that there has been any reduction of the offender’s moral culpability, that any given sentence would weigh more heavily on the offender than a person in normal health, or that imprisonment would have a significant adverse effect on the offender’s mental health in comparison to a person in normal health.

Knowledge of victim’s circumstances (s 33(1)(d) of the Crimes (Sentencing) Act)

30․Given his position, the offender would have been aware the victim was 4 years old and of the victim’s acute vulnerability.

Responsibility and Remorse (s 33(1)(i) and 33(1)(w) of the Crimes (Sentencing) Act)

31․The offender has not demonstrated any remorse for the offending and has not accepted responsibility for the offending.

Breach of trust (s 33(1)(u) of the Crimes (Sentencing) Act)

32․The offender was the victim’s carer at a childcare centre and the offending occurred while the victim was under the supervision of the offender. As discussed further at paragraph [40] below, the offending represents a gross breach of trust.

Good character (s 34A of the Crimes (Sentencing) Act)

33․The offender only has a minor criminal history. He also provided two references, from his brother and a friend, each of which spoke of the offender’s prior good character.

34․However, the offender’s prior good character assisted him to hold the position of childcare worker, which in turn enabled him to commit the offence against the victim: see similarly Stoupe v R [2015] NSWCCA 175 at [86]. Accordingly, I do not take into account the offender’s good character as mitigating the sentence to be imposed: s 34A of the Crimes (Sentencing) Act.

Risk of re-offending

35․ACT Corrective Services assessed the offender to be at a low risk of general re-offending. However, on 13 October 2023, the offender's risk of sexual re-offending was assessed by the ACT Corrective Services Program Unit using the Static-99R assessment tool. That assessment indicated that the offender was at an “above average” risk of sexual re-offending, despite his low risk of general re-offending.

Current Sentencing Practice (s 33(za) of the Crimes (Sentencing) Act)

36․At the sentencing hearing, the prosecution provided a table of comparative cases relating to sentences imposed for sexual offending against children. Following the hearing, the prosecution provided a supplementary table containing two additional comparative cases. Those tables included the decisions in Cooke (APseudonym) v the Queen [2022] ACTCA 44; 18 ACTLR 204; R v Anderson (No 2) [2020] ACTSC 98; R v Stoupe [2015] NSWCCA 175; R v Weir [2015] ACTSC 394; R v WR (No 4) [2015] ACTSC 211; R v Barrantes [2019] ACTSC 381; and R v EC [2019] ACTSC 211.

37․I have had regard to the decisions of this Court contained in those tables, as required by s 33(1)(za) of the Crimes (Sentencing) Act. However, I have also borne in mind that caution needs to be exercised regarding the use of previous sentences. In particular, as the prosecutor acknowledged, the nature of the offending in the present case is less serious than the offending in each of the cases cited. Other than the decision in Stoupe (a decision of the New South Wales Court of Criminal Appeal, concerning an offence which carries a different maximum penalty and a standard non-parole period), none of the decisions in the table concerned offences committed in childcare settings. Further, many of the decisions involved offenders who were being sentenced for multiple offences, or concerned offending that attracted different maximum penalties to the present offence. Accordingly, whilst I have been assisted by the statements of principle contained in those decisions, the particular sentences imposed do not provide a guide to the appropriate sentence to be imposed in the present case.

Determination

38․The maximum penalty for an offence of indecent assault of a child under the age of 10 years is imprisonment for 12 years, reflecting the seriousness with which the community regards offending of this nature.

39․As the offender’s counsel submitted, and the prosecutor acknowledged, there are aspects of the present offending that are not as serious as many offences which come before this Court. The offender is to be sentenced for a single incident of committing an act of indecency upon a person under the age of 10 years, in which the offender touched the child on his penis on the outside of his clothing for a short period of time.

40․However, against these matters, is the very young age of the victim (4 years), and his acute vulnerability. For young children such as KC, childcare centres are of critical importance. Childcare centres provide a supportive and caring environment for children to develop cognitively, socially and emotionally. Young children depend upon their carers to meet these needs, and not to abuse their vulnerability. Childcare centres also enable parents to engage in paid employment, and for many families, including single parent families, the availability of childcare is necessary for the child to grow up in an environment of economic stability. Accordingly, it is vital that parents and other caregivers can have trust in childcare institutions: see similarly Stoupe at [93].

41․As the prosecutor submitted, referring to the evidence of Ms Prattley, psychologist, who gave evidence in the offender’s trial, children of KC’s age often lack the verbal and emotional skills that are necessary to make a complaint of sexual offending. As Ms Prattely described, it is also difficult for such children to speak out, because of their relative powerlessness to their adult carers. As a result, this form of offending can be very difficult to detect. Although this was not the case with KC, who was a particularly articulate young child, the general difficulty in detecting offences of this nature is a matter that is relevant to the weight that should be given to the need for general deterrence.

42․Sexual offending against young children causes deep harm. In an eloquent victim impact statement, the victim’s mother described the effects of the present offending on her son. She described her son’s anxiety, both following the incident and also in the week before the pre-trial hearing. She said that in the week before the pre-trial hearing, KC had said to her, “mum I can’t breathe, I haven’t been able to breathe all week”. When she asked KC if he wanted to say anything to the Court about the offending, KC said that the offending made him “feel scared and sad” and “hurted” him.

43․The effects of sexual offending upon children is not limited to the particular child victim, but ricochets across the families of those victims and through the broader community. The victim’s mother reports that she now battles with anxiety which is so severe that she is woken by panic attacks at night. She finds it difficult to trust men in authority, including teachers and after-school carers. When speaking to other parents, she finds herself searching for child abuse indicators that they may not have noticed.

44․In view of these matters – the harm caused to the victim, his family and the broader community; the victim’s vulnerability; the difficulty of detecting such offences; and the gross breach of trust that was involved in the offending – it is clear that the sentence to be imposed must adequately reflect the need for just and appropriate punishment, general deterrence, accountability, denunciation and recognition of the harm caused to both the victim and the general community: s 7 of the Crimes (Sentencing) Act.

45․By contrast, there is little that operates in the offender’s favour by way of mitigation. The offender has denied his guilt. He has expressed no remorse for his offending. I am not satisfied that he has positive rehabilitation prospects. In the absence of positive prospects of rehabilitation, I consider that some weight should be placed on the need for specific deterrence and protection of the community. For the reasons I have already described, I am not satisfied that there is any connection between his mental illness and the offending which could justify a reduced finding of moral culpability or that the offenders’ condition should otherwise mitigate the sentence to be imposed.

46․Taking into account each of these considerations, I consider that no sentence other than full-time imprisonment is appropriate.

47․As the offender’s counsel conceded, the s 10 threshold is crossed, and no sentence other than imprisonment is appropriate. The offender has not been assessed as eligible for an Intensive Correction Order, but even if he was suitable, I would not consider such a sentence, or a suspended sentence, to be appropriate. In my view, the purposes of sentence require that a sentence of full-time imprisonment be imposed. The appropriate sentence is one of 18 months imprisonment, with a non-parole period of imprisonment for 12 months.

48․The offender has spent two days in custody referable to the present offending, from 29 May 2022 to 30 May 2022. Accordingly, the sentence will be backdated by two days to take into account the time already spent in custody. 

Orders

49․The orders of the Court are as follows:

(1)For the offence of committing an act of indecency upon a person under the age of 10 years (CC2022/5241), you are convicted. I sentence you to a term of imprisonment of 18 months, commencing on 20 November 2023 and expiring on 19 May 2025, with a non-parole period of 12 months.

(2)The offender will first be eligible for parole on 19 November 2024.

(3)The transfer charge of common assault (CC2022/5243) is dismissed as indicated by the prosecutor.

I certify that the preceding forty-nine [49] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Baker.

Associate:

Date: 22 November 2023