Director of Public Prosecutions v Ijaz

[2015] VCC 240

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00182

DIRECTOR OF PUBLIC PROSECUTIONS

v

SYED IJAZ

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2015
DATE OF SENTENCE:	6 March 2015
CASE MAY BE CITED AS:	DPP v Ijaz
MEDIUM NEUTRAL CITATION:	[2015] VCC 240

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Plea – Sentence – Indecent Assault – Prior offending - Serious Sex Offender registration – Corrections assessment as medium risk of reoffending – low level seriousness of offending but high frequency over short period

Legislation Cited:            -
Cases Cited:  -
Sentence:  6 month Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Flynn for the plea Ms B. Bleazby for the sentence	OPP
For the Accused	Mr M. Brennan	Emma Turnbull Lawyers

HER HONOUR: 

1Syed Ijaz, you have pleaded guilty before me to one charge of indecent assault.  This is an offence which carries a maximum penalty of ten years' imprisonment. 

2I proceed to sentence you on the basis of the prosecution opening, which was read out in court and which is Exhibit A.  In brief, the circumstances are that you were engaging in sexual activity with a sex worker and, in the course of that, the sex worker indicated that she did not want you to do a particular thing.  You proceeded to kiss her on the side of the neck, whilst you were straddling her and you were both naked. That is the indecent assault.

3Any sexual offending against another person, that is committing a sexual act without their consent, is serious.  That has been conceded on your behalf.  One of the matters that makes your offence more serious is that at the time you committed that offence in May 2013 you were on probation from New South Wales for a period of two years for committing acts of indecency in that State.  I will return to that in a moment. 

4I received a victim impact statement, which is Exhibit B, and that was read aloud in court by the prosecutor.  I have taken the contents of that into account in determining the appropriate sentence.  Whilst this was sexual activity that started out as consensual, it did not end that way and I accept that the sex worker has suffered considerably as a result of your actions.

5On your behalf there were pointed out a number of mitigating factors.  The first of these is that you have pleaded guilty.  You are entitled to have that fact taken into account in your favour and I do so.  Because of your plea, the community has been spared the time and cost of a trial.  Also the victim of your offence has been spared the ordeal of giving evidence upon your trial.  She was required to give evidence at the committal, which was contested at that time in respect of the more serious offence of rape, as well as the charge of indecent assault.

6Immediately after that committal you, through your lawyers, proposed to plead guilty to the charge of indecent assault and that is the way the matter has proceeded.  So I take into account that you indicated your intention to plead guilty at the soonest possible time after the committal to the charge on which you are to be sentenced.  As a result of those matters, I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial.  I also accept that your plea of guilty indicates a degree of remorse for your actions.

7You are now aged 32 and you were aged about 30 at the time of the offence.  Your counsel told me something of your personal history.  You were born in Pakistan, where you grew up with an older brother and a younger sister.  It was considered to be quite a privileged upbringing, as your father was a real estate agent.  Both of your siblings and you have undertaken tertiary study.  You went to the USA to do this and obtained a degree in computer science.  You worked in the United States and there met your future wife.

8You lost your employment and as a result had an issue with continuing to work in the United States, and so in 2009 you returned to Pakistan and then came to Australia.  Your future wife travelled from the United States and met you here in Australia.  You began studying a masters degree with support from your father, but that only continued for a few months.  For some reason since then you have had no stable employment or study, although you have worked periodically. 

9In late 2009 you married the woman that you had met in the United States and together you have a son who is now aged six.  You separated from your wife in 2011.  There was ongoing contact for a couple of years, but since you were imprisoned in Queensland, which I will come to in a moment, there has been no further contact.  In 2014 you were divorced.

10You are a permanent resident of Australia and, whilst you have been here, you have lived and worked in New South Wales, Queensland and Victoria, as well as spending some shorter time in Western Australia.  After this offence was committed, you travelled to Queensland and, in August 2013, you were remanded in custody in Queensland on various charges.  The following month, September 2013, you were sentenced to 18 months' imprisonment with a parole release date of 22 December 2014.  The sentence involved offences including burglary and thefts but also assaults and an offence described as “observations or recordings in breach of privacy, genital or anal region.”  I was told by your counsel that that involved the taking of video in a public place of a female or females, of their breast region.

11The Victorian police were aware that you were in custody in Queensland, but you were released on parole by the Queensland authorities in December 2013. You were returned to custody in Queensland in March 2014 upon the Queensland Parole Board becoming aware of the Victorian charge, or charges as they were at that time, the subject of the offending for which I am sentencing you.  In June 2014 you were interviewed by the Victorian police whilst you remained in Queensland custody, and in September 2014 parole was granted for the purpose of you being extradited to Victoria.  That took place and you were remanded in custody here.

12The committal took place in February this year and, as I have indicated, the offer to plead guilty to the charge of indecent assault was made and accepted very shortly thereafter.  Your plea hearing proceeded yesterday, 5 March, at a point at which you had spent 160 days in custody on this charge.  It was pointed out to me, that you had spent considerable time in custody in Queensland when, if the charge had been proceeded with earlier, you might have been able to receive at least partial concurrency of those terms.

13You have admitted to a criminal record apart from the matters that I have referred to.  Since arriving in Australia in 2009, you have been in trouble from 2010 for driving offences; assault, both sexual assaults and common assaults; and the dishonesty offences that I referred to previously.  The sentence for which you received probation was in the Local Court in New South Wales.  On 8 June 2012 you received a two-year bond with supervision for a charge of common assault.  That was to include alcohol and drug counselling and sex offending counselling.  It is not known by the court whether you in fact received any of that counselling.  At the same time and same date, you were convicted of two assaults with acts of indecency and imprisoned for three months.  I am told that that involved you being drunk in a pub and grabbing the bottom of a stranger on two occasions. 

14Since the offending against the sex worker in May 2013, you have also committed the offences in Queensland which I have referred to, including the taking of the video of a woman in her breast region, and in New South Wales, driving-related offences but also wilful exposure, which I am told involved urinating on a train.  That might not be considered as a sexual offence, but it still is an offence involving exposure of your penis, and your criminal record, whilst not the most serious, indicates to me that you do have a problem when it comes to the way that you conduct yourself in public and in particular with people of the female gender.

15You have now committed three offences involving women:  the taking of the video, as I have indicated; the grabbing of the bottom of a stranger; and the indecent assault against the sex worker.  You have been in prison and that may have served to deter you from committing this sort of offence in the future, but my concern is to protect the community from you and I consider that there is a risk of you re-offending in a similar way unless you change your behaviour.  You are a person who has a tertiary education, so there is no question that you are able to learn, so it is my hope that you will learn from your experiences through the justice system and, as I say, change your ways. 

16You were assessed for a community correction order and, as part of that assessment, your general risk of re-offending was assessed as being a medium risk.  It is my view that you are a risk of re-offending, but I cannot say for sure whether it would be offending of dishonesty or some other driving offence or whether it would be a sexual offence; my concern is, however, that there is a risk of you re-offending.  Given that you are, as I say, an educated man, there are prospects for your rehabilitation, and so that is to be promoted if you take advantage of the opportunity that you will be given.

17Because you have committed previous sexual offences for which you were imprisoned, you are to be declared a serious sexual offender if you are sentenced to imprisonment for this charge that I am sentencing you for today.  In that event I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed and I am empowered if necessary to impose a sentence greater than is proportionate in order to achieve that purpose.  I do not propose to do that in this case because the prosecution have not sought that there be a disproportionate sentence and because I have considered that the sentencing option that has been submitted by your counsel is an appropriate and proportionate sentence.

18As well as those matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence.  General deterrence means that, by my sentence of you, I must seek to deter other men from committing a similar offence to that which you committed against the sex worker.  I also must deter you from offending in a similar way in future by my sentence of you today.  General deterrence is of considerable importance in a case involving a sexual offence against another person.  Specific deterrence - that is deterrence of you - is also of importance.  As I have indicated, I have concerns for your risk of re-offending as a result of your offences in the past of a sexual  nature. 

19I should say, as I think I have already said but I will make clear, that the offending in this instance is at the lower end of the scale and each of the other sexual offences you have committed are to be considered at the lower end of the scale on the basis of what I have been told; however, the fact that there have been three of them in a relatively short space of years leads me to the concern that I have for both your risk of re-offending and the need to protect the community from you.

20There has been a delay in this matter coming to court here because of the fact that you were in custody in Queensland.  I take that into account, and the fact that you have served that time in Queensland when, if it had been possible to deal with the matter more expeditiously, there may have been a degree of concurrency between your sentences.

21As I indicated, you were assessed for a community correction order and you were found to be suitable for such an order.  It was recommended that the order contain two conditions:  one, that you be supervised during the course of that order; and two, that you attend programs designed to reduce the likelihood of you re-offending.  The order that I propose to make today is that which I indicated yesterday in court, which is to sentence you to the time that you have already served in prison and then to sentence you on release to a six months community correction order.  I will be ordering supervision as a condition and I will also be making it a condition that you undertake offending behaviour programs.

22Six months is not a very long time to undertake a program, but I direct that you do whatever program the Community Corrections Office deems is appropriate for you to reduce the likelihood of you re-offending such that can be done within that time, but I consider any sentence longer than that, combined with the period of time you have already served in custody, would be out of proportion to the offence that I am sentencing you for today. 

23You had explained to you yesterday, Mr Ijaz, via the community correction assessment person, the conditions that are attached to every order, but I just want to make it clear that you understand what this involves. 

24As I have said, the order will be commencing today, as you will have already served the sentence that I am imposing.  You will need to report to Broadmeadows Community Correctional Services, and the address will be on the document that I am providing you with after it has been signed, by 4 pm on 11 March.  So that is next Wednesday. 

25The terms that apply to all community correction orders are that you must not commit another offence for which you may be imprisoned during the time of the order being in force, which is the next six months; you must comply with any obligation or requirement as directed by the Community Correction officer who will be in charge of your case; you must report to and receive visits from the Secretary to the Department of Justice or their delegate, which will be the Community Correction officer; you must let the Community Correction officer know within two clear working days if you change your address.  So you are currently, as of last night, residing with your friend at Bindi Street in Glenroy; if you wish to change that address, you must let them know within two days of doing that.  Also if you obtain employment or change that employment, let the officer know within two days of doing that; you cannot leave Victoria without getting permission in writing from the Secretary to the Department of Justice or their delegate and you must obey all lawful instructions and directions through the Community Correction Office during the course of the order. 

26They are the mandatory, compulsory conditions, but the extra conditions I am putting on that are that you be under supervision, which means attending as required at the Community Correction Office, and also that you undertake any programs or courses to address the likelihood of you re-offending, as you are required to do, within that period of six months.

27If you do not comply with all of these conditions, you will be in breach of the community correction order and that means three things.  First of all, that is an offence in itself and you will be proceeded against for failing to comply with the order, which carries penalties; secondly, you will be brought back before me to be resentenced on this charge and the possibility is that you may be sentenced to a further term or imprisonment.  The third thing that happens is that there are other options that may be undertaken if you are in breach, but the most important thing is that you will be back before this court.

28If you wish to vary any of the conditions of this order - that is to say, not the compulsory ones but the others - then you should get legal advice.  You may apply to the court for a condition to be varied.

29If you could stand up, please, Mr Ijaz.  Do you agree to undertaking this community correction order with these conditions for the next six months?

30OFFENDER:  Yes, Your Honour.

31HER HONOUR:  All right.  Thank you very much.  Well, the sentence of the court therefore is that on the charge of indecent assault you are convicted and sentenced to 170 days' imprisonment, and to be released following that imprisonment on a community correction order for six months starting today.  I declare that you have served 170 days of pre-sentence detention and that is to be deducted administratively from your sentence.  I have indicated that the community correction order contains the compulsory conditions that every order has plus the conditions of supervision and undertaking any offending behaviour program as directed.

32I declare that you are sentenced as a serious sex offender and that is to be noted on the court record. 

33I have made an order for disposal of items involved in the commission of the offence and those orders have been signed. 

34If you had not pleaded guilty but had been found guilty after a trial, then the sentence I would have imposed on you today would have been a sentence of imprisonment of 12 months with a period of six months' imprisonment to serve.

35Just take a seat, Mr Ijaz, and we will have the documents printed out for signing.

36Are there any other orders, Mr Brennan, Ms Bleazby?

37MS BLEAZBY:  No, Your Honour.

38HER HONOUR:  Thank you.

39MR BRENNAN:  No, Your Honour.

40HER HONOUR:  I will just have the disposal order stamped and provided.  Mr Ijaz, I will just have my associate come up and ask you to sign, where indicated, if you understand and agree to the conditions of this order and consent to it being made.  Could I just check that so far as custody is concerned that this man should have served his sentence and he was released on bail, so it would not be necessary for him to go back into custody?  Yes, thank you.  You can be released from the dock, Mr Ijaz.  Thank you.  Just come and stand behind Mr Brennan.

41So I have signed that order as well, Mr Ijaz.  A copy of that will be made available to you before you leave today, and so the important thing is that you need to go to the address on that by 4 pm next Wednesday.

42OFFENDER:  Yes, Your Honour.

43HER HONOUR:  All right.  Do you have any questions?

44OFFENDER:  No, Your Honour.

45HER HONOUR:  So the important thing is that you complete that successfully and then I will not be seeing you again; if you do not complete it successfully, then we will see you back in court and you will be dealt with further.

46OFFENDER:  Yes, Your Honour.

47HER HONOUR:  Yes, you can take a seat.  Yes, thank you.  We will adjourn the court then until 9 o'clock on Tuesday.

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