Director of Public Prosecutions v Jamali
[2022] VCC 1285
•8 August 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-01664
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MORTEZA JAMALI |
---
JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2022 | |
DATE OF SENTENCE: | 8 August 2022 | |
CASE MAY BE CITED AS: | DPP v Jamali | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1285 | |
REASONS FOR SENTENCE
---
Subject:Use carriage service to transmit child abuse materials (‘CAM’); Possess or control CAM using a carriage service; Take into account; Use carriage service to solicit CAM; 32 years of age at time of offending; 34 years of age at sentence; No criminal history; Early plea; Worboyes v The Queen [2021] VSCA 169; COVID-19; Contrition; Risk of deportation
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms Z Hough | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr D Care | James Dowsley & Associates |
HIS HONOUR:
1Morteza Jamali, earlier today you pleaded guilty to one charge of using a carriage service to transmit child abuse material, one charge of possession of such material and you have asked the court to take into account a charge of soliciting such material.
2The maximum penalty in relation to the two charges to which you have pleaded guilty is 15 years' imprisonment.
3You have no criminal history at all.
4You are 35 years of age now but, of course, you were younger at the time, as the conduct took place on three dates over the course of 2020. I am actually sentencing you only for two of those dates, of course, and taking into account the conduct on the third date.
5The prosecutor Ms Hough opened this matter to me earlier today in accordance with a written summary dated 5 August 2022. Your counsel Mr Care told the court that it was an agreed opening and so that document was marked as Exhibit A on the plea.
6I see no great need to set out the full sentencing facts in these my reasons. I will sentence in accordance with that agreed document.
7Th facts are pretty simple.
Facts
8Very briefly stated, on one date in February 2020, you transmitted a child abuse video to another by way of Facebook messenger. This was a Category 4 video depicting a prepubescent girl engaging in a sexual act with an adult male. That is the conduct the subject of Charge 1.
9On your arrest date in September 2020, you possessed on your iPhone child abuse material, being the same Category 4 video I have described in relation to the transmission charge, as well as one Category 2 image depicting a prepubescent child engaged in a solo act. The matter I have been asked to take into account occurred in June and had you make a request of someone in a WhatsApp group of which you were a member. That person had downloaded child abuse material and you asked them to send you the material.
10I am then dealing with a very small amount of child abuse material on a very confined basis.
11You cooperated with the police and you gave your personal identification number of your phone to them.
12On both the arrest date and later in September, when interviewed, you declined to comment, as was your right.
13You pleaded guilty at the third committal mention on 6 August of last year and you were committed to this court for a plea to be heard in February of this year. That plea date was vacated on your application to obtain psychological material and the case was adjourned to today's date, being 8 August.
14I sentence then in accordance with the more detailed summary that is marked as Exhibit A.
In Mitigation
15Mr Care has conducted the plea on your behalf earlier this morning.
16
He relied upon a written outline dated 4 August 2022 which was marked as
Exhibit 1. There is also a report from Mr Guy Coffey a clinical psychologist, as well as a report from Mr Burrows detailing your engagement and progress in sex offender treatment. Those reports were marked as Exhibit 2.
17I was informed of your family background, as well as your educational and work history. Mr Care made submissions as to the relative seriousness of the offences and the relevant sentencing purposes that came into play in this case. He made submissions as to your prospects of rehabilitation and, of course, he was relying upon the strong efforts you have made since being arrested, in particular, the treatment spoken of by Mr Burrows.
18He relied upon the following matters in mitigation:
· Your co-operation with the police;
· Your early guilty plea in the midst of the global pandemic;
· The presence of contrition;
· Your engagement in the treatment that I have referred to;
· The delay in this matter being finalised;
· The risk of deportation in this case, irrespective of the actual sentencing outcome.
19Though he was not conceding that prison was warranted here, he endorsed the view that there would be a COVID-19 increase in the burden of imprisonment should prison be your ultimate fate. I say here and now, it will not be. I will not be sending you to prison today.
20As to sentence, his primary submission was that the court should deal with you by way of what is described as a without conviction discharge onto a recognisance pursuant to s19B of the Crimes Act 1914 (Cth) (“the Act”). I will refer to that as a bond without conviction.
21He argued that it would be open here to avoid a prison term, either by such a disposition as that or by way of a bond with conviction under s20(1)(a) of the Act or even a Community Corrections Order. Finally, if the court was of the view that prison was required, by a prison sentence with your immediate release onto a Recognizance Release Order.
22That style of immediate release onto a Recognizance Release Order would require a finding as to exceptional circumstances and that is as a result of some 2020 amendments to the Act which apply to Charge 2 but not Charge 1, given the commencement date of that legislation.
Prosecution
23The prosecution filed a brief written outline of submissions dated 8 August. That was marked as Exhibit B. I see no need to set out in these reasons the various submissions within that document. That document, as these Commonwealth sentencing submissions often do, went to some of the firmly established principles derived from a variety of cases, a few of which are actually referred to in the footnotes within the document. These principles really are not in dispute as between the parties. In fact, nor is the actual outcome in this case, with both sides submitting that prison could actually be avoided here. The Crown submitted, however, that a conviction should be recorded and that a s19B bond without conviction was not an appropriate disposition, given the nature of the offending and the paramountcy of general deterrence. They argued that, in no way could the offending be described as trivial. Instead, the prosecution submitted that it would be open to convict you and release you onto a s20(1)(a) good behaviour recognisance or bond.
24The prosecution had also provided a very brief table of three cases with some similarities. That was marked as Exhibit C.
25I am not bound by any submissions made by either side as to the actual sentence to be imposed. I have to pay appropriate regard to all the submissions placed before me.
26I must form my own view as to the appropriate sentence.
27Before dealing with these various matters, I want to turn to your background.
Background
28The details of your background are set out in much detail in the report of Mr Coffey and also in the written outline that has been prepared by Mr Care. I have no reason not to accept what I have been told of your family and personal background.
29For that reason, I will provide only a very brief sketch or summary of that background. You were born in April 1987. You are now 35 years of age. I note there is an error as to your date of birth in the shorter report.
30You were the eldest of three children. You were born in Kabul and as a result of that, you experienced much instability and lack of security in the course of your early life. You saw life before and after the Taliban. You were from an ethnic minority. Like so many from that region, you saw things you obviously never should have seen. Your schooling was interrupted as well. Despite that though, you completed your schooling. You worked full-time at a money exchange business in Kabul and remained living with your father. Your father died when you were 22 years of age. You did some work for a US construction company and that came back to haunt you later on and exposed you to a heightened risk of retaliation. Family members began to explore options to leave the country. Your brother went to Europe in 2010 and your sister applied for a spousal visa at one point and she is now also a resident in Australia.
31You chose to come to Australia with your mother in different circumstances and that involved the precarious journey described in the report at paragraph 23-24. Your boat was intercepted by the Australian Navy and that, in fact, was a stroke of very good luck.
32You were held in immigration detention and then pretty swiftly released to live out in the community in Adelaide. This was in 2013, as I understand it. In due course, you moved to Melbourne and you have lived and worked here since. You have become involved in the local Afghan community and work as a painter. You live with your sister and her husband and also your mother. None of them know of the offending. Indeed, no-one else does, other than your partner. You are ashamed of your family learning.
33You have had no issues with drugs or any problematic issues with alcohol. Despite the traumas that, no doubt, would have arisen in your early background, they have not resulted in any mental disorder or any psychological instability.
34You have no criminal history at all. I take into account your background as far as I am able to.
35
Since the offending, you have engaged in many sessions with Mr Burrows,
13 sessions in all with a developing insight. His report is very encouraging. So actually is the report from the clinical psychologist Mr Coffey.
36Let me then turn then to the matters in mitigation.
Guilty plea
37Firstly, I turn to your guilty plea.
38You have pleaded guilty at what I will treat as the earliest opportunity.
39You have taken this earliest responsibility for your offending. It is an indicator of contrition. There is a utilitarian benefit in pleading guilty. Witnesses have not been required to attend to give evidence at court. The community has been saved the time, the cost and all of the effort that would be associated with the conduct of a committal hearing in the Magistrates' Court or for that matter, a trial up in this court. You were also co-operative with the Australian Federal Police, providing the relevant PIN number to your phone. It is not a matter of aggravation that you chose to no comment. That, after all, was your right.
40I must reward you for facilitating the course of justice.
41There is also a heightened value for a guilty plea in the midst of the global pandemic for many reasons mentioned in the decision of Worboyes.[1] Your case is not part of the very large backlog that has been created amidst the global pandemic. It really never was. A guilty plea is especially valuable in such a setting as this.
[1]Worboyes v The Queen [2021] VSCA 169
42You have had some misgivings about losing your phone but there is an application for it to be forfeited and that application is now not opposed. I take that into account as well.
Contrition/Remorse
43I move then to the aspect of contrition or remorse, the terms are used interchangeably. Your counsel argues you are remorseful (see paragraph 5.2).
44A guilty plea is often indicative of some contrition or remorse. Well, I have your provision of the relevant PIN on the day of the arrest. I have your engagement in the sex offender treatment. I have that early plea. I have the opinions of Mr Burrows and Mr Coffey on this topic as well. The prosecution accepts there is genuine contrition in this case.
45I am prepared in the circumstances to find the existence of genuine contrition or remorse on your part in this case and I take that into account in your favour.
Rehabilitation
46I turn now to consider your prospects of rehabilitation.
47Again, I have your early guilty plea. So, an early acceptance of wrongdoing. I have genuine contrition that I have spoken of recently. I have the complete absence of any prior criminal behaviour. I have a person who otherwise is a valuable member of the community. You have had no problems in holding down a job, you have stable family relationships and the absence of features that would typically impede a person's rehabilitation, such as drug addiction or serious mental health issues. From the two reports, there is no suggestion that you are a paedophile. I have a very small amount of child abuse material in this case and a person who has engaged in significant treatment already with sizeable gains and an increasing insight about the problematic nature of this sort of material.
48The Crown accept the importance of the treatment you have which, no doubt, in part, explains their sentencing submission made in this case.
49I am impressed by those two reports. You have made large gains in the significant period since your arrest back in 2020.
50I believe that you have very good prospects of rehabilitation and a very low risk of reoffending in this way into the future.
The two expert reports
51I have mentioned already the reports of Mr Burrows and Mr Coffey. Mr Coffey's report is lengthy. I see no need to set out matters within either of those reports actually, or even the conclusions. As I hope I have made plain when dealing a moment ago with your rehabilitation, these reports are very useful indeed in that regard.
52They are not relied upon as in any way enlivening any of the principles from the well-known decision of Verdins.[2]
[2]R v Verdins [2007] VSCA 102; 16 VR 269; 169 A Crim R 581 (“Verdins”)
53Whilst you may have understated some aspects of your interest in adult pornography to Mr Coffey, and he comments on that fact, there is no suggestion from the reports that you are a paedophile or have any actual sexual interest in children. The reports address some of the reasons why you came to engage in this conduct. Now, whilst I am not allowed to take into account cultural aspects in excusing or lessening the seriousness of the offending as a result of s16A(2A) of the Crimes Act, those views have been successfully challenged in treatment and, of course, that is relevant to your rehabilitation.
54The reports deal with the treatment that you have had and the gains that you have made, with a much better insight now into the damage caused by child abuse material. The treatment has been very useful indeed. The steps you have taken are far greater than is often seen at the time of a plea undertaken in this court. I am encouraged by them and also by the low risk assessment.
COVID-19: Increased burden
55Your counsel had not made any separate written submissions as to the impact of COVID-19 in the event that you were to be imprisoned and, of course, that was perfectly understandable as he was arguing that immediate prison was not even warranted in this case.
56There is no doubt that the COVID-19 virus and the response to it by those who run the prisons has increased the burden of prisoners. Prison has been a more stressful environment for prisoners, whether held under sentence or on remand. Social distancing has not been easy. There has been worry about catching the virus in such a setting. Unlike someone in the community, there is no level of autonomy at all. There have been no visits and also limited courses for a very large portion of the global pandemic.
57Of course, you have not been in prison. You have experienced none of these issues to date.
58As to what lies ahead on the pandemic front for prisoners, it is really impossible for anyone to know and I am not free to guess. The impacts of the virus upon prisoners has been lessening. Visits re-commenced in March. We are clearly not beyond the reach of the virus. There will be lockdowns and quarantines from time to time. It will undoubtably continue to bring about a level of uncertainty in the minds of prisoners. It will, no doubt, add to their prison burden. Well, I have regard to that present reality when considering the prospect of sending you, a first offender, to prison for the first time.
Delay
59There is not an enormous amount in the delay point that has been raised by your counsel. The delay here is not inordinate and the last significant portion has been driven by an adjournment application made on your behalf in February of this year. Prior to that there had been some delays occasioned by the e-Crime analysis and, of course, I do not ignore that fact.
60But this is not the sort of delay calling for some censure by the court. The delay is perfectly explicable. That is not to say that it has been easy to have the matter over your head, off course it has not. You have continued to behave yourself and so the passage of time and the impact of it and your continuing to remain offence free, is a matter going into the mix in terms of my favourable views as to your prospects. Delay is not the powerful factor that it sometimes is but I take into account, in the two manners here as your counsel suggests I should at paragraph 5.7. It has had an effect upon you and, of course, you have not put a foot wrong since. In fact, the treatment that you have engaged in in the course of the delay is critical to my ultimate task.
Deportation
61I turn now then to the risk of deportation. Undoubtedly, there is that risk here. There are automatic visa cancellation provisions which are engaged when a sentence of greater than 12 months imprisonment is imposed. That will not be the issue here. I was informed that there is an automatic provision as to visa cancellation, given the nature of the charges, whatever the sentencing outcome. I expressed my doubts about that when I considered the text of the actual legislation and I believe your counsel ultimately accepted that his interpretation was probably incorrect. But I do not want to get too caught up in the legislation and how it is to be interpreted. It is reasonable to proceed on the assumption that your visa will at least be looked at again or reconsidered. Maybe it will be cancelled. If it is, you would have the opportunity to ask for reconsideration of that decision and, dependent upon who makes that decision, should it go against you, there might even then be the ability to take it further before either a court or a tribunal. It is difficult for me to make any prediction as to how these matters would play out. That is rather the point your counsel is making. There is a state of real uncertainly in your mind and it is not easy. There is just no question that you would have been feeling and would continue to feel great anxiety about this issue and the real prospect of losing the opportunity of settling permanently in this country and winding up, really, who knows where. These are matters I am entitled to take into account in mitigation and I do so in the way urged upon me by Mr Care in his ultimate oral submission on this topic.
Principles
62I turn then to some of the general principles which I must have regard to in passing sentence, many of which are referred to in the brief prosecution written submissions.
63Those sentencing submissions cite a few of the cases from which those principles have been distilled. There are many more than I am awake to.
64I have looked at the three comparable cases that I have been referred to that are marked as Exhibit C.
65What I have to do, of course, is pass an appropriate sentence in your case and there are no two cases that are ever the same.
66Consistency of sentencing is of course an important consideration.
67As is clear from the Crown's written submissions, there have been decisions in our Court of Appeal in this State dealing with the seriousness of this sort of crime and the relevant sentencing principles at play.
68Courts, not just in this State, but also in New South Wales and Western Australia and other States, have spoken frequently of the "need" for an immediate prison term, other than in cases where exceptional circumstances are found to exist.
69The prosecution written submissions set out some of those propositions from a case of Garside[3] and the way in which these sorts of crimes are to be assessed.
[3]DPP (Cth) v Garside [2016] VSCA 74
70As to general statements in some of the case law about what might 'ordinarily be expected' by way of sentence or the need for 'exceptional circumstances' to avoid that outcome, well, one has to be very careful about that sort of statement. There is no general exceptional circumstances test set out in the Crimes Act 1914 (Cth) itself nor should I treat those sorts of statements from courts, whether in this State or elsewhere around the country, as importing such a test into the Crimes Act.
71As a result of some amendments made back in 2020, prison is mandated for a variety of offences but not these two that I am dealing with. Prison is now mandated for a second or subsequent offence such as any of yours. But there is no legislative mandate for prison in this case. Section 17A remains unaltered by those 2020 amendments in terms of the decision as to whether prison is required in a given case. If it is, then the amendments to s20(1)(b)(ii) come into play and there is a presumption in favour of some prison being served but no amount specified. A single day would satisfy that provision and, as I have said, those amendments would only apply to Charge 2.
72If the legislature wanted to mandate prison across the board for these sorts of offences, well, of course, they could have. They have chosen not to and correctly so in my judgement. The Court of Appeal in this State has spoken very recently as to some of the real problems associated with mandatory sentencing (see the case of Buckley v The Queen [2022] VSCA 138).
73Nor do the prosecution even call for a prison term in this case. Their reasons for that softened sentencing submission are spelt out in their written submissions marked as Exhibit B and they are very persuasive.
74However, I have to exercise my sentencing discretion in your case; they are not exercising it.
75Prison is a disposition of last resort. It may be selected only if I am satisfied that no other sentencing alternative is appropriate in all the circumstances of the case. That is the effect of s17A. I must only pass proportionate sentences (see s16A(1) of the Act).
76The Crown and the defence submissions refer to that case of Garside that I have referred to. That case drew together much of the case law and the principles to be distilled from the case law and your counsel referred to it at paragraph 4.
77It is clear that the problem of child abuse material is a significant problem. The prevalence and the ready availability of pornographic material involving children, particularly on the internet, requires that general deterrence be the paramount sentencing consideration. Denunciation is also important.
78It is clear that given the prevalence of this style of offending and the paramountcy of general deterrence, that past good conduct is to be afforded or given lesser weight than is often the case. However, it is not to be ignored. It is still obviously relevant to my task.
79The Court of Appeal, in that same decision, dealt with the task of assessing the gravity of this style of offending, including considering of the nature and the content of the material, the age of the victims, the gravity of the sexual activity portrayed, the number of images accessed, the duration, and whether there was a commercial setting or distribution in mind or any profit motive engaged in the exercise.
80Well, I am dealing with a very small quantity of this style of material. There is no profit. There is no commerciality. Transmission was involved but of a single video. All up, two children are represented and falling into the categories described. I am not sentencing you for soliciting. That matter is being taken into account pursuant to section 16BA.
81So statements made in cases such as Garside as to what is ordinarily to be expected, cannot and should not be treated as some judicial or statutory fetter, to my discretion, in the given case. They are not.
82I have to exercise my sentencing discretion in your case, and there is no starting point that prison is required until it is demonstrated that it is not. That would involve me introducing a provision into the Act which does not exist.
83So I do take the view that this is offending at a low level by a man with no criminal history and one who has engaged in significant steps towards rehabilitation since the offending. I am very much fortified by the submissions made by the Crown in this case.
84I do take into account the matters that are set out within the relevant provisions of the Act, in particular s16A(1) and (2), also s16A(2AAA). General deterrence is important, I accept that. Denunciation is important. I have to give weight to the need to punish you adequately and to also adequately reflect specific deterrence and protection of the community. But given my very favourable views as to your prospects of rehabilitation and the low risk that you present, I believe it is appropriate to significantly moderate the weight given to community protection and specific deterrence and, accordingly, give more weight to your ongoing rehabilitation. Rehabilitation which I add is, to a very large extent, achieved already.
85As I have said, prison is a disposition of last resort. Had I reached a view that this last resort had been attained on Charge 2 but not Charge 1, I would then have been prohibited from wholly suspending the term by fixing an immediate release onto a Recognizance Release Order, unless exceptional circumstances were established. That arises courtesy of those 2020 amendments that I have spoken of which would apply only to Charge 2. So in that sort of setting, in the absence of exceptional circumstances, there is now a presumption of a person serving at least some time in prison and also a number of mandated conditions attached to any Recognizance Release Order.
86Mr Care argued against any prison term at all. Indeed, I set out earlier in these reasons the cascading order of sentences urged by him upon the court. A bond without conviction, or failing that, a bond with conviction or a CCO, or failing that, if prison was required in this case, that the various matters raised on the plea in mitigation would in combination amount to exceptional circumstances such as to leave open your immediate release onto a Recognizance Release Order. I have little doubt they would have been so viewed by me had I been compelled to consider that issue.
87In the circumstances, I do not need to determine whether those matters in combination amount to exceptional circumstances and that is because prison is not required here on either charge. I do not think that this last resort is reached in this case, owing to the various matters I have discussed in these reasons to date. In that regard, I accept the prosecution submission which coincides with that made by your own counsel. That is, that prison is not warranted here.
88
However, then there is the issue of the actual disposition and there is a dispute in terms of the submissions made to me. The submission made by Mr Care as to a non-conviction bond was, indeed, an ambitious one. Mr Care could take me to no example of a case involving this style of conduct where a non-conviction bond was utilised. That is hardly surprising, given the offence maximum and the way in which this style of offending has been characterised by Courts all around Australia.
Mr Care accepted that general deterrence is the paramount consideration and that denunciation is also of real important.
89The criteria for my making an order under s19B are set out within the section themselves. One or more than one of the factors identified in s19B(1)(b) must be identified and, secondly, consideration must then be given to that factor(s) in taking into account the other matters spelt out in s16A and whether or not it is inexpedient to inflict any punishment. You are previously of good character, I have mentioned that already. There really are no extenuating circumstances here nor can the offending be described as trivial. It was not, but undoubtedly were low level examples of what is, however, an inherently serious offence.
90I do not believe it would be open or appropriate not to proceed to conviction and that follows as a result of the importance in this style of case of general deterrence and denunciation.
91I do believe though, that it is open to me to deal with you by way of a s20(1)(a) bond with conviction.
92So I might have to tidy up the wording. I will ask for the Crown to assist me in due course and, for that matter, for Mr Care's contribution and I will ask you in due course whether you consent to entry into this recognisance.
93But this is what I intend to do. What I intend to do is, without passing sentence and to order your release under s20(1)(a) of the Crimes Act1914 (Cth) upon your giving security by way of a recognisance in the sum of $1000 to comply with the following conditions and there is only condition;
·That is, that you be of good behaviour for a period of two years.
94So I would ask that a bond reflecting those terms be prepared by the prosecution, if that can be done. If you have got one available, if that can be sent to my associate, Ms Hough.
95MS HOUGH: Yes, Your Honour.
96HIS HONOUR: Before you do, are there any matters other than the ones I have mentioned that I need to deal with or not? On the recognisance?
97MS HOUGH: No, Your Honour.
98HIS HONOUR: So I am specifying an amount but that is only an amount he'll forfeit if he breaches it, as I understand it, and it's for a period of two years, he'll be of good behaviour.
99
All right, so you'll get a chance to discuss this with Mr Care in a moment,
Mr Jamali, but that's what I intend to do. Now, what does all that mean. I'm sorry to have had you pinned down there and there's been a lot of legal language, a lot of references to provisions within the Crimes Act and the Migration Act and it's very difficult even for lawyers to follow actually, much less for someone in your position.
100I've mentioned the recognisance; what's all that mean? It's a promise basically. It's your promise to be of good behaviour for the next two years, that's what it means. That's what it boils down to. I've mentioned $1,000. That's not $1,000 you have to pay up front. That's a sum that you would forfeit if you breach the terms of this promise. So pretty straightforward.
101I need to explain the purpose and the effect of this order. Well, the purpose is, for the next two years you stay out of trouble. Shouldn't be a problem for you, and if you do, that'll be the end of the matter. But if you don't, if you commit any offences in the next two years, you will breach this promise and you'll be brought back to court and I have to explain the ramifications of that, if you are brought back to court.
102You've got a right to apply to vary this order but I can tell you, in the present circumstances it's hard to contemplate any circumstance that would lead to a variation of it.
103So what happens if you breach it and I do need to explain that to you. Well, for a start, you'd then forfeit $1,000. Well that's a bit of money but it's not the end of the world, you're making pretty good money. If that was all it was, then it wouldn't be the end of the world. But what I then have is a very limited range of options because it comes back to this court. It doesn't go to the Magistrates' Court, it comes back to this court in front of this judge.
104So you'd be brought back in front of me, you'd have an expectation that you would forfeit a $1,000 and I've got very limited options open to me. I can fine a person, I can take no action but you shouldn't expect that, or I can revoke the order. And if I revoke the order, I then take into account the extent of your compliance with the undertaking and I then re-sentence you. You don't want to be sitting back there in the dock of a court facing a re-sentencing exercise on this offending and you don't have to.
105So as I say, it's pretty straightforward. You stay out of trouble for the next two years from today's date and you will have finalised this matter. If you breach this promise to be of good behaviour, then of course you'll be brought back before this court. You'll get a copy of this document as well. It'll be signed by me and by you and by my associate.
106Let me just see what else I need to explain. It think that's probably about it. Well, I'll just have a look at the document. We'll have it printed off and if that fits the bill then we'll have it signed. I'll have that come down and if you have a look at this as well, Mr Care, and satisfy yourself that it fits the bill and, if it does, I'll have you go down and just have a chat with your client.
107MR CARE: Yes, sir.
108HIS HONOUR: Just have a look at that and make sure - does that seem in order?
109MR CARE: Yes, Your Honour.
110HIS HONOUR: Look, go down and have a chat and I'll ask your client whether he consents, but if he does, he can sign it anyway. Yes, all right, well, I'll grab that if we could. That's been signed by your client?
111MR CARE: And, yes, Mr Jamali consents to the order.
112HIS HONOUR: All right, anyway, your client is, by his signature, consenting to release on this recognisance?
113MR CARE: Yes, sir, that's correct.
114HIS HONOUR: All right, well, Mr Jamali, just stand up would you then please. Do you confirm that this is your signature on this document?
115OFFENDER: Your Honour, yes, Your Honour.
116HIS HONOUR: You've signed it and you agree to be bound by this promise?
117OFFENDER: Yes. Yes, Your Honour. Yeah.
118HIS HONOUR: All right and you understand it?
119OFFENDER: Yes, yes.
120HIS HONOUR: Yes, all right. Well look, I'll have that signed by my associate as well and then we'll get a copy of it run off for you. Grab a seat then.
6AAA
121I have told you that I have reduced your sentence because you have pleaded guilty at the earliest opportunity and I have taken into account your early guilty plea. If you had been convicted of these offences following a trial, I would have sentenced you to prison. I would have imprisoned you for two years. I would have fixed a Recognizance Release Order releasing you after serving 15 months and that is to be noted in the records of the court.
Forfeiture
122Further, there is a forfeiture order sought under the provisions of s23ZD of the Crimes Act for forfeiture of the Apple iPhone. No issue was taken with the making of that order and there does not seem to be any discretion vested under s23ZD. I order forfeiture to the Commonwealth of that object.
s16BA
123What else do I need to do? I have taken into account the soliciting charge pursuant to s16BA of the Crimes Act and I have signed that prescribed document in the appropriate area.
Sex Offender Registration Act 2004
124Finally, there is the aspect of the sex offender registration. You have been sentenced by me in relation to what are described as two Class 2 offences under the Sex Offender Registration Act. There is no issue taken with the length of reporting obligations under that Act. I have no discretion in this regard. You must comply with your reporting and other obligations under that Act for the period of 15 years.
125So I'm going to have the document come down to you. I'll have it brought down now by my associate. You're going to need to acquaint yourself with it, all right? I'm not expecting you're going to do this now. As you'll see, it's a very lengthy document, all right? At this stage, all I'm doing is I'm having it provided to you for you to sign and by signing where you're asked to sign, you're just acknowledging that you've received those explanations as to your responsibilities under that Act.
126So what you'll see when you ultimately read within that document is that the Sex Offender Registration Act imposes a number of conditions upon you, including impediments to future employment in a number of areas. There are some impediments to your future contact with children and a need to report such contact. You need to familiarise yourself with your obligations. Get legal advice in relation to them if you need because any breach of that Act or your reporting obligations under that Act is itself a very serious criminal offence and one punishable by a term of imprisonment. Indeed, it strikes me, it would probably represent your greatest risk of actually breaching the law, breaching these obligations, all right? So it's important that you understand what it all means. You're not going to understand it today, it's a very lengthy document.
127Mr Care, you've seen these documents frequently, I'm sure of that. You know how long they are. I'm dealing only with the notification of his reporting obligations. It goes into all his requirements under the Act. He's not being asked to read it all now, that would be impossible for anyone to do, more so in this case, given language issues that might exist. He'll need to read it or have it read to him, but either way, he'll need to understand it and have it explained to him. He's being merely asked at this stage, by his signature, to acknowledge, the receipt of that notice. You understand that. Do you want to go down and just have a quick word to him about that?
128MR CARE: Yes, sir.
129HIS HONOUR: And then we'll have him sign the document. I've signed that already. Your client has signed that document, Mr Care. Let me just see then; are there any other matters at all from either of you?
130MS HOUGH: No, Your Honour.
131MR CARE: Not from defence, sir.
132HIS HONOUR: All right. Yes, all right, well look, I heard - as I say, I judge his risk of reoffending to be very low but there are lots of people who breach these reporting obligations under the Act, often not even deliberately, so he'd need to be very careful about that. Well, that completes the matter then, so I'll sign those orders. I'll sign them on the Bench actually while I'm here.
133I've signed those formal orders, so that completes the matter.
- - -
0
4
0