Director of Public Prosecutions v Hijazin
[2015] VCC 1078
•10 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01513
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARIO HIJAZIN |
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JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 May 2015, 10 July 2015 | |
DATE OF SENTENCE: | 10 July 2015 | |
CASE MAY BE CITED AS: | DPP v Hijazin | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1078 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Holding | OPP |
| For the Accused | Mr S. Payne | Victoria Legal Aid |
Note: A pseudonym has been used in this case
HIS HONOUR:
1 Mario Hijazin, you have pleaded guilty to one charge of sexual penetration of a child under 16 and two charges of indecent act with a child under 16. The maximum penalty for the first offence is 25 years' imprisonment and the maximum penalty for each of the remaining two offences is ten years' imprisonment. I have heard a summary of the offending. It is not my intention to repeat the whole summary. It has been tendered as Exhibit A in the plea proceedings.
2 Briefly, your family were close family friends with the victims’ family. The victims are two boys who were aged 11 and 12 at the time of the offending. You were close to the victims and would often see and speak with them. In 2012 you had been staying at their house overnight, as you were assisting their father with some work. The victims shared a queen size bed in their bedroom and you would either sleep on the couch in that room or between the two victims in their bed.
3 On 9 June 2013, the victims' older sister went into their bedroom. She saw the youngest victim playing with his penis. She was shocked. She asked him what he was doing and he replied, “Mario taught me”. Concerned, she told her mother to speak to the victim, which she did. The victim told his mother that you made him play with his 'rude part', that you played with his rude part and that you would suck his rude part. He also told his sister that you would suck his penis.
4 The matter was reported to police. In a video/audio recording with the police the victim described an incident where you had sucked his penis and when asked to stop, you would not. This is the conduct that constitutes Charge 1.
5 Charge 2 relates to conduct described by the victim to his mother. This included masturbating him and playing with his ‘rude part’.
6 Charge 3 relates to the older brother. Once the offending had been disclosed by the younger victim, the older victim, in an interview with police, disclosed that there had been an instance where he started to fall asleep in the lounge room when you started to play with his ‘rude part’. He said you kept doing it for some minutes and that this caused his underwear to be wet and white stuff to be in his underwear.
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Mr Hijazin, this is serious offending. You have sexually abused two vulnerable young men. Their family trusted you and you betrayed that trust. I have read a victim impact statement from the mother of the boys and it describes how relationships within the family have been profoundly affected by your criminal behaviour. The father of the boys blamed his wife,
Ms Phillips[1], for being too trusting and Ms Phillips believes the offending contributed to the breakdown of the marriage. Ms Phillips is now looking after the children in transitional housing. She feels alone and she also feels that she has lost her boys. The eldest boy is angry with his younger brother for bringing this matter into the open.
[1] Eva Phillips is a pseudonym
8 Mr Hijazin, general deterrence, denunciation and just punishment are all central sentencing considerations in a case like this. I have a responsibility to ensure that members of the community understand that it is a very serious matter to abuse young children. In most cases of this type offenders go to prison.
9 I am not going to make an imprisonment order in this case. I will now explain why.
10 First, you have an intellectual disability. It was diagnosed in 2001 when you were 13-years-old. An assessment conducted in February 2001 through Education Victoria revealed a full scale IQ of 60. In Year 8 you transferred to Emerson Special School. On 5 July 2011 you received a Statement of Intellectual Disability pursuant to the Disability Act of 2008. On 16 October 2014 you were examined by Ms Mathews, a forensic psychologist, and assessed as having a full scale IQ of 70. I am satisfied that your intellectual disability affected your judgement and decision making, and for that reason your culpability is reduced and the application of principles of deterrence and denunciation must be moderated.
11 Second, you have pleaded guilty to the offending. I am satisfied you now have appropriate insight into the wrongfulness of your behaviour. Your plea is an acceptance of responsibility for what you have done. Importantly, it has saved the victims from the ordeal of having to give evidence in a trial.
12 At an earlier listing of this matter the prosecutor explained that there would have been real difficulties in presenting evidence from the complainants if the matter had proceeded to trial. In this situation your guilty plea is very significant. Your plea has also saved the community the cost and expense associated with such a trial. You will be given significant credit for all these matters.
13 Third, although you have been in trouble before, you have never been in trouble for sexual offending. The offending on this occasion was not deliberate or planned. It could best be described as opportunistic.
14 Four, you suffer from a rare physical condition called Hyperekplexia Syndrome. The syndrome can cause the muscles in the body to freeze resulting in a person falling down. One of your brothers is so severely affected by this condition that he is required to live in supported care accommodation. You suffer neck stiffness and you have had past episodes of falling.
15 Five, you have very good family support and I note that you are keen to work.
16 Finally, a Justice Plan assessment has been conducted. The proposed plan, together with the support offered by Community Corrections, will offer you support and supervision, and minimise the likelihood of any repetition of this sort of behaviour. This is in your interests and in the interests of the community.
17 Mr Hijazin, for all these reasons I have decided that you should be released on a Community Corrections Order for a period of three years. You are to report to the Dandenong Office of Community Corrections at 10.00 am on Monday 13 July. The order will have the following conditions attached - you are to perform 300 hours of community work; you are to be under supervision; you are to attend for treatment and rehabilitation in relation to drug use; you are to attend for treatment and rehabilitation in relation to mental health; you are to attend for treatment and rehabilitation in relation to programs that reduce reoffending; and, finally, you are to comply with the Justice Plan for a period of 2 years. I note that the second last condition will involve Community Corrections and Disability Services working together to determine which program will best address the risk of sexual reoffending.
18 Mr Hijazin, had you pleaded not guilty and been found guilty after a trial, you would have been sentenced to an immediate term of imprisonment.
19 I am required to place you on the Sexual Offender’s Register for life.
20 I order that you undergo a forensic procedure for the taking of a scraping from your mouth. For the purpose of undergoing that procedure, you must report to the Officer in Charge of the Dandenong Police Station during the four week period commencing 28 days after today’s date. If you fail to co-operate in the taking of the mouth sample, the police may obtain a blood sample from you and they may use reasonable force to obtain that sample. I make the order for the following reasons; the seriousness of the offending, the order is in the public interest and the order is consented to.
21 So in summary, Mr Hijazin, you are now on a Community Corrections Order for the next three years. That means that you cannot commit any further offences during that period of time and that you must comply with all of the conditions of the order. If you fail to comply with the conditions, or if you commit further offences, you will be brought back to court and I will deal with you again for these charges. Do you understand that?
22 OFFENDER: Yes, Your Honour.
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