Director of Public Prosecutions v Guirguis (a pseudonym)
[2018] VCC 1694
•17 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Hilmi GUIRGUIS (a pseudonym) |
---
| JUDGE: | HER HONOUR JUDGE MARICH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 8 October 2018 |
| DATE OF SENTENCE: | 17 October 2018 |
| CASE MAY BE CITED AS: | DPP v Guirguis (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1694 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr S. Ginsbourg | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr A. Patton | Valos Black & Associates |
HER HONOUR:
1Hilmi Guirguis[1], you were charged on indictment with one charge of use a carriage service to procure a person under 16 years, contrary to s.474.26 of the Criminal Code (Cth), for which the maximum penalty is
15 years' imprisonment, and one charge of use a carriage service to transmit indecent communication to a person under 16 years, contrary to s.474.27A(1) of the Criminal Code (Cth) for which the maximum penalty is seven years' imprisonment. You pleaded not guilty to both charges and a trial by jury ensued. You were found guilty of both charges by the jury.[1] A pseudonym name
2The facts of offending are as follows.
3On 4 July 2017, when you were aged 38 years, you opened an account on Skout, a social networking and dating application and website. The email address provided to open this account was [email protected][2], based on the name of a friend you had not seen for a number of years. You subsequently used that account to engage in online sexualised conversations with other Skout account holders.
[2] A pseudonym applied to email
4On 30 July 2017, at 4.43 pm, you commenced an online conversation with the victim, TA, who was then aged 11 years. TA's public profile on Scout stated that he was 31 years old. The conversation occurred via an exchange of messages and pictures through Skout for the next 40 minutes, during which conversation you both exchanged telephone numbers, and spoke by phone.
5At the beginning of the exchange you sent TA a picture of your erect penis with the message, "Do you like it, baby?" TA replied that he wanted to “suck it.” You then told the boy, two minutes into the exchange of messages, "Send me your sexy pictures", and the boy sent you a picture of his penis and buttocks.
6He asked you if you wanted to meet up. The following exchange then took place between you.
Accused: R u drive?
TA: I’m 12 years old mate.
Accused: Oh
Baby
Where you like to meet daddy?
TA: Park.
Do you drive?
Accused: Do you like to come with daddy?
I’ll come and pick you up and bring you back baby.
I live in Reservoir.
Where you living baby?
TA: Thomastown.
7You then sent two more pictures of your penis (this behaviour establishes Charge 2 on the indictment, using a carriage service to transmit indecent communication to a person under 16), and, after a specific request from the boy, a photograph showing your face.
8In the course of the exchange of messages you asked TA if he liked "sucking daddy cock". He asked to meet, and you said, yeah baby. You told him if he was not comfortable to come to your place that he could suck it in your car, “baby". TA agreed he would come to your house.
9You asked him, "Do you love sucking cock?" TA replied to that that he had not tried it before. He later told you, "Soz, I'll feel but not suck. I'll strip you but not suck and I'll kiss you".
10TA used Skout to send three audio messages to you. In those messages, which I have listened to, and which clearly demonstrate TA's young age, he asked you to call him on a particular telephone number.
11Within minutes of receiving those messages you called the number provided by TA. The duration of that call was several minutes.
12After that telephone call, TA told you that he did not want to suck your penis, but then said, "I like to kiss your ballsack and kiss your lip and strip you". He asked you what time you would meet. You replied you were free. You told him, send your address please, and he said no, that his mum got killed just now, she got ran over, and he suggested Tuesday, at 6.30, he would come to your house, "One hour". The conversation then ended.
13The discussion which resulted in agreement that you would meet for sexual activity was the factual basis for the charge of use a carriage service to procure a person under 16 years.
14I find, as submitted by your counsel, that you took no further steps to meet with TA, and that your sexual interest in him was confined to the approximately
40 minutes marked in time by the Skout correspondence.Arrest and interview.
15On 5 February 2018, at about 6.45 am, you were found by police in the rear compartment of your white Toyota Hi-Ace van, parked at the back of a service station in Kealba. Police seized a number of electronic devices with your permission and later analysed those devices, and found the images of your penis that you had sent to TA via Skout, and the image of your face that you had sent to TA also via Skout.
16You were interviewed by police on 5 February 2018, and admitted to using Skout. Although you made initial denials of using the email address, [email protected], you later accepted that you had used the account linked to that email address for the purpose of corresponding via Skout. You denied the allegation that you had asked a child to engage in sexual activity with you via Skout. However, you recalled chatting with someone on Skout whom you realised during the conversation was a child. Upon doing so you said you sought to discourage further contact.
17You admitted sending a photograph of your penis. You said you were the father of a son who was about 12 years old and consequently would never do the things you were being accused of.
18You agreed to provide your fingerprints and a DNA sample to police.
The trial
19As I have mentioned, you pleaded not guilty to both offences, and a trial ensued before jury. In relation to the charge of procuring you denied any intent to procure TA to engage in sexual activity and you maintained that you believed the recipient was at least 16 years of age. Further, you denied that any intention to procure overlapped in time with any belief that the recipient was under age.
20In relation to the charge of transmission of indecent material you claimed that, in the Skout environment, a picture of your erect penis could not be considered indecent, and furthermore that you believed that at the time of sending the image or images that the recipient was at least 16 years of age.
21By its verdicts, the jury rejected your defences on both charges. I accept the prosecution's submission that, consistent with the jury's verdicts, you knew or believed that the victim was a pubescent child at least by the early stages of the Skout conversation, three minutes after it had commenced between you, that TA had told you that he was 12 years old and had sent you pictures of his penis and buttocks. I have seen those images and they are entirely consistent with TA's, albeit false, claim, that he was 12 years old when he was actually 11. The jury by its verdicts rejected your assertion in your record of interview that you did not realise that the victim was a child until you both spoke on the telephone approximately 25 minutes into the conversation.
22Though you are not entitled to any discount in sentence for pleading guilty and have not shown any remorse (see Crimes Act 1914 (Cth), s.16A2(f)) I note that you willingly admitted a number of matters in a notice of agreed facts comprising 14 paragraphs which has facilitated proof of the prosecution case. You also provided two mobile phones, a Toshiba laptop computer and several USB sticks to police upon your arrest and I will allow some modest weight in mitigation of penalty to reflect the utilitarian value of those admissions and cooperation.
Victim impact statement
23Under s.16A2(EA) and 16AB of the Crimes Act 1914 (Cth), I am obliged to take into account a victim impact statement for the victim if the victim of an offence has suffered harm as a result of the offence. A reference to all statutory provisions that follow should be taken as a reference to this Act.
24In this case the victim, TA, did not give evidence or provide a victim impact statement. However, his mother, AD, has provided a statement dated 24 September 2018.
25In her victim impact statement, AD has described her anxiety and panic as a result of police arriving at her house and investigating the circumstances surrounding her son's victimisation. In describing the effects of the offences upon her son, TA, she observes that he found it hard to engage in counselling because he did not like leaving school and drawing attention to himself. She documents how TA was “showering all the time.” I note from the statement that TA now has a mentor, which is helping, and AD has expressed the view that TA does need a mentor to help him relate to a male figure after "the damage".
26It was acknowledged in the course of the plea in mitigation of penalty by the Learned Prosecutor that, unfortunately, TA had been the subject of other offending not involving you, including contact offending. Hence I have read AD's victim impact statement very carefully and I have now summarised and repeated here some of the matters to which she has referred, but I have also been mindful not to consider any injury, loss or damage resulting from the offence over and above the trauma and harm that I infer that an 11 year old boy would experience after offending of the nature charged. In doing so I have applied s.16A(2E) of the Crimes Act and noted the observations of the Court of Appeal of Victoria in Adamson v R (2015) 47 VR 268 at [17]-[20] and the cases cited therein.
Personal circumstances
27You were born in Iran in November 1978 and as I have noted you were aged 38 at the time of offending. You are now 39 years of age and prior to your arrest and remand into custody were employed as a painter.
28You fled Iran in 2012 due to ongoing persecution arising from your family's political affiliations and your own conversion from Islam to Christianity.
29You travelled to Australia following a boat journey from Indonesia arriving on Christmas Island and being held in immigration detention before being transferred to Curtain Detention Centre in Western Australia. You spent a total of 52 days in detention before being granted a temporary protection visa which led to a bridging visa while your application for a permanent humanitarian visa was being considered.
30You successfully completed secondary and tertiary education in Iran graduating from university with a Mechanical Engineering Degree.
31Prior to fleeing Iran, you were working in the film industry producing mainstream and popular films for the Iranian market.
32Your family remains in Iran, including your wife and son (now aged 13), as well as your mother and two brothers. I have been told that your family is enduring regime imposed restrictions and persecution.
33Your wife is employed as an accountant and your son is a student.
34After you left Iran, it had been your intention that your wife and son would eventually join you once you held the necessary visa. Following your arrest and remand I have been advised that your visa has discontinued or that there is a problem with the continuation of your application. As you no longer hold a visa to remain in Australia the ability for your wife and son to join you here is unknown.
35I have been told that whilst on remand your contact with your wife has been infrequent given the cost involved.
36At the time of your arrest on 5 February 2018, you had become homeless and were living in the van which I have mentioned. The van was left at the service station where you had been located by police. As a result of being remanded into custody the van was stolen and whilst it was later recovered you were told that none of your possessions were recovered, including your tools of trade. The van is now safely in the possession of a friend. The loss of your possessions has caused you anxiety and worry as well as that physical loss.
37I note that you have no previous criminal history whatsoever and no other criminal offending is alleged by the prosecution (s.16A(2)(m). Aside from commission of the present offences you are of good character and that is of mitigatory weight and it also supports a submission that you have good prospects of rehabilitation once your sentence of imprisonment concludes (s.16A(2)(n).
38Farsi is your main language and I have been informed there are no other Farsi speakers at Hopkins Correctional Facility where you have served your period of remand and where it is likely you will remain for your period of sentence. Together with a lack of family support in Australia, the absence of visits and the limited contact with your family and that the prospect of deportation is unresolved but a substantial risk I accept that your term of imprisonment may weigh more heavily upon you than upon other prisoners and I also allow for some mitigation of penalty on that basis in the exercise of mercy.
Moral culpability
39The offending occurred in the context of you conducting numerous sexualised chats on Skout in an adult-oriented online community. I accept your Counsel's submission that you did not set out to have this conversation with TA, however, I also accept the prosecution's submission that when you encountered TA, you had absolutely no hesitation in taking advantage of the fact that TA had trespassed into an adult space.
40Though the terminology you used with him is also employed in other logs of conversations that you engaged in, with consenting adults who were also using Skout, it is appalling for you to have used terms such as "daddy" and "baby" in the sexualised communications surrounding your criminal acts with TA.
41You knew or believed that you were more than 20 years older than him.
42He was only 11 years old.
43What was proposed between you was oral sex, which is penetrative sexual activity between an adult and an 11 year old (albeit that he was masquerading as a 12 year old, which is of no difference whatsoever in criminality).
44I consider Charge 1 to be a serious example of the offence and accept the prosecution characterisation of Charge 2 as being a mid-range example of the offence.
45I take into account the purposes for which sentences must be imposed in this case, including the need for deterrence. I accept the prosecution's submission that general deterrence is a significant sentencing consideration for offending of this nature and that specific deterrence also requires emphasis. I must also punish you and denounce your conduct and I do (s.16A(j)-(k)).
Sentencing submissions
46I accept that the central requirement in imposing a sentence upon each count is to impose a proportionate sentence that is of a severity appropriate in all of the circumstances of each offence (s.16(1)).
47It was accepted by both parties that in the circumstances of this case the only appropriate sentence was one of immediate custody (s.17A). I have been mindful of the fact that this is your first term of imprisonment and I trust that it will be of salutary effect.
Sentence
48On the count of procuring a person under 16 years of age you are convicted and sentenced to three years and six months' imprisonment to commence today. On the count of use a carriage service to transmit an indecent communication to a person under 16 years you are convicted and sentenced to 18 months' imprisonment.
49It is my intention that I order that six months of the sentence imposed on Count 2 be served cumulatively upon the sentence imposed on Count 1.
Mr Ginsbourg, unless you otherwise submit I will order that the sentence imposed upon Count 2 commences two years and six months after the commencement of the sentence imposed on Count 1.50MR GINSBOURG: I don't otherwise submit, Your Honour.
51HER HONOUR: The total effective sentence, to use Victorian language, is therefore four years' imprisonment and I order that you serve two years and three months before you are eligible to apply for parole. I note that s.19 of the Crimes Act does not require all sentences announced before the non-parole period is reached to have been served (R v DS [2005] 153 ACR 194).
52I declare 254 days pre-sentence detention reckoned as served. Is that the appropriate order?
53MR GINSBOURG: It is, Your Honour. Can I also draw Your Honour's attention to s.16F(2)?
54HER HONOUR: I am not making a recognisance release order, I am ordering it.
55MR GINSBOURG: No, sub-s.(2) relates to - sorry.
56HER HONOUR: I have just making a head sentence with a non-parole period.
57MR GINSBOURG: Sorry, 16F(1) is what I should have said.
58HER HONOUR: Yes, thank you very much. Mr Guirguisi, I must explain to you carefully. I have ordered that you serve an immediate term of imprisonment of two years and three months less the 254 days that you have already served. At that point you may apply to the authorities for an order for parole which is normally served in the community if granted under supervision.
59If the parole authorities decide to make that order that order will be subject to conditions of release. If you are paroled that parole order may be amended or revoked and if there are breaches of those conditions once you are released on parole, assuming that you are, there will be consequences that follow, specifically you may be brought back before me or you may be brought back before the parole authorities or both.
60Is that satisfactory, Mr Ginsbourg?
61MR GINSBOURG: Yes, Your Honour.
62HER HONOUR: Thank you. Ancillary order or orders. As you have been found guilty of two registrable Class 2 offences I declare you are a registrable sex offender and I order that you comply with reporting obligations as set out in the Sex Offenders Registration Act Victoria for the mandatory period of 15 years. That is correct, Mr Prosecutor?
63MR GINSBOURG: Yes, Your Honour.
64HER HONOUR: Thank you. I will ask my associate to explain very briefly the effect of that order and also to observe Mr Guirguis signing that order. While that is taking place were there any other orders or matters to raise?
65MR GINSBOURG: No, Your Honour.
66MR PATTON: No, Your Honour.
67HER HONOUR: Thank you very much.
68MR PATTON: Your Honour, might my instructor likewise approach?
69HER HONOUR: By all means. Thank you, that has been done.
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