Director of Public Prosecutions v Mohammadiyan-Diznab
[2021] VCC 2137
•15 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-21-01791
Indictment no. M10350789
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GOLSHAN MOHAMMADIYAN-DIZNAB |
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JUDGE: | HER HONOUR JUDGE CARLIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 December 2021 | |
DATE OF SENTENCE: | 15 December 2021 | |
CASE MAY BE CITED AS: | DPP v Mohammadiyan-Diznab | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2137 | |
REASONS FOR SENTENCE
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Subject: Criminal
Catchwords: plea of guilty; sexual activity in the presence of a child under 16 under s 49F Crimes Act1958 (Vic); standard sentence offence; child filmed offender’s exposed penis while in moving car; possession of a drug of dependence; s 6AAA declaration.
Legislation Cited: Crimes Act1958 (Vic); Crimes Amendment (Sexual Offences) Act2016 (Vic); Drugs, Poisons and Controlled Substances Act1981 (Vic); Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic).
Cases Cited: DPP v Sims [2021] VCC 571; DPP v Moulden [2019] VCC 386; Clarkson v The Queen (2011) 32 VR 361; Adamson v R [2015] VSCA 194; Worboyes v The Queen [2021] VSCA 169; Brown v The Queen [2019] VSCA 216; Director of Public Prosecutionsv Toomey [2006] VSCA 90.
Sentence: Total Effective Sentence of one year and one month imprisonment; 18-month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Cameron | Office of Public Prosecutions |
| For the Accused | Ms S. Seoud | Galbally Parker |
HER HONOUR:
Introduction
1. Golshan Mohammadiyan-Diznab, on 13 February 2021 you, a 62-year-old man, intentionally exposed your penis to 11-year-old Tina Jones.[1] You had met Tina previously through friends and knew she was only 10 or 11. She was also in the care of the State, although there is no evidence that you knew that.
[1] A pseudonym. To ensure there is no identification of a victim of a sexual offence, these published reasons for sentence have been anonymised by the adoption of a pseudonym in place of the name of the victim and the removal of all identifying information. A Schedule of Substitution will be retained by the Court for future reference.
2. On the day in question Tina had attempted to visit her friend who lived close to you. Upon discovering that he was not home, she walked to your house and asked you to drive her to Hungry Jack's where she had been told her friend would be. You agreed and she got into your car and sat in the passenger seat next to you. Towards the end of the journey Tina noticed your exposed penis and had the presence of mind to film it with her mobile phone. You dropped her off without incident and Tina later showed the recording to several people. This led to the police being notified.
3. On 18 February 2021 the police executed a search warrant at your home. They discovered a total quantity of substance containing methylamphetamine in various Snap Lock bags of 37.8 grams. The purity of the various Snap Lock bags was between 84 to 88 per cent. You were arrested on that day and taken to the police station for interview.
4. You told the police that Tina was 10 or 11 years old and indicated that you ‘didn’t close [your] zip, that’s all’. You confirmed that the items located at your address contained ice, which is the common term of methylamphetamine, and said that you used it for your pain.
5. On 2 December 2021 you pleaded guilty before me to one charge of sexual activity in the presence of a child under 16 contrary to s 49F(1) of the Crimes Act1958 (Vic), as amended by the Crimes Amendment (Sexual Offences) Act2016 (Vic), and one charge of possession of a drug of dependence contrary to s 73(1) of the Drugs, Poisons and Controlled Substances Act1981 (Vic).
6. A plea on your behalf was conducted before me on the same day. By that time you had already spent 287 days in custody.
7. It now falls to me to sentence you for your conduct. Your counsel, Ms Seoud, submitted that a combination sentence, being a term of imprisonment and corrections order was appropriate and within range.
8. The prosecutor, Ms Cameron, submitted that a sentence of imprisonment was warranted, but not one combined with a corrections order. I understand
Ms Cameron to be submitting that a sentence involving a head sentence and non‑parole period was called for.
9. In arriving at an appropriate sentence, I am required by law to have regard to a variety of factors which I will outline in these sentencing remarks.[2] Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each the weight it deserves to arrive at a just sentence.
Your personal circumstances
[2]Sentencing Act 1991 (Vic) s 5(2) (‘Sentencing Act’).
10. Turning to your personal circumstances, these were outlined in defence submissions and four supporting medical documents, being: two letters from Dr Peter Janovic, dated 14 February 2017 and 11 October 2017, a Multidisciplinary Report dated 3 May 2017, and a 'Post-Group Report' dated 26 October 2017.
11. You are 63 years old.
12. You were born in Iran and grew up in the city of Tabriz. Your mother left the family when you were two, leaving your father to care for you and your older brother.
13. Your father was of the Baha'i faith, the largest non-Muslim religious minority in Iran. He converted to Islam to be with his new partner, your stepmother. You have four younger half siblings from that relationship.
14. Your father continued to take you and your brothers to Baha'i school as children and, despite your father converting to Islam, you did not. This caused friction between you and your stepmother. She got angry about your participation in Baha'i faith activities, and you reported being beaten by her.
15. You attended school in Tabriz to the equivalent of Year 10. At the age of 16 you went to live with your extended family in Tehran and began training as a plumber.
16. You had 21 months of mandatory military service from the age of 19.
17. As you were finishing this service, the political situation in Iran changed with the Islamic Republic proclaimed in 1979. The Baha'i community began to suffer systematic persecution and harassment, including exclusion from higher education and job opportunities, arbitrary arrests, raids, detention and, in some cases, execution.
18. You married at the age of 22. Despite living under a dangerous regime, you trained in mechanical engineering and specialised in laying cables for transportation. You worked on installing the first cable cars in Tehran which job afforded your family some security.
19. Your work was physically demanding and dangerous. You suffered back pain in your 20s which was exacerbated when you fell 6 metres from scaffolding. You began using opium to alleviate the pain and quickly became addicted, using one to two grams daily.
20. In 1999, you and your family relocated to Turkey as refugees in the hope of securing a better future for your children. Then in 2000 you relocated to Australia under the auspices of the United Nations. In 2004, you and your wife separated after 23 years together.
21. After arriving in Australia, you opened a panel beating workshop which you ran for 12 years. You closed the business in 2012 due to your back injury and have been receiving the Disability Support Pension ever since.
22. You have had two long-term relationships post your marriage. Your current partner provided a letter of support in this matter.
23. Your use of illicit drugs to manage your back pain continued in Australia. Unable to access opium you began using methylamphetamine and continued doing so until remanded in custody on this matter. This use led to repeated offending, a matter to which I will return later.
24. In 2017 you were referred to the Caulfield Pain Management and Research Centre. Dr Janovic describes your neck, shoulder and lower back pain caused by L4-5 spinal canal stenosis, with nerve root compression at L4, and significant stenosis at two levels, with nerve root compression of C6 and C7. Other medical reports note that you have restricted range of movement and that your chronic pain has contributed to diagnoses of post-traumatic stress disorder, anxiety and depression. I note, however, that no psychological report was provided to the Court.
25. You were prescribed Targin, which is oxycodone/naloxone, a slow-release opiate analgesic used for moderate to severe pain, and Lyrica, an anticonvulsant used to treat neuropathic pain, prior to your remand. You continue to take these medications in custody as well as Escitalopram, an antidepressant.
26. You have been in custody since your arrest on 18 February 2021. Due to COVID-19 you have not had access to programs until recently. You have also had only sporadic and brief contact with your family via Zoom.
27. In May 2021 another inmate at Hopkins Correctional Centre assaulted you in your sleep. You have pain and restricted movement in your left arm as a result. You are on a waitlist to see a specialist. The assault has had other implications for your time in custody: you had to be moved to another unit which is more onerous than your previous one.
28. Your adult children continue to support you financially and emotionally. Both provided letters of support in this matter.
Objective gravity of your offending and moral culpability
29. Two factors of central importance in determining any sentence are the objective gravity of the offending and the moral culpability of the offender.
30. All sexual offending involving children is serious. If there was any doubt about that, the maximum penalty of 10 years' imprisonment for your offence of sexual activity in the presence of a child under 16 makes that perfectly clear. So too does the fact that Parliament has deemed it a serious offender offence and has set the standard sentence for offences of mid-range objective seriousness at four years, with a presumed minimum non-parole period of at least 60 per cent of the total effective head sentence.[3]
[3]Sentencing Act (n 2) s 11A.
31. For reasons which are unclear you chose to expose yourself to an 11-year-old girl when she was sitting beside you and effectively trapped in your vehicle with no escape. Your conduct was directed at your victim, rather than incidentally taking place in her presence, and you gave absolutely no thought to how it might make her feel either then or in the future. You readily exploited the trust she showed in you, knowing her to be vulnerable because of her age, if not because she was also in State care.
32. As against that your offending was isolated and opportunistic, with no evidence of grooming or premeditation, and you did not touch yourself. Although what you did is undoubtedly serious, on the spectrum of seriousness for this offence I consider it to be at the lower end, which is not to say your moral culpability is low. To the contrary, your moral culpability is high.
33. The maximum penalty of five years for your drug possession charge similarly reflects the seriousness of that offence. The quantity of almost 40 grams of a mixture of high purity was not a small amount and you have priors for possession and trafficking of methylamphetamine. You have been prescribed medication for your back pain and there is no excuse for you, yet again, having methylamphetamine in your possession, whatever the reason. I consider your moral culpability for this offence also to be high.
Current Sentencing Practices
34. One of the matters to which I must have regard in arriving at an appropriate sentence for you is current sentencing practices which may be gleaned from statistics or sentences imposed in other cases or both.[4]
[4] The rationale for doing this is to promote consistency of approach in sentencing, particularly the application of relevant sentencing principles.
35. Whilst no two cases are ever truly the same, and other sentences are not precedents to be applied or distinguished, sentences imposed in comparable cases may provide a convenient yardstick against which to measure any sentence proposed in the instant case.
36. Section 49F of the Crimes Act 1958 (Vic), your Charge 1, only commenced on
1 July 2017 and on 1 February 2018 it became a standard sentence. In determining current sentencing practices for a standard sentence offence, I am prohibited from having regard to sentences imposed prior to the introduction of the standard sentence regime. In other words, I can only consider sentences imposed for offences committed after 1 February 2018.[5] This effectively means there are no sentencing statistics for your offence of sexual activity in the presence of a child under 16 and only a limited number of comparable cases.
[5]Sentencing Act (n 2) s 5B(2)(b).
37. Nevertheless, Ms Seoud tendered a table of cases dealing with s 49F offences, one Court of Appeal and five County Court sentences. I have looked at all those cases, however, only two involved s 49F as a standard sentence offence and the sentences imposed in those cases were two and half years and two years respectively. They were the County Court cases of DPP v Sims[6] and DPP v Moulden.[7] Limited assistance can be gleaned from those sentences, both because two cases do not a sentencing practice make and also because the circumstances of offending and offender were quite different from the present. These differences serve to highlight that ultimately my duty is to impose a just and appropriate sentence on you in the unique circumstances of this case.
Impact of your offending
[6] [2021] VCC 571.
[7] [2019] VCC 386.
38. Other matters I am required to take into account are the impact of your offending on your victims and their personal circumstances.[8]
[8]Sentencing Act (n 2) ss 5(2)(daa), (da) and (db).
39. Tina Jones declined to provide a victim impact statement although she did tell the police that she was scared when she saw your penis. The fact she did not provide a victim impact statement does not mean she suffered no harm. There is a legal presumption that premature sexual activity causes long term and serious physical and psychological harm to children.[9] In the circumstances of your offending I do not speculate as to the possible long-term consequences for your victim. It is safe to assume, however, that as well as being scary, your actions would have been confronting and uncomfortable, especially as Tina was alone in a moving car with you and unable to remove herself from the situation.
[9]Clarkson v The Queen (2011) 32 VR 361, 368 [26], 371 [33]; Adamson v R [2015] VSCA 194, [56].
Plea of guilty, co-operation and remorse
40. You are entitled to a significant discount in your sentence for the fact you pleaded guilty and did so at the earliest opportunity, being the committal mention stage. In so doing you facilitated the course of justice and took legal responsibility for your crimes. You also spared your victim the ordeal of having to give evidence. The fact the case against you was strong by virtue of the phone footage does not detract from the utilitarian value of your plea of guilty. Moreover, our Court of Appeal has recently emphasised the need for sentences to reflect the high value of pleas of guilty in the current COVID-19 environment where the legal system is under considerable strain.[10]
[10] See, eg, Worboyes v The Queen [2021] VSCA 169, [39].
41. You do not get any additional discount in your sentence for remorse as there is no convincing evidence that you are truly remorseful. You did apologise in this Court when the charge was read to you and also apologised to the assessing Corrections officer, however, you essentially minimised or denied the offending to the interviewing police officers, saying, 'I didn't close my zip, that's all’. Further, you told the Corrections officer that your offending 'hasn't had any impact on the child', indicating a lack of insight into the consequences of your actions.
Your character and risk of reoffending
42. Your criminal history suggests your prospects of rehabilitation are pretty bleak. Although you have never sexually offended before, you have been before the courts on many occasions since 2010. Most of your offending relates to drugs of different types and includes possession, use and trafficking offences. However, you have also been convicted of dishonesty, weapons and assault offences. You have received a range of dispositions, including fines, corrections orders involving treatment and rehabilitation, and imprisonment. You have breached two corrections orders. The offences before me occurred two and a half years after your last court appearance, indicating you have not been deterred, nor rehabilitated, by any past sentences. Not only were you not deterred from offending in a similar manner to your past, that is by possessing drugs, when the opportunity presented you chose to offend in a whole new way, that is, sexually.
43. In your favour is the fact you have the support of your family. Letters of support were provided by your current partner and two of your children. It is notable that these letters were short on detail and similar in content, but I take them at face value. Also in your favour is the fact you have remained drug free whilst in prison. Although there is no clear explanation for Charge 1 it is possible that your consumption of ice contributed. It certainly seems clear that your ability to remain offence free is tied to your ability to remain abstinent from illicit drugs. No matter how much help you are given the responsibility for doing that rests on you. Overall, I am cautiously optimistic that this latest stint in prison may have had some effect on your motivation to remain drug and offence free.
The burden of imprisonment
44. In determining the appropriate sentence, I must consider how a term of imprisonment would be likely to impact you. I am not satisfied that prison is harder for you than the ordinary prisoner because of your mental health, nor that your mental health is likely to decline in prison. I do, however, take into account your back injury, your recent assault by another prisoner and also the effects of COVID-19. I accept that a term of imprisonment during the pandemic is generally harder than at other times. The requirement to quarantine, the curtailment of various activities and programs, the reduction or suspension of personal visits and the occasional lockdowns are all additional burdens.
Purposes of sentencing
45. Under the Sentencing Act 1991 (Vic) the only purposes for which a sentence may be imposed are just punishment, deterrence, rehabilitation, denunciation and protection of the community. I am obliged not to impose a more severe sentence than is necessary to achieve those purposes. A custodial sentence must only be imposed as a last resort and then must be the absolute minimum required. Further, when there are multiple charges, such as here, the total effective sentence must not offend the principle of totality. What that means is that you must not be punished any more than is proportionate and appropriate to your overall criminality.
46. As I have already said Charge 1 is a standard sentence offence. The methodology for sentencing for standard sentence offences is now settled and I do not need to repeat it here.[11] Suffice to say the standard sentence of four years is a matter I have taken into account, as I have the maximum penalty and all other relevant considerations.
[11] Brown v The Queen [2019] VSCA 216 - The sentencing court is not to engage in a two-step process of first assessing the objective seriousness of the offence compared to some hypothetical mid-range offence and then work up or down depending on personal circumstances or other factors. Rather, it must take into account the standard sentence and standard non-parole period in the same way as it takes into account the maximum penalty, and indeed all other relevant sentencing factors, to arrive at an appropriate sentence by instinctive synthesis.
47. The courts have repeatedly emphasised that in sentencing for sexual offences against children general deterrence and denunciation are paramount sentencing considerations. Anyone who is tempted to offend against children in the belief they can do so with impunity needs to know that when their crimes come to light they will be punished severely. There is a need for such sentences to vindicate not only the individual victims, but also the values of society, 'fundamental to which is the protection of its children'.[12]
[12] Director of Public Prosecutionsv Toomey [2006] VSCA 90, [17], [22] per Vincent J.
48. In your case the principles of specific deterrence and community protection also are important. That is, as well as deterring others, my sentence needs to deter you from reoffending and to protect the community from you.
49. Of course, my sentence must also be just. It must reflect the mitigating factors I have already outlined and it should allow for your rehabilitation. It is by your rehabilitation that society will be best protected.
50. I have decided that the purposes of sentencing in this case can best be met by the imposition of a combination sentence rather than the setting of a head sentence and non-parole period. In my view the low objective gravity of Charge 1, combined with your mitigating factors, warrant a sentence considerably less than the standard sentence of four years.
51. Taking into account the fact you have now served 300 days in custody, the best chance of achieving your rehabilitation, including by assessment and treatment for sex offence specific programs, as well as drug assessment and treatment, is by the imposition of a lengthy corrections order following your release from prison. I have had you assessed for such an order and you have been found suitable, with some reservation I might add. The assessing officer recommended a corrections order of no less than 18 months to enable you to participate in the sex offender program if you are found suitable.
Sentence
52. Mr Mohammadiyan-Diznab, I am now going to pronounce the sentence upon you. Because you are appearing remotely you can remain seated throughout.
53. On Charge 1, that is, the charge of sexual activity in the presence of a child under 16, I convict and sentence you to a term of 12 months. This is the base sentence. On Charge 2, the charge of possession of a drug of dependence, I convict and sentence you to a term of two months, one month concurrent with Charge 1.
54. This means the total effective sentence of imprisonment is one year and one month.
Pre-sentence detention
55. I declare that you have already served a total of 300 days of pre-sentence detention, not including today, in respect of that sentence, and order that this declaration be entered in the records of the court and that the period be deducted administratively.
Community Corrections Order
56. On Charges 1 and 2 I also impose a single community correction order. The order will last for 18 months.
57. You are to report via telephone to the Box Hill Community Correctional Centre within two working days of your release from custody. So, as you will appreciate, you still have some more time to serve in prison before you will be released, but once you are released you must report via telephone to the Box Hill Community Correctional Centre within two working days.
58. As well as the mandatory conditions of the correction order – and those mandatory conditions include that you not commit another offence, as well as various other things, such as you must not leave Victoria without first getting permission to do so and you must obey all lawful instructions from and directions of the Secretary – I have imposed some special conditions and they are as follows:
·You are to be under the supervision of a Corrections officer for the duration of the order;
·You are to undergo assessment and treatment, including testing, for drug abuse and dependency;
·You are to undergo medical assessment and treatment as directed;
·You are to undergo mental health assessment and treatment as directed;
·You are to undertake any other treatment and rehabilitative programs to reduce reoffending as directed;
·You are to participate in judicial monitoring and are to appear at 10:15 AM in the morning for your first judicial monitoring on 4 April 2022. You can appear remotely at that judicial monitoring.
59. Judicial monitoring means you will appear before me, as will the Corrections officer in charge of your case. That is so I can see how you are going on the order and how the Office of Corrections is administering the order. After that first judicial monitoring there will be other judicial monitorings set.
60. Your counsel will explain that order in more detail, but you must make sure you comply with that order because breach of the order is an offence in itself and, in addition, you are liable to be resentenced for the original offences. The corrections order I have imposed is a long order. That is because of the seriousness of your offending and because I think having you supervised for that length of time is the best way of ensuring that you maintain abstinence from drugs and also to allow you to participate in offence specific programs such as the sex offender program. You should realise that if you breach the order resentencing you on the original offences is a real option and in that event there is a real possibility that you would go back to prison.
Section 6AAA
61. If you had not pleaded guilty to these offences and then been found guilty by a jury, I would have sentenced you to a total effective sentence of imprisonment of two years, two months, with a non-parole period of one year and eight months.
62. Now, I'm just going to ask you, Mr Mohammadiyan-Diznab, do you understand the sentence that I have imposed?
63. OFFENDER (Through interpreter): Yes, I understand. I do, Your Honour.
64. HER HONOUR: Thank you. I will sign the community corrections order and we will send it to you in prison, but do you consent to the corrections order as I have read it out to you?
65. OFFENDER (Through interpreter): Yes, thank you, Your Honour.
66. HER HONOUR: All right. Well, we will note your consent on the order, but also send it to you. So, Mr Mohammadiyan-Diznab, you have a bit more time to serve in custody then you will start on that corrections order; understand?
67. OFFENDER (Through interpreter): Pardon, Your Honour?
68. HER HONOUR: I said you have a bit more time to serve in custody and then you will start on the corrections order.
69. OFFENDER (Through interpreter): (Indistinct), Your Honour.
70. HER HONOUR: Sorry, I just missed you there, Mr Interpreter.
71. OFFENDER (Through interpreter): Okay, Your Honour.
72. HER HONOUR: All right. Now, are there any other matters that I need to address before we adjourn?
73. MS ZELEZ: Your Honour, sex offender registration and also there was a disposal order that had been e-lodged.
74. HER HONOUR: Right. And what was that for?
75. MS ZELEZ: That related to drugs or the methylamphetamine and some of the Snap Lock bags.
76. HER HONOUR: All right. I take it there's no objection to the disposal order.
77. MR BELL: None, Your Honour.
78. HER HONOUR: I'll make the disposal order. Now, I'm just looking at the prosecution summary and I don't see any reference to the Sex Offender Registration Act in that. Yes, it's in the submissions. All right. Let me have a look.
79. MS ZELEZ: It may have been in the submissions, yes.
80. MR BELL: Your Honour, my client is aware that he needs to be placed on the register for eight years and comply with that upon his release.
81. HER HONOUR: Right. All right. Yes. No, I see it there in the submissions. So in terms of the Sex Offender Registration Act 2004 (Vic), Mr Mohammadiyan-Diznab, your Charge 1 is a class 2 offence pursuant to the Sex Offender Registration Act2004 which means that you are subject to mandatory registration under that Act and must report for eight years. You will get a document setting out your obligations under that Act. So we'll have that sent to you as well, but essentially you have to have interviews with police officers and you have to notify them of certain things such as changes to your telephone number, internet, email address, that sort of thing, any social media accounts, but that will all be explained to you. So you understand that as well,
Mr Mohammadiyan-Diznab? Mr Interpreter, did you interpret that to him?
82. INTERPRETER: I beg your pardon, Your Honour. May I ask you to repeat it?
83. HER HONOUR: Well, it's hard to repeat. What part did you want me to repeat? I explained to him - - -
84. INTERPRETER: Just the last two sentences, please.
85. HER HONOUR: I'm not sure exactly what I said, but - - -
86. INTERPRETER: I briefly explained about his name will be registered under Sex Offenders Registry and they will notify him later on about his online behaviour and online applications and they will actually - later on they will explain actually about that.
87. HER HONOUR: The requirements, yes.
88. INTERPRETER: And he is aware of that, Your Honour.
89. HER HONOUR: As long as he knows it's for eight years and he has to comply with his reporting.
90. INTERPRETER: Yes.
91. HER HONOUR: All right. Thank you. All right. Are counsel happy with that?
92. MR BELL: Yes, Your Honour.
93. HER HONOUR: All right. All right. Well, unless there's something else then we'll adjourn the court.
94. MR BELL: Your Honour, can I please just have the link with my client just for 30 seconds?
95. HER HONOUR: Certainly. I'll leave the Bench and you can remain on.
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