Director of Public Prosecutions v Azimy
[2022] VCC 1790
•18 October 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED AZIMY |
---
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 – 28 February 2022 (Trial) | |
DATE OF SENTENCE: | 18 October 2022 | |
CASE MAY BE CITED AS: | DPP v Azimy | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1790 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW – Sentencing.
Catchwords: Found guilty at trial – Encouraging a child under 16 to engage in or be involved in sexual activity – Persistent contravention of family violence intervention order – Stalking – Grooming for sexual conduct with a child under 16 – Contravention of a family violence intervention order – Limited intellectual capacity - Youthful offender – Delay - Very good prospects of rehabilitation – Visa status as a non-citizen - Serious sexual offender – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 21A, 49K(1), 49M(1); Family Violence Protection Act 2008 ss 123(2), 125A(1); Sentencing Act1991 ss 6D(a), 6D(b), 6DE, 18, 44, 48C; Sex Offenders Registration Act 2004.
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Director of Public Prosecutions (Cth) v Singh [2017] VSCA 146; Director of Public Prosecutions v O’Neill (2015) 47 VR 395; Williams v The Queen [2018] VSCA 171.
Sentence: Imprisonment for a period of 10 months and Community Correction Order for a period of 2 years.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Barnett (Trial) Mr P Pickering (Plea) | Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | Aurum Nostrum Law Pty Ltd |
HIS HONOUR:
Introduction
1Mohammed Azimy, you have been found guilty by jury of the following charges:
·five charges of encouraging a child under 16 to engage in or be involved in sexual activity contrary to s 49K(1) of the Crimes Act 1958 (‘Crimes Act’), each which carries a maximum penalty of 10 years imprisonment (Charges 3, 4, 8, 9 and 10);
·one charge of persistent contravention of a family violence intervention order contrary to s 125A(1) of the Family Violence Protection Act 2008 (‘Family Violence Protection Act’), which carries a maximum penalty of 5 years imprisonment (Charge 5);
·one charge of stalking contrary to s 21A of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charge 6); and
·two charges of grooming for sexual conduct with a child under the age of 16 contrary to s 49M(1) of the Crimes Act, which carries a maximum penalty of 10 years imprisonment (Charges 7 and 11).
2You have also pleaded guilty to five charges of the related summary offence of contravention of a family violence intervention order, contrary to s 123(2) of the Family Violence Protection Act, each which carries a maximum penalty 2 years imprisonment (Summary Charges 11, 13, 24, 25 and 26).
3You have no prior criminal record.
Circumstances of the offending
4In sentencing you I am bound by the principles in the case of Cheung v The Queen.[1] As such, I must interpret the facts in a way that is consistent with the jury's verdict.
[1] (2001) 209 CLR 1.
5A document entitled 'Summary of Prosecution Opening for Sentence Following Trial' was tendered on the plea and may be summarised as follows:
6At the time of the offending you were 20 to 21 years old, residing with family in Cranbourne East. You were born in Afghanistan but have lived in Australia since 2016 on a permanent resident visa.
7There are two victims in this matter:
(a) Tasha Bishop,[2] born in June 2007. At the time of the offending, Ms Bishop resided with her family in Dandenong[3]. She was 11 to 12 years old during the offending.
(b) Lela Stanley,[4] born in September 2004. At the time of the offending,
Ms Stanley resided with her family in Dandenong, and also attended
the same school as Ms Bishop. She was 14 years old during the offending.Offending against Tasha Bishop
[2] A pseudonym.
[3] Location de-identified.
[4] A pseudonym.
8You commenced a relationship with Ms Bishop in late January 2019. Ms Bishop had previously been in an online relationship with your younger brother during 2018 whilst she was in Grade 5.
9Rumours about Ms Bishop’s sexual activity with an older male started to be spread at her school, which were notified to teaching staff. On 28 March 2019,
Principal Holly Burke[5] and Wellbeing Coordinator Jenny Harper[6] met withMs Bishop to ask her about the rumour.[5] A pseudonym.
[6] A pseudonym.
10During the meeting, Ms Bishop disclosed that:
(a) you were her boyfriend, and that you often 'asked her to do things' with you;
(b) the first time she met you had been the day before school returned. You had collected her in your car and you went to a nearby park. You had walked around holding hands and you had kissed. You had expressed a desire to have sex with her, but she said no via text message and also made it clear while you were kissing that she did not want to have sex. However, she had become scared that you would get aggressive, and told Ms Harper and Ms Burke that she did not shout or scream when you started to have sex with her; and
(c) she had had sex with you on multiple occasions, usually at the nearby park.
11Ms Burke and Ms Harper reported the information to Ms Bishop’s mother,
Ms Salazar,[7] who met with them later that afternoon. Ms Bishop attempted to retract the information, saying that she was in love with you and that you would break up with her if you knew she had told on you.[7] A pseudonym.
12Police were notified of Ms Bishop’s disclosures after her meeting with Ms Burke and Ms Harper, and an investigation commenced.
Intervention Order
13On 15 May 2019, police applied for a family violence intervention order with full conditions against you on Ms Bishop’s behalf. The order was granted on an interim basis, and included conditions prohibiting you from:
(a) attempting to locate or follow Ms Bishop;
(b) contacting or communicating with Ms Bishop by any means;
(c) approaching or remaining within 5 metres of Ms Bishop;
(d) going to or remaining within 200 metres of any residence where Ms Bishop lived or attended school; and
(e) getting another person to do anything you, the respondent, must not do under the order.
14The interim order was served on you later that same day, and the conditions were explained to you in full.
15The interim order became a final intervention order on 3 July 2019, and was served on you on 10 July 2019. The conditions were at that time also explained to you in full.
Breaches of Intervention Order
16On 18 October 2019, you sent Ms Bishop a number of messages on Snapchat, in breach of the intervention order. (Related summary offence 11: Contravene intervention order).
17In the messages, you asked Ms Bishop 'You want my dick', to which Ms Bishop replied no. You then wrote 'I’m joking ur so cute as fuck ur sexy girl' and 'You want meet up with me'. (Charge 3: Encouraging a child under 16 to be engaged or involved in sexual activity).
18On 2 December 2019, you sent Ms Bishop two messages on Instagram, in breach of the intervention order. (Related summary offence 26: Contravene intervention order).
19On 8 December 2019, you sent Ms Bishop four messages on Instagram and video called her twice, in breach of the intervention order. (Related summary offence 13: Contravene intervention order).
20In the messages, you say, 'I gonna suck ur pussy okay' and 'If you want doing sex tomorrow call if you don't want me can you please block me I don't want annoying you anymore okay'. (Charge 4: Encouraging a child under 16 to be engaged or involved in sexual activity).
21On 9 December 2019, you called Ms Bishop six times from a private number, in breach of the intervention order. Ms Bishop answered the first call and hung up straight away after she recognised your voice. (Charge 5: Persistent Contravention of Intervention Order).
22On 16 December 2019, Ms Bishop was at the local library and noticed you nearby. Ms Bishop walked around the library for at least five minutes trying to get away from you, but you followed her. Ms Bishop walked towards a nearby business so that she would feel safe, and told you to 'fuck off' several times. She also told you that she wanted you out of her life, to stop following her, stop contacting her friends and stop contacting her. You eventually got into your car and left. (Charge 5: Persistent Contravention of Intervention Order).
23On 31 December 2019 you created a new Instagram account named 'alijan1962' and contacted Ms Bishop’s cousin. During the conversation with Ms Bishop’s cousin you asked about Ms Bishop, and said, 'Hey why you tell [Tasha] I'm talking with you'. You then asked 'What time are you guys going' and said 'U know about her everything'. (Charge 5: Persistent Contravention of Intervention Order).
24On 1 January 2020 you sent Ms Bishop several messages and tried to call her five times using Snapchat, in breach of the intervention order. (Charge 5: Persistent Contravention of Intervention Order).
25On 2 January 2020 you sent Ms Bishop six messages using Snapchat, in breach of the intervention order. (Charge 5: Persistent Contravention of Intervention Order).
26On 3 January 2020 you sent Ms Bishop a photo message in Snapchat asking for her to meet up with you. At approximately 1.00 pm Ms Bishop attended at the Cranbourne Police Station with Ms Salazar to report your breaches of the intervention order. While she was providing a statement to Constable Lachlan Fraser, Ms Bishop received further messages on Snapchat from you. The messages were opened and screenshotted in the presence of Constable Fraser. (Charge 5: Persistent Contravention of Intervention Order).
27On 4 January 2020, you sent Ms Bishop two messages using Facebook Messenger, in breach of the intervention order. (Charge 5: Persistent Contravention of Intervention Order).
28On 5 January 2020, you sent Ms Bishop one message using Facebook Messenger, in breach of the intervention order. (Charge 5: Persistent Contravention of Intervention Order).
29In the 27 day period between 9 December 2019 and 5 January 2020, you breached the intervention order on eight separate days by contacting Ms Bishop and being within 5 metres of her. (Charge 5: Persistent Contravention of Intervention Order).
30Between 18 October 2019 and 5 January 2020, you stalked Ms Bishop by engaging in the following behaviour, with the intention of causing physical or mental harm to her:
(a) contacting her friends to ascertain her whereabouts;
(b) setting up multiple Instagram accounts to make contact with her;
(c) calling and messaging her multiple times on various social media platforms; and
(d) following her around the library.
(Charge 6: Stalking).
31Throughout the period of time that you were in communication with Ms Bishop from 28 January 2019 to 3 January 2020, you intended for your communications to facilitate Ms Bishop engaging or being involved in the commission of sexual conduct with you. (Charge 7: Grooming for sexual conduct with a child under 16).
Offending against Lela Stanley
32Ms Stanley met you through Ms Bishop, as she and Ms Bishop were friends. Ms Bishop introduced you to Ms Stanley as her boyfriend and originally told Ms Stanley that you were 18. Ms Bishop later told Ms Stanley that you were 16.
33Ms Bishop provided you with Ms Stanley’s number so that she could communicate with you using Ms Stanley’s phone, as she was not allowed access to a phone at home.
34Approximately two weeks after you met Ms Stanley, you started texting her. At first the messages were friendly, until you and Ms Bishop started arguing and you would message Ms Stanley about it, to ask why Ms Bishop was not active on social media. You and Ms Stanley frequently spoke about she and Ms Bishop attending school in text messages.
35Shortly thereafter, you started messaging Ms Stanley to ask if she wanted to have sex with you. The first time occurred after you had been in contact with Ms Stanley looking for Ms Bishop. You asked if you could ask Ms Stanley something, and then said 'Do you want to have sex with me'. Ms Stanley responded 'no'. You asked her why not, and Ms Stanley replied because you were Ms Bishop’s boyfriend. Over the course of that day you asked Ms Stanley for sex approximately five times. (Uncharged acts).
36Ms Stanley blocked your number in her phone, but Ms Bishop un-blocked it to continue contacting you and did not re-block you. You then subsequently resumed your contact with Ms Stanley, and in February 2019 asked her again if she would have sex with you. (Uncharged acts).
37Ms Stanley stopped talking with you for a time and deleted all of the messages on her phone from you. In April 2019 you started contacting Ms Stanley again when Ms Bishop broke up with you.
38On 28 April 2019 you messaged Ms Stanley repeatedly, asking her to help you get Ms Bishop back. When Ms Stanley told you that Ms Bishop would not get back with you, you started asking Ms Stanley for sex. (Charge 8: Encouraging a child under 16 to be engaged or involved in sexual activity).
39The conversation included the following messages:
YOU: I want fuck you.
[STANLEY]: Why me
YOU: Because I can't find anyone else.
YOU: I want fuck ur ass today.
YOU: So do you want give me fuck.
[STANLEY]: Give me 10 mins and I'll tell you.
YOU: I fuck your ass OK.
[STANLEY]: Okay.
YOU: Yes do you want suck my dick
[STANLEY]: Up to you.
YOU: The Park. In the Cranbourne.
[STANLEY]: Hell no.
YOU: I was fuck [Tasha] there it's nice.
[STANLEY]: No, please at [Dandenong].
YOU:Someone fuck your ass before
[STANLEY]: No never.
YOU: OK what about ur puss
[STANLEY]: No never.
YOU: So tomorrow I want see everything ur puss and boob's and ass OK
[STANLEY]: Okay
40During the conversation Ms Stanley asked, 'wait your 16 yeah' and you replied 'yes'.
41On 29 April 2019 you continued to message Ms Stanley asking for sex. (Charge 9: Encouraging a child under 16 to be engaged or involved in sexual activity).
42The conversation included the following messages:
YOU: Ok don't worry I was fuck you tomorrow OK. I really want fuck someone OK.
[STANLEY]: Okay
YOU: Can you waiting for me
[STANLEY]: Where
YOU: Anywhere you want
[STANLEY]: Library
YOU: OK
[STANLEY]: Where do u want to go
YOU: Fuck ur ass for puss. Or puss.
[STANLEY]: Up to you.
YOU: Can you send your puss and boob's please I really want to see now please please please please please please
[STANLEY]: My lnstagram and sc doesn't work I told you.
YOU: So please send me something. Please please please please
[STANLEY]: I can’t. Won't let me.
YOU: Ok. All see tomorrow.
[STANLEY]: What
YOU: Your body.
YOU: So you want easy fuck or hot
[STANLEY]: Up to you
43On 30 April 2019 you continued to message Ms Stanley asking for sex. (Charge 10: Encouraging a child under 16 to be engaged or involved in sexual activity).
44The conversation included the following messages:
YOU: So do you want I fuck your ass tomorrow
[STANLEY]: Up to you
YOU: Okay. So do you want I fuck your ass tomorrow
[STANLEY]: When and where
YOU: IDK you tell me
YOU: Let me fuck ur ass then go okay
[STANLEY]: Okay
YOU: So you want meet up with me tomorrow
YOU: I want fuck ur ass not pussy
[STANLEY]: Yes
YOU: Do you want I fuck your ass
YOU: Okay I fuck your ass tomorrow and suck my dick okay and show me all your body
45Throughout the period of time that you were in communication with Ms Stanley between 26 April 2019 and 21 June 2019, you repeatedly asked Ms Stanley to have sex with you, as outlined above. You intended for such communication to facilitate Ms Stanley engaging or being involved in the commission of sexual conduct with you. (Charge 11: Grooming for sexual conduct with child under 16).
Investigation
46On 21 June 2019, Principal Holly Burke met with Ms Stanley to talk about her contact with you. Ms Stanley told Ms Burke that you had started sending her messages to ask about Ms Bishop, but that you had progressed to texting and calling her, asking her to have sex.
47Police were subsequently notified and attended Ms Stanley’s address to speak with her. Ms Stanley’s mobile phone was seized and analysed, and a large amount of text messages between herself and you were downloaded.
48Ms Stanley later provided a statement to investigators on 3 July 2019 by way of a VARE.
49Ms Bishop initially did not cooperate with police investigation in March 2019, and the investigation was closed at that time. However, Ms Bishop later disclosed the offending to police and made a statement by way of a VARE on 10 January 2020.
Arrest and interview
50Police executed a search warrant at your address on 14 January 2020. You were not home at the time, however your father arranged for you to attend at the Dandenong Police Station later that day.
51When you attended at the station you were arrested and your mobile phone was seized.
52You were interviewed with the assistance of a Dari interpreter. During the interview, you admitted having contact with Ms Bishop in breach of the intervention order. You further stated:
a)you had first met Ms Bishop through Instagram, but couldn't remember who had initiated the contact;
b)you knew that there was an intervention order in place between you and Ms Bishop, and admitted having conversations with her after the order was in place. However, you said the conversations were about Ms Bishop removing the order;
c)Ms Bishop had been the one wanting a physical relationship. You had told Ms Bishop she was too young, but Ms Bishop said she didn't care;
d)Ms Bishop had told you that she was 15 or 16, and then later told you she was '11, 12, 13';
e)you were with Ms Bishop for 'maybe a month'. When asked how many times you had had sex with her in that month, you said that you could not remember;
f)you admitted sending explicit text messages to Ms Bishop on Snapchat and Instagram. However, when you told Ms Bishop to come and have sex with you in those messages, you were joking;
g)you admitted sending explicit text messages to Ms Stanley. However, the messages were a joke; and
h)you did not know Ms Stanley was a child.
53Following the interview, your mobile phone was forensically analysed by police. Photographs of you and Ms Bishop were located on the phone, as follows:
a) you and Ms Bishop were pictured together at a park on 3 July 2019. The GPS coordinates on the phone shows that the picture was taken at
[location omitted]. (Related summary offence 24: Contravene intervention order); andb) multiple pictures taken on 4 July 2019 depict you and Ms Bishop together kissing on a train. The GPS coordinates on the phone show that you were in the vicinity of [location omitted] that day. (Related summary offence 25: Contravene intervention order).
Nature and gravity of the offending
54Offences of encouraging a child under 16 to engage or be involved in sexual activity and grooming a child under 16 for sexual conduct, are both serious offences as recognised by the maximum penalty of 10 years imprisonment respectively. While they are offences that do not involve actual sexual conduct, it is well-established that the conduct prohibited can have very serious consequences for the young people involved, and has been described by the Court of Appeal in Director of Public Prosecutions (Cth) v Singh as 'insidious and often highly damaging'.[8]
[8] [2017] VSCA 146, [64].
55In relation to your offending against Ms Bishop, it my view it is particularly serious as she was 11 to 12 years of age at the time. Further, after Ms Bishop had disclosed your interest in her to her school in March 2019, an intervention order was taken out against you in May 2019 to prevent you from continuing your contact with her. Despite the nature and terms of the order, you continued your conduct against Ms Bishop resulting in the offending that gives rise to the charges for which you have been found guilty. The offending is sufficiently summarised above, however it is clear that you were persistent in your approaches, breaching the intervention order by your contact, and encouraging or grooming the victim to be involved in sexual activity with you by the nature of your communication. Further, your conduct had a physical element in that you followed Ms Bishop on one occasion, which forms part of the stalking charge.
56As to Ms Stanley, while she was older than Ms Bishop, she was 14 years old and in my view your offending remains serious. The conversations that give rise to the encouraging charges are explicit and it is clear that your sole motivation was to engage in sexual activity with her.
57While you were young and immature at the time, which I will address further below, it is self-evident that your conduct was entirely motivated by your own sexual gratification. Further, it was not single occasion offending. You persisted with your encouraging and grooming of the victims over a number of months and in relation to the younger victim, after an intervention order had been served on you preventing such conduct.
Personal Circumstances
58You are 23 years of age, and were 20 to 21 years of age at the time of the offending.
59You were born and raised in Afghanistan. You and your family suffered persecution by the Taliban because of your ethnicity and minority Shia Muslim faith, and you report having no happy memories of your childhood. Your father was a mechanic by trade, and your mother was engaged in home duties. You have five siblings, who you are close with.
60Your family were sponsored by a cousin in 2015 to come to Australia, and you arrived in 2016 on a permanent resident visa and you are yet to apply for citizenship. You live with your parents and three younger siblings in
Cranbourne East.61You completed 6 or 7 years of school in Afghanistan, and when you arrived in Australia, you attended an English language school followed by
Cranbourne Secondary College for one year. You completed Year 11 in 2018 and left school, working as a construction labourer and a painter.62The court has received four reports regarding your mental state: a psychological report of Pamela Matthews dated 1 May 2020; a psychological report of Gina Cidoni dated 2 May 2022; a Forensicare psychological report of Dr Joseph Sakdalan dated 17 August 2022; and the neuropsychological report of Laura Scott dated 20 September 2022.
63Ms Matthews assessed you while you were on remand for these matters in
April 2020. You reported to Ms Matthews that you had no physical or mental health problems, you had never consumed alcohol or drugs, and you had never had a girlfriend. Ms Matthews found your fixated interest in a non-related
eleven and a half year old, over an approximately eight month period, to be deeply clinically concerning.64Ms Matthews is of the opinion that you presented as very immature for your age. This developmental aspect of your presentation in conjunction with possible cognitive limitations observed on the day of interview, caused Ms Matthews 'great concern for [your] mental health and overall welfare in the adult remand system'.
65You were assessed by Ms Gina Cidoni in person in April 2022, and she observed you were 'quite immature in [your] presentation' reporting that your general cognitive ability is within the extremely low range of intellectual functioning. She noted even with the assistance of an interpreter, you struggled to understand even basic concepts.
66Ms Cidoni is also of the view that you meet the requisite number of endorsed symptoms for a diagnoses of PTSD although did not expand on this finding.
67Ms Cidoni concluded that,
'To reduce reoffending risk, taking into account [your] history of trauma, [your] cultural background as well as [your] obvious limitations, means [you require]…a suitably experienced psychologist who speaks [your] native language or in the presence of an interpreter and it must be in person.'
68Following the plea, I ordered a psychological report be prepared by Forensicare to address the issues around intellectual functioning in order to comment on the opinion of Ms Cidoni that you were in the impaired range, and the recommendation of Ms Matthews that you be cognitively assessed.
69Dr Joseph Sakdalan of Forensicare was unable to confirm a diagnoses of intellectual disability, and indicated you would require a further formal assessment. Dr Sakdalan is of the view that you can be considered psychologically immature with limited understanding of your sexuality, sexual issues and intimate relationships. He stated that you tended to deny or minimise your offending and that you had difficulties accepting that you had sexually offended although were cognisant that engaging in sexual conduct with pubescent and pre-pubescent girls was unlawful.
70Dr Sakdalan further opined you presented a 'moderate risk' of sexual recidivism.
71Ms Laura Scott, clinical neuropsychologist, completed a neuropsychological assessment on 30 August 2022, and found that your current neuropsychological profile is not consistent with an intellectual disability as previously suggested.
Ms Scott reported that your intellectual abilities are in the borderline range and your adaptive function is in the low average range.72Ms Scott observed that you demonstrated a growing understanding about the nature of your offending, when comparing your initial responses to Ms Matthews in 2020 to your most recent responses. Ms Scott opines whilst your understanding appears to be somewhat superficial, it is not unexpected given your borderline level of cognitive impairment.
73Two references were tendered from employers you work with in the building industry attesting to your excellent work ethic. A further reference was tendered from the Hossaini Society of Victoria, a community organisation indicating that you have been attending the programs of the group assisting in various community events.
Sentencing considerations
74Mr Pearson who appeared on your behalf at the trial and plea relied on a number of matters in mitigation.
75It was submitted that before trial you had offered to plead guilty to the charges to which you were found guilty. While I accept that there may have been efforts to resolve the matter, you pleaded not guilty to all charges before the jury maintaining that you believed the two victims were over 16 and in relation to the breach of the intervention order, that you did not understand the nature of the order when it was personally served on you by the police.
76Following an initial plea hearing, Mr Pearson sought an adjournment in order for you to be further assessed. As noted above, the reports of Dr Sakdalan and
Ms Scott were then obtained. Mr Pearson relies on the fact that you while you are not intellectually disabled, your abilities fall within the borderline range and that you are young, impressionable, immature and sexually naïve. It was submitted that these matters, together with cultural considerations, meant that you did not appreciate the wrongfulness of your conduct. As a result of the various findings, Mr Pearson submitted that Verdins principles are enlivened.77Mr Pickering who appeared on behalf of the Director of Public Prosecutions, submitted that given the result of the various experts, Verdins principles are not enlivened. He submits that as you do not suffer from an intellectual disability or ABI, it is unclear the extent of any mental impairment and therefore the extent to which the impairment is connected to your mental functioning and moral culpability. In other words, relying on Director of Public Prosecutions v O’Neill[9], the 'realistic connection' or 'causal link' is not established on the evidence. Further, that the evidence does not show that any mental impairment affected your ability to appreciate the wrongfulness of your conduct or make calm or rational decisions.
[9] (2015) 47 VR 395.
78While I accept that at the time of the offending you were immature, in my view the assessment in terms of your intellectual capacity does not meet the Verdins criteria. You pursued the two victims over an extended period and after you had been served with an intervention order in relation to the younger victim. While you may have had some lack of appreciation as to the serious nature of the intervention order, consistent with the jury's verdict, you understood enough to know that the authorities had intervened and conveyed to you that you were not to approach or contact the victim. As noted above, the text messages and your conduct demonstrate a determined and relentless plan on your behalf to engage in sexual activity with the victims.
79I do accept however that as a result of your immaturity and limited intellectual capacity, custody will be more burdensome for you as Ms Matthews found when you were on remand. The prosecution, while not accepting that Verdins principle 5 has been met, accepted that prison will be onerous for you and that you may be adversely influenced by older prisoners.
80Mr Pearson submitted that delay is relevant in the circumstances. You were arrested and charged in January 2020 and there appears to be a long delay while your matter was at the committal stage before it came to this court in October 2020. The special hearing was vacated on a number of occasions due to the COVID-19 pandemic and the trial did not commence until February 2022. In my view delay is relevant as you have had this matter hanging over your head for a significant period and the additional delay is not attributable to you.
81You are 23 years of age and were 20 to 21 at the time of the offending. You are therefore a youthful offender. Further, as already noted you are very immature for your age and your intellectual abilities are compromised to a degree. Since the offending you have engaged with various mental health practitioners in preparation for your plea hearing and you have developed better insight in relation to the nature of your conduct. Thus in the circumstances, in my view your rehabilitation remains a prominent sentencing consideration.
82As to your prospects of rehabilitation, as noted, it is apparent that as you have gone through the process of being assessed by various mental health professionals, your appreciation of your conduct and your insight has improved. You have no prior convictions and you have supports in the community. With further assistance, education and support, in my view your prospects can be assessed as very good.
83General deterrence is a paramount sentencing consideration. Sexual offending of this nature against young people is very serious and is highly damaging to young people. Although you have no prior convictions, specific deterrence is also relevant. Your immaturity and naivety provides, to some extent, an explanation for your conduct, however your conduct was persistent and motivated by your desire for sexual gratification. While I accept that you now have a greater appreciation of the wrongfulness of your conduct, the sentence I impose must be a strong reminder to you of the consequence of such offending.
84I take into account that you served your time on remand under onerous prison conditions as a result of the COVID-19 pandemic. While the conditions have improved, there is uncertainty as to when the prison environment will revert to normality. As such I accept that any further time in custody will continue to be more burdensome as a result.
85I take into account your visa status as a non-citizen and that you may be at risk of deportation as a result of this offending. The prosecution accept that this is a matter the court can take into account in the sentencing calculus. Further, as to the sentence I will impose, while it is speculative as to whether or not you risk deportation, I take into account that this uncertainty will make your time in custody more burdensome.
86Charges 3, 4, 8, 9 and 10, the encouraging charges and Charges 7 and 11, the grooming charges, are sexual offences as defined by clause 1 of Schedule 1 of the Sentencing Act 1991 (the Sentencing Act). As such as you will be sentenced to a term of imprisonment on all of the encouraging and grooming charges, following the sentence on the first two of those charges you fall to be sentenced as a serious sexual offender. In those circumstance pursuant to s 6D(a) the court must regard protection of the community as the principle sentencing purpose and may order a disproportionate sentence pursuant to s 6D(b). Further, that the presumption of concurrency is reversed by s6E. However in all the circumstances, while I take these matters into account, having regard to the principles of totality and proportionality, I do not propose to impose a disproportionate sentence, nor does the prosecution seek such a sentence.
87Mr Pearson submitted that in all the circumstances, the time you have served on remand being some 114 days is sufficient time in custody if combined with a Community Correction Order. Mr Pickering submitted that given the serious nature of the offending, the relevant sentencing considerations are unable to be met with such a disposition and the only sentence available is a term of imprisonment with a non-parole period.
88I had you assessed for a community correction order and the writer of the assessment report found you suitable. You were also assessed in that report as being a low risk of reoffending. As the risk assessment was in contrast to that of the Forensicare report, the prosecution sought to cross-examine the writer of the report and clarify his conclusions. As was made clear in evidence, the corrections assessment as to risk was in relation to 'general offending' and no assessment tool was applied in relation to the risk of sexual offending. Nonetheless, you remain suitable for such an order in the view of the assessor.
89In my view a further term of imprisonment is required. The question is whether the relevant sentencing considerations are able to be met by the imposition of a combination sentence. In my view in all the circumstances they can. A Community Correction Order following a further term of imprisonment would allow for the dual purposes of addressing your particular circumstances and the causes of the offending, while being structured to minimise the risk of
re-offending by promoting your rehabilitation.[10] The Corrections order will, as recommended, require you to complete a sex offenders treatment program and contain other conditions including unpaid community work and supervision.[10] Williams v The Queen [2018] VSCA 171, [47].
90Finally, Mr Pearson provided the court with a number of previous sentences of this court where the defendant had been sentenced on grooming charges (following a plea of guilty) and the result was a combination sentence pursuant to s 44 of the Sentencing Act. While each case must turn on its own facts, I have taken those decisions into account.
Sentence
91Mr Azimy would you please stand.
92Mohammed Jan Azimy, on Charges 3, 4, 8, 9 and 10, encouraging a child under 16 to engage or be involved in sexual activity, you are convicted and sentenced to 6 months imprisonment on each charge.
93On Charge 7, grooming for sexual conduct with a child under 16, you are convicted and sentenced to 8 months imprisonment. This is the base sentence.
94On Charge 11, grooming for sexual conduct with a child under 16, you are convicted and sentenced to 6 months imprisonment.
95On Charge 5, persistent contravention of an intervention order, you are convicted and sentenced to 6 months imprisonment.
96On Charge 6, stalking, you are convicted and sentenced to 2 months imprisonment.
97On Summary Charges 11, 13, 24, 25 and 26, contravention of a family violence intervention order, you are convicted and sentenced to 14 days imprisonment on each charge.
98I direct that 2 months of the sentence on Charge 11 be served cumulatively on the sentence imposed on Charge 7, making for a total effective sentence of
10 months imprisonment as the prison component of the combination sentence pursuant to s 44 of the Sentencing Act.99Following the completion of the prison component of your sentence, you will be placed on a Community Correction Order for a period of 2 years. In addition to the standard conditions that attach to all Community Correction Orders, you will be required to complete 200 hours of unpaid community work, you will be required undertake offending behaviour programs under the supervision of the Sex Offender Advice and Treatment Service and you will be subject to supervision.
100Pursuant to s 48C of the Sentencing Act, I direct that all hours completed as part of the treatment and rehabilitation condition be credited as hours of unpaid community work.
101Pursuant to s 18 of the Sentencing Act, I declare that 114 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
102Finally, as the encouraging and grooming charges are 'Class 2' offences, you are deemed to be a registerable offender and will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
- - -
0
4
0