Director of Public Prosecutions v Jaffari
[2014] VCC 1449
•20 August 2014
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| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. AP-13-2264
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALI JAFFARI |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 August 2014 | |
DATE OF SENTENCE: | 20 August 2014 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2014 VCC 1449 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N.C. Burnett | OPP |
| For the Accused | Mr R.W. Backwell | VLA |
HER HONOUR:
1 An application has been brought by Corrections Victoria pursuant to s.48M of the Sentencing Act for this court to deal again with an order made on 20 February 2014 at the Geelong County Court. On that day, Mr Jaffari was found guilty and sentenced to a two-year community correction order with conditions that he undergo assessment and treatment for mental health issues, the sex offenders program and also perform 300 hours of unpaid community work.
2 He was convicted in respect of six charges of indecent act with a child under 16. I will return to those offences in a moment. The application has been brought because it is put, and conceded on behalf of Mr Jaffari, that his circumstances have materially altered and as a result he is no longer able to comply with the community correction order.
3 His circumstances have altered because as a result of an admission by him (made during an appointment with a Corrections Officer) in respect of access to child pornography material, he was investigated and subsequently charged. That charge was brought on 15 May this year. On the following day, his protection visa was cancelled and, on 20 May, he was bailed from custody where he had been held on the child pornography charge or charges to the Maribyrnong Detention Centre as a result of the cancellation of his protection visa. Because he is in detention, he is not able to comply with his community correction order.
4 Further information was provided to me during the course of this morning’s hearing. The statement of reasons for the cancellation of the visa by the Minister for Immigration, Mr Scott Morrison, was provided to me. I was also told that there has been an extension of time to 28 September for Mr Jaffari to respond to the Minister’s decision to cancel the visa in respect of the finding that he did not meet the character test. The second part of the test that the Minister had to be satisfied about and was satisfied about was that it was in the national interest to cancel the visa. The possibility is that Mr Jaffari will remain in detention indefinitely as a result of the decision to cancel his visa because it is recognised by the Minister that he is still a refugee and resettlement is not an option. So unless the cancellation is revoked, it is likely that he will remain in detention for the foreseeable future.
5 As a result, I am satisfied that Mr Jaffari’s circumstances have materially altered and that he is not able to comply with the community correction order imposed on 20 February 2014. Section 48M of the Sentencing Act in sub-s.(2) provides the ways in which the court may decide to deal with the order once satisfied that the circumstances have altered in the way that I have explained.
6 On behalf of the prosecution, it was submitted that I should not go down the scale, as it were, in terms of other sentencing options. The recommendation in the report I received from community corrections is the cancellation of the order and a resentencing. On behalf of Mr Jaffari, it was submitted, and in fact conceded by the prosecutor, that this was a difficult sentencing task and the circumstances may indeed be unique.
7 Because of Mr Jaffari’s detention, he is not able to participate in any rehabilitation process that might be put in place through an order made by me, conducted by community corrections. On the other hand, he is still amenable to the jurisdiction of the State of Victoria and can come to the attention of Victoria Police.
8 It was submitted on behalf of Mr Jaffari that I should take into account the situation of his likely indefinite detention as well as the disproportionate media attention state-wide in print media and nation-wide in televised media, as well as a documented threat made to him in detention as a result of it becoming well known that he had been convicted of sexual offences against children, that I should consider these as extra-curial punishment.
9 It was submitted that it was his own admission of the conduct that led to his current situation, as a result of a charge being laid. I should add that that charge will be dealt with by way of a plea of guilty in this court on 10 October 2014. Mr Backwell, on behalf of Mr Jaffari, submitted that potentially his self report of the access to child pornography may show a development of insight.
10 On the other hand, the report received from Community Corrections shows that his insight was not present during the course of discussion with him and it is to be noted that he still maintains that he is not guilty of the offences of which he was convicted on appeal in this court from the Magistrates’ Court. He also refused to deal with the psychological treatment aspect of his order and was assessed at a high risk of reoffending.
11 In resentencing, I also need to look at the degree of compliance overall and apart from the matters to which I have just referred, I accept that there were no absences that were deemed to be unacceptable during the course of the time that he was on the order, approximately three months, and that he did complete 21 hours of the unpaid community work which was discontinued not because of any refusal by him to do the work but because of the risk to his safety as a result of the attention that he had received in the media and threats by the public through social media
12 In resentencing, it is necessary to have regard to the original charges. On 30 November 2012, at the Eastern Beach Swimming Pool in Geelong, Mr Jaffari offended against two boys under the age of 16. In respect of one boy, there were five charges: charge 1, rubbing or trying to rub his penis against that boy; and charge 3, kissing that boy on the shoulder; charge 4, at the same time as kissing him on the shoulder, trying to grab him on the bottom; charge 9, trying to touch that boy’s penis; and charge 10, out of the pool and in the showers, Mr Jaffari grabbed that boy and tried to kiss him having joined him in the shower cubicle.
13 Charge 6 in respect of the second boy who was at the pool with his friend – the first victim – is that whilst in the pool, that victim was grabbed and cuddled by Mr Jaffari.
14 In resentencing him, I have to have regard to the fact that he is to be treated by me as a first offender. The charge which he faces in this court on 10 October relates to a time period between 28 July 2012 and 17 February 2014. It is not a prior conviction for the offending for which I am dealing with Mr Jaffari, and it is not an offence committed in breach of his community correction order.
15 However, it is to be noted that the offending for which I am dealing with him against those two boys was in the same period of time. It is also to be noted that there is nothing alleged against Mr Jaffari since 17 February 2014.
16 The prosecutor submitted that the charges would ordinarily require imprisonment. Clearly, I was satisfied on 20 February this year that I did have an alternative to imprisonment and therefore imposed the community correction order. These matters are serious, involving sustained sexual acts against one child, and, at the same time, offending against another. But they were confined to the one day, over the period of – if memory serves me correctly – about an hour.
17 Ultimately, having had regard to all of those matters, I am satisfied that a term of imprisonment is the only alternative in the unique circumstances of this case. However, I propose to wholly suspend the sentence that I will impose, because I am to treat Mr Jaffari as a first offender for these charges, and because there has been some compliance with the community correction order, particularly the punitive aspect of unpaid work. The sentence is to be suspended also because of the difficult personal circumstances of Mr Jaffari.
18 Before I turn to the formal order, I just wish to note that, once again, people ignorant of the way the criminal justice system seeks to protect the community in the future by encouraging rehabilitation, if possible, in combination with an element of punishment, have, by their vitriolic comments, at least in part, contributed to a situation where both rehabilitation and punishment had to be discontinued.
19 So I will make the formal order in a moment, but Mr Jaffari, if you would stand up, please. I am going to resentence you on the charges for which you were found guilty in February this year by me. Do you understand that?
20 ACCUSED: Yes.
21 HER HONOUR: The resentencing will involve me imposing or giving you a term of jail, but I’m going to not require you to go to jail. I’m going to suspend that term of imprisonment. Do you understand that?
22 ACCUSED: Yes.
23 HER HONOUR: That term of imprisonment will be suspended for a period of time from today. During that period of time you must not commit another offence which is punishable by going to prison, or you will breach – that is, you will break the condition of the suspended sentence. Do you understand that?
24 ACCUSED: Yes. I understand.
25 HER HONOUR: All right. So you must stay out of trouble, in other words, for the period of time that I will announce in a moment, otherwise, you will come back before me and have to do the jail time.
26 ACCUSED: I will comply, Your Honour.
27 HER HONOUR: All right. Thank you very much. Do you have any questions about that, before I announce the formal order?
28 ACCUSED: I have a lot of problem – questions. If you give me permission, I will put some submission about my behalf – why there’s - - -
29 HER HONOUR: All right. Well, Mr Backwell has put submissions on your behalf. I will announce the order and, if you don’t understand that, then we will see if there’s something I can assist with. So just take a seat then, for the moment.
30 So the order of the court is the community correction order of 20 February 2014 is cancelled, and the offender is sentenced as follows: on all charges, to an aggregate sentence of three months’ imprisonment.
31 I direct that the whole of that sentence be suspended for six months from today, and all other orders remain in place, which includes a sex offender’s registration order for 15 years.
32 So, Mr Jaffari, if you could stand up again, please. The term of imprisonment on all charges is three months. You do not have to go to jail today. That is suspended for six months. If you stay out of trouble for that six months, then you will not do any jail time. If you are charged with something in that time, which can be punished by imprisonment, then you will come back before me and I will almost certainly order that you serve the three months in prison.
33 Do you understand that? All right. Just on that sentence, do you have any questions? Anything you want to ask me about that sentence? Three months, suspended for six months.
34 ACCUSED: Will you rule for my future (indistinct)
35 HER HONOUR: Well, I don’t know, because, first of all, you have another charge coming up in October, and that will be another judge dealing with that and I don’t know what the outcome of that will be. And, secondly, I don’t know what the outcome will be of your immigration situation, because that’s not something that I can deal with. So, as to your future, all I can say is that for these charges you are on a suspended sentence of three months’ imprisonment for the next six months.
36 ACCUSED: So now am I going to?
37 HER HONOUR: You will stay at the Maribyrnong Detention Centre. You will not be going to jail.
38 ACCUSED: OK.
39 HER HONOUR: Unless you get into trouble again.
40 ACCUSED: OK.
41 HER HONOUR: All right. Thank you. Take a seat. Any further order required?
42 MR BACKWELL: No, Your Honour.
43 MS BURNETT: No, Your Honour.
44 HER HONOUR: All right. Well, I thank counsel for their assistance, and other people who have been involved in this matter, and I will stand down, now, whilst the trial is brought on.
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