Director of Public Prosecutions v Mokdissi
[2021] VCC 440
•19 April 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-20-01107
| COMMONWEALTH DIRECTOR |
| v |
| JAKE MOKDISSI |
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JUDGE: | HIS HONOUR JUDGE MASON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 April 2021 |
DATE OF SENTENCE: | 19 April 2021 |
CASE MAY BE CITED AS: | DPP v Mokdissi |
MEDIUM NEUTRAL CITATION: | [2021] VCC 440 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Use carriage service for sexual activity with person under 16 years of age - produce child abuse material - use carriage service to groom person believed to be under 16 years of age for sexual activity - use carriage service to transmit indecent communication to person under 16 years
Legislation Cited: Sentencing Act 1991 (Vic), Sex Offenders' Registration Act 2004 (Vic), Crimes Act 1958 (Vic), Crimes Act 1914 (Cth), Criminal Code (Cth)
Cases Cited: DPP & DPP (Cth)v Swingler [2017] VSCA 305
Sentence:5 years and 6 months' imprisonment, non-parole period 3 years and
3 months---
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms K. Breckweg | Commonwealth Office of Public Prosecutions |
For the Accused | Ms M. Casey | Smith & Tapper Criminal Lawyers |
HIS HONOUR:
1Jake Mokdissi, you have pleaded guilty to:
· 15 charges of using a carriage service for sexual activity with a person under 16 years of age, contrary to s.474.25A(1) of the Criminal Code (Cth), for which the maximum penalty is 15 years' imprisonment (Charges 1 to 13, 15 and 17 on the indictment);
· one charge of producing child abuse material, contrary to s.51C(1) of the Crimes Act 1958 (Vic), for which the maximum penalty is 10 years' imprisonment (Charge 16 on the indictment);
· one charge of using a carriage service to groom a person believed to be under 16 years of age for sexual activity, contrary to s.474.27(1) of the Criminal Code (Cth), for which the maximum penalty is 12 years' imprisonment (Charge 14 on the indictment); and
· three charges of using a carriage service to transmit indecent communication to a person under 16 years, contrary to s.474.27A(1) of the Criminal Code (Cth), for which the maximum penalty is 7 years' imprisonment (Charges 18, 19 and 20 on the indictment).
2You have also admitted that on 24 January 2020, you did possess or control child abuse material obtained or accessed using a carriage service contrary to s.474.22A(1) of the Criminal Code (Cth), and you have agreed that this admission is to be taken into account in sentencing you on Charge 1 on the indictment in accordance with s.16BA of the Crimes Act 1914 (Cth).
3You are presently 25 years of age, having been born on 12 March 1996, and you were aged 23 when the offending occurred from November 2019 to January 2020.
4You have no prior convictions and nothing pending.
5On 24 January 2020, the Australian Federal Police executed a search warrant at your home address. You were served with a s.3LA Crimes Act 1914 (Cth) order requiring you to provide passwords and codes to unlock computer devices. After receiving legal advice you complied with the order, providing police with the relevant device passwords and codes. During the search police seized a Gigabyte laptop, Apple iPhone and Apple iPad.
6An examination of those electronic devices revealed the following:
a.Apple iPhone:
· The Omegle video chat application and Snapchat application were both installed on your iPhone.
Omegle is an internet site that facilitates random connection between users, allowing individuals to audio visually communicate anonymously with each other. Omegle pairs users at random with another person and once paired, both users appear on different sides of the screen and the users can use video and/or instant message by text to communicate.
Snapchat is a messaging application which allows users to exchange pictures, called snaps, which are meant to disappear after they are viewed; however third party applications can be used to store pictures and users can save chats without the sender's knowledge.
b.Gigabyte laptop:
· The screen recording program called Flashback Pro 5 was installed on your laptop computer. This application can be set to record a specific window, region of screen or full screen and can record audio, mouse movements and key presses.
· Three folders were located on the laptop which contained numerous video files of recorded interactions on the website Omegle.
7At the time of the offending, you were employed as an IT coordinator at a primary school. Over the period of your offending you were using the online website Omegle, the application Snapchat and Flashback Pro 5.
8The circumstances of your offending are set out in detail in the prosecution summary tendered on your plea. In basic summary, the 15 charges for using a carriage service for sexual activity involved engaging in the following acts:
Ø On 11 November 2019, you invited a female child under 16 to help you 'get hard,' and to 'cum.' The child then removed her underwear, exposed herself and performed a sexual act, and you exposed your penis and masturbated. This is represented by Charge 1.
Ø On 17 November 2019, you invited two female children aged 13 and 14, present at the same time, to ‘help me cum,' and encouraged them to remove their clothing. The children exposed themselves, including their genitals, and you exposed your penis and masturbated. This act is represented by Charges 2 and 3 on the indictment.
You also provided the children with your Snapchat user name. One of the children added you on Snapchat and you began communicating. The child ultimately blocked you but then she started receiving texts from another account belonging to you. She continued to block you on that account also. In one of your messages to her, you threatened to leak a video of her if she continued to block you.
Ø On 18 November 2019, you invited a female child under 16 to ‘help me cum' and to remove her clothing. She did, exposing her vagina, and she masturbated. You masturbated to ejaculation. The child told you she was 14 turning 15 and you replied, 'that's good enough for me.' This is represented by Charge 4.
Ø On 19 November 2019, you invited a female child under 16 to ‘help me cum,' and to remove her clothing. She did, exposing her breasts. You exposed your penis and masturbated to ejaculation. This is represented by Charge 5.
Ø On 25 November 2019, you invited a female child under 16 to ‘help me cum,' and to remove her clothing. She removed her underwear and exposed her vagina. You exposed your penis and masturbated. This is represented by Charge 6.
Ø On 12 December 2019, you invited a female child aged 14 to ‘help me cum' and encouraged her to remove her clothing and perform suggestive acts. She was wearing her school uniform. She removed her clothing to expose her breasts and vagina. You exposed your penis and masturbated. This is represented by Charge 7.
Ø On 2 January 2020, you invited two female children aged 12 and 13 to ‘help me cum.' The girls kissed, removed their underwear and touched their vaginas. You exposed your penis and masturbated, saying 'you're so hot.' This is represented by Charges 8 and 9.
Ø On another occasion on 2 January 2020, you engaged online with a male child under 16. You invited the child to ‘help me cum,' and asked 'are you hard?' You invited him to remove his shorts. The child masturbated and you exposed your penis and also masturbated. This is represented by Charge 10.
Ø On a further occasion on 2 January 2020, you encouraged two female children under 16 to 'make out,' 'lick each other's tits,' and to expose their vaginas. The children refused to expose their vaginas, however one exposed her anal region. You exposed your penis and masturbated. This is represented by Charges 11 and 12.
Ø On 6 January 2020, you invited a female child under 16 to ‘help me cum,' and 'help me get hard.' The child exposed her vagina and started masturbating. You texted encouraging words. You exposed your penis and masturbated. This is represented by Charge 13.
Ø On 9 January 2020, you invited a female 12-year-old child to ‘help me cum,' and encouraged her by further texting to remove her clothing and expose herself. The child exposed her breasts, removed her pants and exposed her vagina. You were not visible on the screen in this instance. This is represented by Charge 15.
Ø On 15 January 2020, you invited a female child aged 14 to ‘help me cum,' and then requested to see her body. She asked to move the conversation to Snapchat. During the conversation, you exposed your penis and masturbated. This is represented by Charge 17.
9Charge 16 of intentionally produce child abuse material knowing that the material was or probably was child abuse material reflects the 13 video recordings containing child abuse material that you produced in the course of committing Charges 1 to 13 and 15. The contents of the relevant video files are detailed under Charges 1-13 and 15 to which I have just referred.
10In summary:
· 13 of the recordings showed you interacting with a person who is or appears to be under the age of 16;
· these 13 videos were classified as child abuse material and were recorded during the commission of the offending of engaging in sexual activity with a child;
· of the 14 children involved, 7 have been identified as being aged between 12 and 14 years, and further 7 children appear to be under the age of 16 but are unidentified;
· in the video recordings, the computer screen was split into two - you are visible on the right-hand side and the person or persons that you matched with are seen on the left-hand side, and a text box is also visible that displayed the typed messages shared between you and the person you are matched with;
· you had created excerpts from videos that isolated an interaction with a specific child and each excerpt was given its own title.
11Charge 14 of using a carriage service to groom a person believed to be under 16 years of age for sexual activity involved the following acts:
Ø On 13 December 2019, a police online covert operative took control of the Snapchat account of the victim of your acts on 17 November 2019, whom you had threatened. The operative sent a message to your Snapchat account. You responded on 6 January 2020 that you were 'horny,' and wanted a reply. Communication then continued until 23 January 2020. During the communication, you told the operative that you had previously made the threat because she had 'treated me like dirt on Omegle, and you wanted her to feel the same way.' Asked why you had recorded her, you stated that you had recorded all interactions and used the recordings when you masturbated. When asked, you said that you would not tell the operative who you were as you might be reported and after providing some information, refused to provide your surname, stating that you could end your 'whole life' if you provided that information. When told by the operative that something was needed for trust, you provided a photo of your face, said that you worked in IT and what hobbies you had. You later said that you would like to kiss the operative if you were together and detailed how you would kiss her. You said you did not purposely seek out younger girls, rather that you came across younger girls on Omegle. You made further comments encouraging contact and activity together such as wanting to compliment her, calling her beautiful, princess and sweetie every day and that you wanted to be 'friends with benefits.' The operative reminded you that she was an inexperienced 13-year-old. You continued suggesting that one day you could give her money to buy data so that you could speak more frequently. You described 'friends with benefits' as 'secret best friends with benefits' with a winking emoji, and you suggested repeating what you had done on Omegle, including whilst being naked.
12Charges 18, 19 and 20 of use a carriage service to transmit indecent communication to a person under 16 represent the following acts:
Ø On 15 January 2020, you engaged in conversation with a child aged 14 using the Snapchat application and recorded on your laptop. In the screen recording, the child sent you a text, 'but the thing is that I am 13.' You replied 'we don't care,' together with an image of yourself holding your penis. She sent you a further text 'you are 20 and I am 13.' You replied 'I don't care.' The child stated, 'I do.' This conduct is represented by Charge 18.
Ø On 15 January 2020, you also invited two female children aged 13 to ‘help me cum,' and sent further messages encouraging the children to remove their clothing and expose themselves. The children asked if they could see you ejaculate to which you replied, 'I'm not even close,' and 'you're going to have to do a lot more.' The children told you that they were under-age and you said 'I am as well.' This conduct is represented by Charges 19 and 20.
13You were arrested on that day and subsequently were interviewed and made a “no comment” record of interview.
14I now turn to your personal circumstances.
15As noted earlier, you are now aged 25, you were 23 at the time of the offending and you have no prior convictions.
16Although your parents separated when you were about six years old, you otherwise experienced a normal, caring family life, having a close relationship with your siblings and your grandparents on both sides. You remained in your mother's care but had regular contact with your father. You did not develop any significant childhood illness and were not subject to any form of mistreatment. You remain resident in your mother's home.
17You have described yourself as having been good to very good academically and proceeded through secondary school without repeating. You successfully completed Year 12 and Certificates III and IV in Information Technology. You obtained employment in Information Technology at a primary school and continued in that engagement until your arrest in 2020. You have since been re-employed in IT with a large corporation.
18You experienced some bullying and ostracism at school and felt socially isolated and awkward throughout your life.
19You maintained a relationship with one partner from the age of 15 until shortly after being charged with this offending. You became dissatisfied with the sexual relationship with your partner for some years because of the low frequency of sexual intercourse, and you felt lonely and distant from your partner. As a result of this, you did not tell her of your frustrations, and instead sought an alternative sexual outlet - in the form of pornography and online chatting and sexual behaviour.
20Psychological reports from Mr Patrick Newton, clinical and forensic psychologist, Mr Peter Hanley, psychologist, and Mr Darren Perry, psychologist, were tendered on your plea.
21Mr Newton opined that you are currently suffering symptoms of anxiety and depression primarily reactive to the current prosecution and the shame you feel for your conduct. Underpinning these symptoms are other issues with immaturity, self-esteem and your sense of personal adequacy. Your personality is characterised by introversion, fear of rejection and intense awkwardness in social situations. While these are dysfunctional traits underpinning your offending, they fail to meet clinical criteria for Avoidant Personality Disorder. Your current symptoms are sufficiently intense to meet DSM-5 criteria for an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
22You began psychological therapy very shortly after your arrest. Between 3 February and 19 February 2020, you had attended 15 sessions with Mr Perry, and I understand that that program has continued. Mr Perry has focused on your anxiety and low mood as well as exploring your motivation to behave in the way that resulted in the current charges. Mr Perry has also opined that you suffer reactive depression and anxiety which meets a clinical diagnosis of Major Depression with Anxious Distress. Mr Perry has reported that you have engaged well in therapy, attending all appointments and putting into practice the techniques discussed in sessions with openness and honesty.
23Both Mr Newton and Mr Perry noted your expressions of shame, remorse and regret for your offending. Importantly, they also noted your empathy for the distress the victims, your girlfriend and your family have all experienced as a result of your acts. Mr Perry also noted the empathy and insight you developed within the sex offender treatment program in which you engaged.
24Character references from your parents, sisters and a cousin were tendered on your plea. The references maintain that the current charges are completely uncharacteristic of the person they know and that you are well regarded by family, friends and work colleagues for your courteous, caring and supportive nature and your community service. They also refer to the great shame, regret and remorse you have expressed for your offending.
25On the psychological evidence tendered, I accept that your own sense of self is at odds with how others see you. It is not unusual in cases of this nature, however, that offenders feel isolated.
26The offending is objectively very serious. There is a major public interest in protecting children from sexual exploitation and abuse. Your offending comprised a calculated course of manipulation and exploitation of vulnerable children for your own sexual gratification. The existence of cyber space provides a place where children can be manipulated into inappropriate sexual behaviours beyond their maturity. There is a presumption that this conduct causes harm to children. The principles of general deterrence and denunciation are the prominent sentencing factors.
27Notwithstanding your positive personal characteristics, specific deterrence is not eliminated but may be moderated. Your moral culpability is high. You are well educated, had the benefit of a close, loving and supportive family and, from your own statements within the material, knew what you were doing was very wrong and could destroy your life.
28When you were challenged on one occasion by a child, you said that you did not care. Whilst the period of offending was relatively short, it occurred frequently and persistently. Seven of the children are known to be as young as 12 to 14, two of them were aged 12. All 17 children were under 16. You worked at a primary school and undoubtedly would have been well aware of the vulnerability of children and the need to protect them, including from themselves.
29Whilst there are some marginal differences in the precise detail of factual circumstances in the offences for sexual activity with a person under 16, the gravity of offending is essentially the same: encouraging the victims to expose themselves and masturbating in front of them for your perverse gratification. The main distinction being that in seven of the instances, the age of the victim is identified and in Charges 9 and 15 the victims were aged 12.
30The production of child abuse material is serious because recordings can survive long after the live sexual activity itself, have the potential to be traded and contribute to the child pornography market and may provide ongoing harm to a victim by potential exposure to others, upon them becoming aware of the recording. An example is a threat to one of your victims to leak a video if she continued to block you.
31The grooming offence is serious because of the potential to lead to physical sexual engagement with the victim. The intention of the internet communication is making it easier to procure the recipient to engage in prohibited sexual activity. In the present circumstances your manipulation extended to telling the victim, who had said that she was 13, that you wanted to kiss her and detailed how you would kiss her. Whilst there is no presumption of harm in this instance because the victim was in fact an undercover police operative, the offending is not in itself any less serious because of your belief in whom you were communicating with.
32The transmission of indecent material is also serious in your case. In one instance, the victim said to you, 'you are 20 and I am 13.' You replied, 'I don't care.' To which she replied, 'I do.'
33In sentencing on Charge 1 on the indictment, in accordance with s.16BA of the Crimes Act 1914 (Cth) I have taken into account your admission that on 24 January 2020, you did possess or control child abuse material obtained or accessed using a carriage service contrary to s.474.22A(1) of the Criminal Code (Cth).
34In considering totality, I have considered the matters set out in the provisions of s.16A of the Crimes Act 1914 (Cth) and, in particular, s.17A of that Act. I have also taken into account the provisions of the Sentencing Act 1991 (Vic), in particular the guiding principles set out in that Act. I have also taken into account the principles set out in the authorities referred to by both counsel on the plea, allowing for the particular circumstances of this case. In making the orders for cumulation that I have, I have endeavoured to strike a balance that does not offend the principle of totality or create an unjust outcome. I have also considered the Court of Appeal decision in the case of DPP & DPP (Cth)v Swingler [2017] VSCA 305 for the assistance that authority provides when considering the difficulties in structuring sentencing intentions in combined State and Commonwealth sentences.
35In mitigation, I have taken into account the matters urged on your behalf by your counsel, including:
· your plea of guilty and the early stage at which it was entered - I accept that you have demonstrated genuine shame and remorse and subjective acceptance of responsibility by your expressions to others and by immediately seeking and maintaining appropriate counselling, and the objective utilitarian benefit of the plea of guilty should also be applied;
· your early cooperation with investigation officials - your assistance in providing police access to your digital records prevented otherwise difficult and time-consuming forensic investigation, and resulted in further charges;
· your lack of any previous offending of any nature;
· your relative youthfulness, being aged 23 at the time of offending and now 25;
· your objective immaturity and deficits in interpersonal and social skills;
· your history of regular and continued full-time employment, which reflects your capacity for commitment and therefore prospects of rehabilitation;
· the care and support you have from your family;
· the commitment that you have already made towards rehabilitation by your voluntary admission into psychological therapy and the sex offender program;
· whilst your current emotional distress is reactionary to your current circumstances, I accept that its intensity can be considered in the context of your prospects of rehabilitation and that you have developed insight into your offending and are deeply ashamed;
· your prospects of rehabilitation which, notwithstanding the clinical diagnosis of risk, I accept are reasonable given your better qualities, your application to therapy and otherwise previous law-abiding life; and
· the level of volume of material of child abuse material can be considered as being in the low range of culpability for offences of this type - whilst the absence of significant material in the high levels of categorisation does not minimise the objective gravity of possession or access of lower levels, the assessment of the material is to be considered in the context of the offending as a whole in order to determine the objective gravity.
36On balance, in the particular circumstances of this case, I am not persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison and after having considered all other available sentences, I am satisfied that no sentence other than one of imprisonment is appropriate.
37Mr Mokdissi, I will now pronounce your sentence.
38On Charge 16, the State offence of produce child abuse material, contrary to sub-s.51C(1) of the Crimes Act 1958 (Vic), you are convicted and sentenced to 12 months' imprisonment.
39This sentence commences today.
40On each of Charges 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15 and 17 of use a carriage service for sexual activity with a person under 16 years of age, contrary to s.474.25A(1) of the Criminal Code (Cth), you are convicted and sentenced to 30 months' imprisonment.
41Each of the sentences on Charges 1, 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13 and 17 commences three months after the commencement of the sentence on Charge 16.
42The sentence on Charge 9 commences 12 months after the commencement of the sentence on Charge 1.
43The sentence on Charge 15 commences 12 months after the commencement of the sentence on Charge 9.
44On Charge 14 of use a carriage service to groom a person believed to be under 16 years of age for sexual activity contrary to s.474.27(1) of the Criminal Code (Cth), you are convicted and sentenced to 24 months' imprisonment.
45The sentence on Charge 14 commences 12 months after the commencement of the sentence on Charge 15.
46On each of Charges 18, 19 and 20 of use a carriage service to transmit indecent communication to a person under 16 years, contrary to s.474.27A(1) of the Criminal Code (Cth), you are convicted and sentenced to 15 months' imprisonment.
47The sentence on Charge 18 commences 12 months after the commencement of the sentence on Charge 14.
48Each of the sentences on Charges 19 and 20 commences three months after the commencement of the sentence on Charge 16.
49The total effective sentence over all charges is five years and six months' imprisonment.
50The total effective sentence for the Commonwealth charges is five years and three months' imprisonment.
51I order that you serve a period of three years' imprisonment on the Commonwealth offences before being eligible for parole.
52The effect of the sentence is that:
(a)it will entail a period of imprisonment of not less than the non-parole period, which is three years and three months from today, and if a parole order is made releasing you from prison on parole, it will entail a period of service in the community, called a parole period, to complete the service of the sentence; and
(b)if a parole order is made releasing you from prison, the order will be subject to conditions; and
(c)the parole order may be amended or revoked; and
(d)the consequences if you fail, without reasonable excuse, to fulfill those conditions are that your parole may be revoked and you may be required to serve the full term of your sentence.
53I declare that the sentence of imprisonment that I have imposed commences this day and pursuant to s.16E of the Crimes Act 1914 (Cth) and s.18(4) of the Sentencing Act 1991 (Vic) I declare that the period of 11 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
54I note that the non-parole period will expire on 7 July 2024.
55There is a further matter to which I need attend. The charges to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004 (Vic), and by reason of you being sentenced for these offences, you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
56Pursuant to s.50 of that Act, I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case is for life.
57My associate will mail to the prison for you the Notice of Reporting Obligations form which I have already signed. I formally waive any requirement that you sign the Acknowledgement that you have received that form.
58Pursuant to s.6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, the sentence that would have been imposed is a total effective sentence over all charges of 8 years' imprisonment with 5 years to be immediately served.
59Now, that concludes my sentencing remarks. I will ask counsel to remain after I leave the Bench to give time to consider the sentencing remarks and the way the sentence is constructed. All of us are aware that there is complexity with these matters and there may be some questions or submissions that need to be made.
60MS BRECKWEG: Yes, just as a starting point, as Your Honour is aware, for the State there is a requirement for a separate sentence and non-parole period. Is it Your Honour's intention to impose a straight sentence of 12 months or is it a sentence of 12 months with a non-parole period of three months?
61HIS HONOUR: Just a straight sentence. Does that clarify that?
62MS BRECKWEG: Yes.
63HIS HONOUR: I thank both counsel for your extremely valuable assistance in providing the submissions you have, both written and oral, and in particular the detail that you went into to assist me in structuring the sentence which is exceedingly complex by virtue of the two legislative regimes that are involved.
64MS CASEY: Yes, Your Honour.
65MS BRECKWEG: As Your Honour pleases.
66HIS HONOUR: Thank you.
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