Director of Public Prosecutions v Hussain
[2016] VCC 628
•13 May 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-00030
Indictment F13384986
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JALAL HUSSAIN |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 May 2016 | |
CASE MAY BE CITED AS: | DPP v Hussain | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 628 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms D. Karamicov | |
| For the Accused | Mr A. Pyne |
HER HONOUR:
1 Jalal Hussain, you have pleaded guilty to one charge of grooming for sexual contact with a child under the age of 16 years, Charge 1; one charge of procuring a minor for child pornography, Charge 2; and one charge of possession of child pornography, Charge 3. The maximum penalty in respect of Charges 1 and 2 is ten years’ imprisonment. The maximum penalty in respect of Charge 3 is five years’ imprisonment.
2 The prosecutor made application for the taking of a forensic sample from you and for the making of a forfeiture and disposal order in respect of a phone seized from you and the material on it. The making of those orders was not opposed.
3 If you are convicted on each of Charges 1 and 2, you will be sentenced as a serious sexual offender in respect of Charge 3, pursuant to s.6B(2) of the Sentencing Act 1991. The prosecutor did not seek a disproportionate sentence for the purposes of community protection.
4 Each of these charges is a Class 2 offence, pursuant to s.2 of the Sex Offenders Registration Act 2004. Your plea of guilty in respect of each of these offences means that upon being sentenced, you become a registrable offender and must comply with the reporting conditions of that Act for life.
5 The circumstances of your offending are set out in the summary of prosecution opening upon plea, which was tendered as Exhibit B. In brief, the circumstances are as follows: The offending occurred between 28 February 2015 and 30 July 2015. The complainant was ten-years-old at the time of the offending, and you were between 23 and 24-years-old. You and the complainant did not know each other.
6 Sometime in July 2014, you began following the complainant on Facebook. On 22 July 2014, you contacted the complainant on Facebook and sent her a message that read, “Sexy”. The complainant had her school photo, with her school uniform on, as her Facebook profile picture. The complainant did not respond until 28 February 2015. Between 28 February 2015 and 30 July 2015, you and the complainant exchanged approximately 192 messages over Facebook. You communicated with her in a sexually explicit manner. You asked her to sex-chat with you. She refused, saying that she was ten. You said that was not a problem and explained you could communicate through messages and sexy pictures.
7 The text of a number of messages that you sent is set out in the Prosecution Opening. Those messages occurred on various days, with on occasion a very large number of messages being sent on one day. The contents of the messages were sexually explicit. You described what you would like to do with the complainant and suggested meeting up with her. You sent her sexual photos of other females and a photo of your erect penis. This conduct is the grooming conduct that is covered by Charge 1.
8
Charge 2 concerns your conduct between 28 February 2015 and 3 March 2015, when you asked the complainant to send you sexy pictures. You instructed her how to take photographs. When she expressed concern, you explained how she should conceal the pictures from her mother. On 28 February 2015, the complainant sent you a picture of her crotch with her clothes on, with a message. About ten minutes later she sent you a photo of her vagina.
Charge 3 relates to your receipt of the image of the complainant’s vagina.
9
Your offending was detected on 3 March 2015, when the complainant’s mother noticed that the complainant’s Facebook account was open and saw
a communication between you and her daughter. The complainant’s mother and her eldest son attempted to locate you and reported the matter to police on 4 March 2015.
10 Between March and September 2015, police monitored the complainant’s Facebook page. You were arrested and interviewed on 28 September 2015. You admitted that you had been chatting with the complainant. You made a number of admissions and partial admissions. You said that because the complainant looked “little”, you did not want to meet her or do sexual things with her and did not intend to meet her. You said that you had not got into “physical violence or physical sexual intercourse or anything”, and were being punished for media use.
11 You indicated you would plead guilty at a committal mention in January 2016. The prosecution concedes that your plea was an early plea for sentencing purposes.
12 A Victim Impact Statement from the complainant’s mother was tendered as Exhibit B. The complainant’s mother describes the emotional impact on her daughter of your offending. She says that she used to be very outgoing, but is now reluctant to go anywhere without her mother, and has become fearful at home. She no longer uses the internet at home, as her mother is afraid that the same thing will happen again.
13 Exhibit C was a letter tendered from the complainant’s school principal, who says that the complainant’s behaviour changed drastically at the beginning of 2015. Her behaviour included being withdrawn and being aggressive to other children. She said that she felt frightened at times. The school has offered counselling with the school’s educational psychologist.
14 In sentencing you, I have taken into account your personal circumstances, which were outlined by your counsel and in the psychological report of Mr Jeffrey Cummins, dated 8 April 2016, Exhibit 2. You are now 25-years-old. You were born in Pakistan and came to Australia in 2013. You left Pakistan and travelled to Indonesia, before making your way by boat to Christmas Island, where you spent 45 days in immigration detention.
15 You were educated to Year 12 in Pakistan and had some employment as a labourer before leaving for Australia. You are a Shia Muslim and lived in an area of northern Pakistan, which was subject to problems with the Taliban. Your father was killed by the Taliban in 2007. You fled because you were fearful of the Taliban. You were released from Christmas Island on a bridging visa and have not worked or studied since you came to Australia. At the time of your arrest, you were living with your cousin in St Albans. On 14 October 2015, you were taken into immigration detention and transferred to Christmas Island. At the time of the plea hearing, you were in immigration detention at the Maribyrnong Detention Centre.
16 You have no prior criminal offending.
17 Your counsel relied on the conclusions of Mr Cummins, who says that your offending was unlikely to be reflective of any specific sexual deviance, but was likely to be reflective of your psychosexual immaturity and your general immaturity. Mr Cummins says that you had been unable to settle into life in Australia following your very difficult life in Pakistan, with features of trauma in your upbringing and early adulthood. He says as a result you are ill-equipped to deal with adult life and are immature. Mr Cummins is of the opinion that at the time of your offending, you suffered from an adjustment disorder with mixed anxiety and depressed mood. Mr Cummins considers that this condition has worsened as a result of you being arrested and held in immigration detention, and that the current risk of you reoffending is “low–moderate”.
18 In sentencing submissions, your counsel relied on a number of factors, including:
(a)Your plea of guilty;
(b)Your assistance to authorities;
(c)Your lack of prior convictions;
(d)Your youth;
(e)Your prospects of rehabilitation;
(f)The impact on you of the prospect of deportation if you are sentenced to a term of imprisonment of 12 months or more.
19 Your counsel addressed the circumstances of your offending and its seriousness. Your counsel suggested that although your offending was serious, it could be distinguished from more serious examples of the conduct, in that you did not actually meet with the victim or personally know her. In respect of the child pornography offences, your counsel addressed the limited nature of the material you possessed and the overlap between the two charges.
20
Your counsel submitted that whilst your insight into the seriousness of your behaviour was lacking, as reflected in what you had said to the police and to
Mr Cummins, your criminality was not entrenched and you still had prospects of rehabilitation. Your counsel submitted that the principles in R v Mills [1998]
4 VR 235 ought apply, as you are a youthful first offender and that greater weight ought to be given to your rehabilitation than would be the case with an older offender.
21 In sentencing submissions, the prosecutor addressed the seriousness of your offending and submitted that condign punishment was required, due to the calculated and predatory behaviour in which you had engaged in the grooming charged. The prosecutor addressed various aggravating features of your offending. She submitted that your plea did have utilitarian value, but that you had not demonstrated remorse. The prosecutor submitted that your prospects of rehabilitation were concerning and that some weight ought to be given to specific deterrence. She submitted that your rehabilitation could not take primacy over the need for general deterrence.
22 Jalal Hussain, the offending in which you engaged was serious. You knew from the beginning that the complainant in this matter was very young. You persisted and messaged her repeatedly, particularly over a four-day period, with graphic and explicit messages. You tried to get her to trust you and to engage in increasingly sexually explicit conversation and activity. You were very much older than her and took advantage of her young age, friendliness and vulnerability to your grooming activity. You went so far as to get her to send you a picture of her private parts. You did all this despite her reference to her age and her concern about her mother looking at her Facebook. When she expressed any reluctance, you were persistent.
23 It is clear that you have little insight into the kind of harm that this behaviour may cause. That in itself is concerning. It is the experience of the courts that engaging young children in sexual conduct, even if it is via social media with messages and pictures, causes harm to the children and to the fabric of the community. This child was ten. She ought not to have been subject to your sexual fantasies and sexual predations. She was far too young. You ought to have realised this.
24 It is important that I impose a sentence that will deter others from similar offending and from giving way to the temptation to engage in this type of behaviour using social media. General deterrence must be given weight in sentencing you, albeit reduced weight because you are a youthful first offender.
25 The consequences of the complainant’s mother’s discovery of your actions and going to the police have been significant for the complainant and her mother. It is important that people do go to the police about matters such as this, in order to stop further offending, and also in order to make others realise that they cannot engage in this kind of behaviour. It is to be hoped that the complainant will, with time and support, be able to put this offending behind her. It is to be hoped that she will regain her confidence and be able to interact with other people personally and through social media, without being fearful.
26 I have taken a number of matters into account in mitigation of sentence. You are a first offender and this will be your first experience of imprisonment. You are entitled to a discount for your plea of guilty. You partially co-operated with the police initially. That, together with your plea of guilty, indicates your willingness to facilitate the course of justice. I cannot conclude that you are deeply remorseful, but I do note and take into account Mr Cummins’ conclusion that you are deeply embarrassed by your offending.
27 I note that you did stop offending well prior to the police contacting you. During the time the police were monitoring the complainant’s Facebook, you did not send her any further messages.
28 Your limited insight in the matters set out in Mr Cummins’ report suggest that your prospects of rehabilitation are reasonable but limited. Given your age, your rehabilitation must be a significant sentencing consideration. Mr Cummins is of the view that it is imperative that you receive offence specific treatment. That is clearly an important matter, whether you remain in Australia or return to Pakistan.
29 Specific deterrence must also be given some weight in sentencing you. You must understand that if you ever engage in this type of behaviour again, you will be severely punished.
30 It appears that returning to Pakistan would be in some ways positive for you because you miss your mother and brother, but I am sentencing you on the basis that your concern about potential deportation will weigh heavily on you whilst you are in prison.
31 I am satisfied that your adjustment disorder is likely to make imprisonment more difficult for you, as will your immaturity. I have also taken into account that you will be isolated in prison from your family.
32 In sentencing you, I have had regard to the principle of totality. In respect to Charge 3, I have considered the application of ss.6D and 6E of the Sentencing Act 1991. I consider that cumulation in respect of that charge, given the overlap with the subject matter of Charge 2, would offend the principle of totality in this case. I do not consider that a disproportionate sentence is required for the purpose of community protection.
33 I have also taken into account in sentencing you that you have been in immigration detention since 14 October 2015. Immigration detention involves deprivation of liberty. That deprivation of your liberty is directly connected to your arrest on these offences, and accordingly I have taken that period of time into account in setting a lower sentence than I would have otherwise imposed. The fact that you have been and would remain if you were released, in immigration detention with your bridging visa having been cancelled, means that it is not in practice possible for you to undertake a community corrections order. For that reason I have not considered imposing a sentence of imprisonment to be followed by a community correction order, as I would have otherwise.
34 On Charge 1, you are convicted and sentenced to 12 months’ imprisonment.
35 On Charge 2, you are convicted and sentenced to six months’ imprisonment.
36 On Charge 3, you are convicted and sentenced to one months’ imprisonment.
37 The sentence on Charge 1 is the base sentence. Two months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1. The total effective sentence is 14 months’ imprisonment.
38 I fix ten months as the period you are required to serve before being eligible for release on parole.
39 I declare that you have served 31 days of this sentence by way of pre-sentence detention, to be deducted administratively.
40 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 20 months' with a non-parole period of 14 months'.
41 You are sentenced on Charge 3 as a serious sexual offender.
42 You are required to comply with the provisions of the Sex Offenders Registration Act 2004 for life, and you will shortly be given the paperwork in respect to that.
43 I have made orders for the taking of a forensic sample from you and for forfeiture of your phone.
44 I have made the order for the taking of a forensic sample from you because of the seriousness of your offending. The making of the order was not opposed, and I consider it is in the public interest for your DNA to be on record.
45 I am required to inform you that you must co-operate with the authorities when they come to take a sample from you, by way of a saliva swab. If you do not co-operate, the authorities are authorised to use force and to take a blood sample.
46 Please take your seat, Mr Hussain. Mr Pyne, would you be able to go with my associate, Ms Olquist, and ask Mr Hussain to sign the document which indicates that he has received the Sex Offender Registration Act documentation. The interpreter will help you explain, if you could explain that to him? Thank you.
47 MR PYNE: I will do that.
48 HER HONOUR: Thank you. Now, Mr Pyne, Ms Karamicov, is there anything that you can see of a technical nature that I have not addressed or need to address?
49 MS KARAMICOV: No, Your Honour, no.
50 HER HONOUR: Thank you. Mr Pyne?
51 MR PYNE: No, Your Honour.
52 HER HONOUR: Thank you very much for your assistance.
53 MR PYNE: Your Honour, there's one more thing.
54 HER HONOUR: Yes?
55 MR PYNE: I wonder if it's possible for Your Honour to endorse the environment of imprisonment to the effect that the prisoner might be at risk of self-harm? There is a history.
56 HER HONOUR: All right. Yes, we will do that. Thank you. Thank you, very much, Mr Hussain can be taken down now, thank you. Thank you, Mr Hussain. Thank you very much, Mr Wordack, for your assistance. Thank you both for your assistance.
57 MS KARAMICOV: Thank you, Your Honour.
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