Director of Public Prosecutions v Dervish

[2016] VCC 328

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01405

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

SALIH DERVISH

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 February 2016
CASE MAY BE CITED AS:	DPP v Dervish
MEDIUM NEUTRAL CITATION:	[2016] VCC 328

REASONS FOR SENTENCE
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Subject:                     Use Carriage Service - Child Pornography
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:                  Sex Offender Registration – Life Reporting.
  9 months' immediate imprisonment.  12 months recognisance.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Payten
For the Offender	Mr K. Boden

HIS HONOUR:

1Salih Dervish, you have pleaded guilty to three charges.  Two of the charges are Commonwealth offences, the other is a State offence.

2The first charge is that you used a carriage service to access material, being child pornography material, contrary to sub-s.474.19(1)(a)(i) of the Criminal Code 1995 (Cth).  Your offending in relation to this charge extended over a period of approximately one month between about 17 April 2015 and
19 May 2015.

3The maximum penalty for this offence is 15 years' imprisonment.

4The second charge is different.  In this charge you used a carriage service to make available child pornography material, contrary to sub-s.474.19(1)(a)(iii) of the Criminal Code 1995 (Cth).  This offending occurred on 5 May 2015.

5The maximum penalty for this offence is also 15 years' imprisonment.

6The third charge is that you knowingly possessed child pornography.  This offence occurred on 20 May 2015 and relates to a number of child pornographic images found on computer equipment in your possession when you were arrested on 20 May 2015.

7The maximum penalty for this offence at the time that you offended was five years' imprisonment and you must be sentenced for this offence on that basis.  However, it is worth noting that the Parliament of this State regards this kind of offence as very serious, reflective in the fact that recent amendments that came into force from 1 December 2015 doubled the maximum penalty for this kind of offending to ten years' imprisonment.

8Section 16A(1) of the Crimes Act 1914 (Cwlth) (hereinafter referred to as “the Act”) requires me in sentencing you for the Commonwealth charges to impose a sentence that is of a severity appropriate in all the circumstances of the offence.

9The circumstances of your offending were set out in a written summary read to the Court by the prosecutor.  The written summary was accepted as an accurate summary by your counsel Mr Boden, (Exhibit A).  It is not necessary that I here repeat in full what is there set out except in a summarized way.  These sentencing remarks should be read however with what is set out in full in Exhibit A. In his plea on your behalf, your counsel conceded that your offending is extremely serious.

10On 20 May 2015, Victoria Police, acting on information received, attended at your home to execute a search warrant.  A search of your home located a computer tower, your mobile phone, an iPad and a digital hard drive.  When examined, these items were found to contain 4320 images that are child pornography.  Whilst about 75 per cent of the images when analysed were adjudged to fall into level 1, using the Australian National Victim Identification Library, there were more than 1000 images that when analysed were found to come within the other five categories.  A chart giving an accurate break up is at paragraph 13 of the summary. 

11I viewed a sample of the images on a notebook computer whilst in the courtroom.  The child pornography material that you accessed and downloaded to your equipment is best described as repulsive.  A description of the images falling into the various categories of images is set out in paragraph 14 of the summary.  Some of the material found in your possession was in video format.  A description of a sample of this appears at paragraph 15 of the summary.

12Charge 1 relates to the files containing child pornography that you accessed.  But you also shared those files giving access to your files to an unknown Yandex user in return for he allowing you to access his child pornographic files.  Mr Boden submitted that Charges 1 and 2 amount to the same offending.  I disagree.  They are separate offences.  By your conduct in  Charge 2 you facilitated another person to enjoy the fruits of your sordid conduct.  You did not just access the child pornographic material online.  You downloaded it and stored it electronically, presumably for later use.  That is the basis for Charge 3.  However, I have formed the view that there is no need to accumulate any of the sentence on Charge 3 with the sentences I will pass on Charges 1 and 2.

13The prosecution summary details the files found in your possession in an iMGSRC account titled “tillyoubegme” and an image found on your mobile phone that displayed you ejaculating over the image of a young girl’s face, a process known as a “tribute”.  In an online account using iMGSRC entitled “horneycock 68” you had let it be known that you were, “happy to provide tributes of girls of any age.  Just send me links or pics”.  These matters are not the subject of charges but put your offending in context.

14Mr Boden submitted that the period of time during which you accessed the child pornography was limited.  He also submitted that the material that you accessed was for your personal use and not to gain a profit.  Further, he drew attention to the fact that comparatively speaking the number of images you accessed was low when compared with other cases.  Further, he submitted that the level of skill and planning in accessing, downloading and sharing the child pornography was of limited technical sophistication.  I accept these submissions in all of the facts and circumstances here.  Nevertheless, whilst your offending is not at the most serious level, it is nonetheless properly to be regarded as a serious example of a serious offence.  I do not accept that the number of images downloaded by you should be seen as a mitigating factor when compared with other cases.  It is the content of the child pornographic material accessed and downloaded that is important, not necessarily the quantity.

15Section 16A(2)(g) of the Act requires me to take into account in sentencing you, the fact that you have pleaded guilty to these offences and s.16A(2)(h) requires me to take into account the fact that you have cooperated fully with those investigating your conduct.  You were charged and bailed on
20 May 2015.  You were cooperative with investigating police and answered all questions put to you in which you acknowledged your offending.  You pleaded guilty to the charges on the indictment at committal mention on
14 August 2015.  The matter proceeded by way of straight hand-up brief.  By your pleas you have saved the time and cost of a committal and trial.   Those matters are all to your credit and I have taken them into account in sentencing you.

16I also take your pleas of guilty into account as an indication of your genuine remorse for your offending.  I treat you as having indicated your intention to plead guilty at the earliest available opportunity.  Section 16A(2)(f) requires me to take these matters into account in sentencing you and I have done so.  Although there is only passing reference in the psychological reports tendered to you having empathy for the victims of your crimes, you did write to me after the plea in an effort to convince me that you do have remorse for the harm that your offending can cause the children who through no fault of their own find themselves as participants.  I accept that you now have insight into that issue and that your remorse that you have for your offending is both for the harm it has caused yourself and your family and also the unknown children depicted in the material that you were found with. 

17I turn to your background.  You are now aged 34 and you have no prior criminal history and nor are there any subsequent matters alleged against you.

18I received into evidence two psychological reports relating to you.  The first of these is a report from Edwin Kleynhans to whom you were referred on
26 May 2015, shortly after your arrest. I marked that report as Exhibit 3. 
Mr Kleynhans saw you on a number of occasions and diagnosed you as suffering from an adjustment disorder with mixed anxiety and depressed mood.  Mr Kleynhans said that you were suffering from marked distressed feelings because of these charges.  He said that there has been significant impairment in your social and occupational functioning and that you feel ashamed talking about your offending with family and friends because you were brought up with high moral standards.  You told Mr Kleynhans that you have the support of your partner Ms Gray.  She was in court to support you and she provided a favourable reference for you to which I shall later refer.  Mr Kleynhans referred you for further specialised treatment to another psychologist, Dr Hussain.  I received into evidence a psychological report from Dr Hussain dated 14 February 2016 which I marked as Exhibit 2.

19Dr Hussain obtained from you details of your past sexual experience which he detailed at paragraphs 8 to 10 of his report.  You told him that there was a decline in your sexual relationship with your partner and this, together with stress and long hours of work for both you and your partner, resulted in you becoming bored.  To relieve your boredom you accessed adult pornography online and this led you to eventually accessing child pornography.  You told
Dr Hussain that you began viewing child pornography out of curiosity and were aroused by images of women and young teens in school uniform.

20Dr Hussain thought that you displayed many features and dynamics of depressed mood predominantly related to the circumstances of your arrest and charging.  He confirmed the diagnosis of Mr Kleynhans, namely, that you suffer from an adjustment disorder with mixed anxiety and depressed mood.  Psychological testing showed that you have a strong sexual preference for adult females with a secondary sexual preference for juvenile females and a fetish for women/juvenile girls in school uniform.  This no doubt accounts for the fact that amongst the material found on your computer were images of former students that you had taught in sexual poses and wearing the school uniform of the secondary college where you worked as a teacher for 12 years..

21You have undergone treatment with Dr Hussain and at the time of his report he noted that you were still working through relapse prevention.  He gave the opinion that you were at a low risk of reoffending, “as long as he continues to implement the strategies discussed in treatment”.  In passing sentence I have taken into account the fact that you have voluntarily set about obtaining treatment for your psychological problems that caused you to offend in the way that you have.  It is a good step towards your rehabilitation.

22You are the second of three siblings born of parents of Cypriot descent.  You were born in Melbourne.  You have been living in a de facto relationship with your partner for the past three years.  You told Dr Hussain that your father was a strict disciplinarian who was verbally and physically abusive towards you as a means to manage your behaviour and performance at school.  Your mother was said to be caring, understanding and warm.  Whilst you may have had some difficulties with your father, your upbringing appears to have been uneventful and you were raised in a stable and good family.

23You are of above average intelligence and you are a qualified teacher having spent 12 years teaching at secondary level.  You have tertiary qualifications in education and a Bachelor of Arts degree.  You enjoyed teaching and because of this offending that profession has been lost to you.  You are a former sub- branch president of the Teachers Union.

24For a time after your arrest you were unemployed, but as I have said, you sought out therapy for your problems.  With encouragement you undertook and completed a business course at RMIT and this led you to commencing your own business which involves building handcrafted toy weapons used in LARP, an acronym for live action role play.

25I received into evidence a letter from your partner which I marked as Exhibit 4.  It is a lengthy reference in which she speaks highly of you.  Your partner also gave sworn evidence before me and was an impressive witness.  Amongst other things, she says that you have many friends and you are known for being caring, dependable, funny, clever and creative.  She also speaks of the personal harm you have suffered by losing your job and your profession and how your reputation has been sullied by this offending.  Importantly, she gives evidence that you will not reoffend.  She continues to support you.

26I also received a reference from Mr Dogan dated 19 February 2016.  He speaks of your remorse and what he describes as your internet and gaming addiction and there are repeated references to this in the materials.  He speaks highly of your character and also of the effect which losing your profession has had upon you.

27Mr Thomasse, a friend, also provided a reference in which he also speaks highly of you.  He is a registered psychologist and he thought your offending was entirely out of character.

28Another person to provide a reference is a friend, Larissa Zarafa.  In her reference she said, inter alia:

“It is my belief that Salih is truly sorry for the mistakes he made and that he has suffered an intense amount of grief, personal guilt and utter embarrassment as a result. When the charges were laid against him, Salih had clearly lost some of his ‘spark’.  He still appears to have lost weight which I attribute to the stress of the situation.  He has also been tearful and shown himself to be mortified at his wrongdoing.  Salih has always spoken keenly and enthusiastically about his teaching role, and I know the sudden loss of that position has shaken his life irreversibly.

Having said that, Salih has evolved since the charges were laid. He has studied, launched a small business and has also taken multiple steps to reform himself, including attending regular appointments with a psychologist, undergoing cognitive behaviour therapy and actively participating in mindfulness sessions.  I know Salih is willing to do what he can to make up his debt to society.  It is my personal belief that Salih is unquestionably sorry for what he did and that he will not do it again.”

29I also received similar references from Mr Richard Gray and Diane Farah, both of which I have taken into consideration.  Section 16A(2)(m) requires me to take these matters as to your personal circumstances into account in sentencing you and I have done so.

30Section 16A(2)(n) of the Act requires me to have regard to your prospects for rehabilitation.  I accept the thrust of what is contained in all of the character references that I have received into evidence about you and in the psychological reports.  I doubt that you will again offend in this way and I regard your prospects for rehabilitation as being reasonably good.

31Section 16A(2)(p) requires me to take into account in sentencing you hardship to a prisoner's family consequent upon a term of imprisonment being imposed.  As a prisoner’s family is almost always adversely affected by a term of imprisonment being imposed, it will only be in exceptional circumstances where that factor will carry much weight in sentencing discretion.  In my opinion there are no exceptional circumstances here that might operate to reduce any sentence that I impose.

32Section 16A(2)(j) requires me to have regard to the deterrent effect that any sentence I pass will have upon you and s.16A(2)(k) of the Act requires me to ensure that you are adequately punished for your offending.  Section 17A(1) of the Act requires that I not pass a sentence of imprisonment unless I am satisfied that no other sentence is appropriate in the circumstances.

33It is the importance of protecting children themselves that is reflected in the severe penalties proscribed by the parliament for these offences.  In sentencing for offending such as you have engaged in, appellate courts have repeatedly pointed to the need to protect children from those who would exploit them, and appellate courts throughout this country and abroad recognise the importance of the principle of general deterrence in such cases.  In R v. Jones 108 A Crim R 50 (WACCA) the court emphasised that in such cases a sentencing court should give less weight to good character and more weight to the principle of general deterrence. That is why in almost all cases a sentence that involves immediate imprisonment is called for.

34This is not only a case of accessing child pornography (Charge 1).  It has the aggravating features of enabling access to another stranger (Charge 2).  Whilst the offending in Charge 1 alone in normal circumstances might be done in private, and therefore confined, to then go on and enable others to access the fruits of that offending is, I think, conduct that needs to be stopped.  It is the kind of conduct that seeks to involve others in a perverted sense of sexual gratification where the victims are young children whom you will never know and in whom you have no regard whatsoever.  The children being unable to look after themselves, the courts must step in to protect them by deterrence when the laws have been shown to have been breached by those who offend as you have.

35Because I will sentence you to a term of imprisonment on the three charges, you are a “serious sexual offender” within the definition contained in s.6B(2) of the Sentencing Act 1991 (Victoria) for sentencing purposes.

36That means that in sentencing you on the State charge, Charge 3, of possessing child pornography, I must have regard to the protection of the public as the primary sentencing principle. I record that in sentencing you on Charge 3, I will sentence you as a “serious sexual offender”, and I direct that be entered in the records of the court with respect to the sentence imposed on Charge 3 pursuant to s.6F of the Sentencing Act 1991.

37Otherwise I state that in my judgment there is no need in this case for a disproportionate sentence and it has not been suggested otherwise.  

38The prosecution submitted that because of the kind of offending that you have engaged in and because of the need for the sentence to reflect general deterrence, then the sentence I impose must be a term of immediate imprisonment.  Mr Boden pointed to all of the mitigating factors that I have referred to above.  In particular, he emphasised:

·    your pleas of guilty at the earliest available opportunity and your co-operation with the police;

·    your expressions of remorse;

·    the fact that you have sought help from psychologist and have undergone treatment to address your psychological issues;

·    the fact that you have already been punished by losing the profession and career that you cherished;

·    the fact that you have no prior convictions nor any subsequent matters;

·    the fact you have undergone further study and commenced a new business in an effort to rehabilitate yourself;

·    that you have reasonable prospects for full rehabilitation;

·    the fact you are well regarded by friends and family as a person who is honest and trustworthy and, this offending aside, a person otherwise of good character.

39I have given full consideration to all of these matters.  However, because your offending is so serious, the sentence I impose must adequately reflect application of the principle of general deterrence and must adequately record the court’s and the community’s denunciation of your offending.  For these reasons I must impose a sentence that provides for your immediate imprisonment.  I am satisfied that a non-custodial disposition would be wholly inappropriate in all of the circumstances here.  However, in the exercise of my discretion I have formed the view that you would benefit from a relatively early release date and this is reflected in the sentence that I will now pass.

40On Charge 1, accessing child pornography using a carriage service, you are convicted and sentenced to a term of imprisonment of 18 months.

41On Charge 2, making child pornography available using a carriage service, you are convicted and sentenced to a term of imprisonment of 18 months.

42On Charge 3, possession of child pornography, you are convicted and sentenced to a term of imprisonment of nine months.

43Pursuant to s.19(2) of the Act, I direct that the sentence on each charge commence this day.  This results in a total effective sentence of 18 months' imprisonment.  I propose to suspend nine months of the total effective period of imprisonment.  Accordingly, after you have served the period of nine months, you may be released on a recognisance in the sum of $1,000 without surety to be of good behaviour for a period of 12 months. 

44For the purposes of s.6AAA of the Sentencing Act 1991 (Victoria), I state I have imposed a sentence being a term of imprisonment in respect of the three charges and I have reduced the overall sentence I would have imposed but for your plea of guilty to each charge.  Had it not been for your pleas of guilty to the charges, I would have imposed an effective term of imprisonment of three years and I would have directed that you serve at least two years of that sentence before being eligible for release on parole or recognisance.   

45I am required by s.16F of the Act to explain this sentence to you.  The purpose of the sentence is to reflect the gravity of the offences, but also to spare you the need or requirement to serve the full term of 18 months' imprisonment.  You will now go to prison and serve nine months of your sentence.  The period that you have already served whilst awaiting sentence will be taken into account.  Thereafter you will be released.  If you are of good behaviour over the ensuing 12 months, that will be the end of the sentencing process insofar as the court is concerned.  If you are not of good behaviour you will, in all likelihood, be brought back before the court and, depending upon the nature and seriousness of your transgression, the court may impose a fine up to $1,000, or extend the period of good behaviour, or impose a different penalty or revoke the order and send you back to prison for the balance of your sentence of nine months, or take no action.  You may apply to the court to vary the terms of the recognisance from time to time.  I ask you whether you are prepared to enter into the recognisance?  It requires your agreement and  that is why I ask you.

46OFFENDER:  I am sorry, Your Honour, I do not understand what you are  asking me.

47HIS HONOUR:  If you are to be released after nine months - - -

48OFFENDER:  Yes.

49HIS HONOUR: - - -you have to enter into a recognisance to be of a good behaviour.

50OFFENDER:  Yes, I accept that.

51HIS HONOUR:  You understand that?

52OFFENDER:  Yes.

53HIS HONOUR:  You will not be released otherwise.

54OFFENDER:  Yes, I understand that.

55HIS HONOUR:  So it requires your agreement.

56OFFENDER:  Yes, I agree to that.

57HIS HONOUR:  I further declare that you have served  24 days' pre-sentence detention and that 24 days pre-sentence detention be reckoned as having been already served under the sentences passed this day and be deducted administratively.

58The Director of Public Prosecutions has applied under the Sexual Offenders Registration Act 2004 that you be registered under the provisions of that Act. You are a registrable offender because you have been convicted of two charges of offences within s.474.19(1) of the Criminal Code Act and one charge under s.70 of the Crimes Act 1958 (Victoria).  Each of those offences is a Class 2 offence within clause 28A(i) of the Second Schedule to the Sexual Offenders Registration Act 2004.  Section 6(1) of that Act provides that upon sentencing you for these offences you are a registrable offender.  Section 34(1)(c)(iii) of the same Act requires that upon conviction for three Class 2 offences you are a registrable offender for life.  Henceforth you will have to comply with the provisions of that Act which are strict for the rest of your life, and I suggest you take advice as to your obligations under the Act because a breach of them can of itself lead to further offending.   

59Are there any matters arising out of that?

60MR BODEN:  Mr Dervish has signed an acknowledgement in regards to registration, which I can tender, Your Honour.

61HIS HONOUR:  Very well.

62MS PAYTEN:  No issues, Your Honour.  I have completed the recognisance release form and I seek to hand that up.

63HIS HONOUR:  Thank you.  I saw you speaking to Ms Payten during the course of the - Mr Boden.  Was there any issue?

64MR BODEN:  No, Your Honour, my apologies for that, but that was in regards to a request for consent to dispose his property application of my friend.

65HIS HONOUR:  Certainly.  Very well.  I thought I might have somehow or other transgressed in some way.

66MR BODEN:  No, Your Honour, not at all.

67HIS HONOUR:  Very well. 

68MS PAYTEN:  Your Honour, if I can just quickly clarify, in relation to the third offence, nine months' imprisonment - - -

69HIS HONOUR:  Yes.

70MS PAYTEN: - - -Your Honour is no doubt more familiar with State sentencing than I, my understanding was that if the sentence was less than six months it can be a simple straight sentence.  However, in excess of six months it requires some release mechanism that's separate from the federal release mechanism?

71HIS HONOUR:  No, 12 months.

72MS PAYTEN:  Twelve months.  My apologies, Your Honour.

73HIS HONOUR:  All of the sentences are to commence today, so effectively it is total cumulation - sorry, total concurrency.

74MS PAYTEN:  Yes, Your Honour.

75HIS HONOUR:  I think some of this material must be signed by my associate, Ms Gallagher, not me.  Here we are.  Mr Boden, I do not wish to overly impose upon you, but I do worry about offenders knowing, or being aware of all of their obligations under the Sex Offenders Registration Act, especially in circumstances where, upon their release, they are released on a recognisance to be of good behaviour and even a technical breach can technically trigger a breach of the recognisance release order.

76MR BODEN:  Yes, I will do that.

77

HIS HONOUR:  So can I ask you to just make that you explain that to

Mr Dervish - - -

78MR BODEN:  Certainly, Your Honour.

79HIS HONOUR:  - - - so that he knows what his obligations will be upon his release from prison - - -

80MR BODEN:  Yes, I will.

81HIS HONOUR:  - - - to report to the relevant police and so forth?

82MR BODEN:  Yes. I will.

83HIS HONOUR:  Thank you.  There is another form under the Sex Offenders Registration Act that he must sign.

84(Form under the Sex Offenders Registration Act signed and acknowledged.)

85No other matters?

86MS PAYTEN:  No other matters, Your Honour.

87HIS HONOUR:  Very well.  Could I thank both counsel for your submissions in this matter. 

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