Director of Public Prosecutions v Mozafarmoghadam

[2019] VCC 1982

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-01145

DIRECTOR OF PUBLIC PROSECUTIONS

v

MAHDI MOZAFARMOGHADAM

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 November 2019
CASE MAY BE CITED AS:	DPP v Mozafarmoghadam
MEDIUM NEUTRAL CITATION:	[2019] VCC 1982

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Schmitz
For the Accused	Mr P. Tiwana

HIS HONOUR:

1Mahdi Mozafarmoghadam, you have pleaded guilty to importation of tier two goods contrary to s.233BAB (5) of the Customs Act 1901, a Commonwealth Act. The particulars pertain to intentionally importing goods comprising of child pornography, the tier two goods in question, and you were charged on the basis of being reckless as to that fact, that is that the goods were tier two goods, goods the importation of which the Act prohibits unless approval has been obtained such approval not having been obtained in this case.

2The maximum penalty for the offence is ten years' imprisonment.  The particular offence of course can cover a wide variety of goods and circumstances of importation.  On 5 January 2019 you arrived at Melbourne Airport from Bangkok in Thailand.  You were intercepted by Australian Border Force officers and your baggage was examined.

3You presented an Iranian passport and incoming passenger card which did not declare in terms the goods you had imported.  A mobile phone and a laptop were located.  Using your fingerprint the officers began to examine your phone and did not detect prohibited content therein.

4When the screen locked on the mobile phone you refused to provide the passcode for examination and you refused to provide the password to unlock your laptop on the basis that the computer contained intellectual property relating to your work as a software engineer.

5Later you claim the laptop contained private photos of your girlfriend and that was the reason to decline to provide the code.  Digital forensics at the behest of border force later examined the two electronic devices mentioned.  A forensic examination conducted on 30 January 2019 was unable to examine the phone.  However, the laptop was able to be examined.  It contained relevant material.

6Officer Weatherly, a digital forensic investigator with border force provided an updated statement on 19 November 2019 in effect at my request.  His original statement stated that he had assisted another officer to access data from a laptop during which he had located within the user folders in a folder entitled 'CB' what he believed were images of children engaging in what he termed sexual activities.

7In April 2019 he said he finalised a report containing references to the files which had been reviewed and placed into the five relevant categories which are part of the child exploitation tracking system CTS scale and which usually has six categories with the sixth being animated or virtual category inapplicable in this case.

8Mr Weatherly provided a second statement as a result of some queries that I raised during the plea about which I sought elucidation.  He produced an examiner's report dated 13 November 2019.  Mr Weatherly traces the steps or digital path which is followed to access files and folders to be found on the desktop as it is referred to, that is the primary graphic user interface which would appear and would be seen displayed on the screen.

9The items were readily accessible.  I note that the downloads file is the only file on the desktop which made it the only visible and sole folder on the desktop screen according to the depositions.  This downloads folder at this location on the desktop is where the folders and files accessed by and assessed by investigators were located.

10There were two files of interest.  There was one named 'downloads' and a second was a zip file named 'downloads-7Z'.  This latter file was created about 20 minutes after the downloads file was created in the digital path.  That date was 29 December 2018 for each of the folders with that file with the file itself being created on the same date at the same approximate time.

11Mr Weatherly notes that if the computer user had not been involved in the creation of the archive folder then without further information they would not be aware of the contents of this archive folder until they decompress the folder or open it.

12A folder, a program file called 'WIMRAR.exe' was run on 29 December 2018 to decompress the file contents.  The folders and files contained in the desktop location named 'downloads' were created on 29 December by decompressing the archive file downloads '7Z'.

13These files and folders were not marked as deleted.  Mr Weatherly could not say how the file '7Z' was transferred to the laptop.  He is unable to discount the use of the dark web, however he is not certain that the dark web has been used.

14I note that that is the explanation more or less that you provided upon your plea to the court that is that you had opened and downloaded this file from the dark web.  The browsers who access the dark web, Mr Weatherly states, are used to hide the true location of the user and give the user access to parts of the internet that regular internet users do not have access to, often linking it to illicit or illegal activities including the sale and sharing of child exploitation material, pornography generally, narcotics and weapons.

15What this examination can reveal is that you accessed at the folder level folders named 'CP, Wellington and Spitfire'.  The view icons window setting could have enabled you to view icons in order to see the contents of the folders without individually opening each file and it is unclear whether you have accessed individual files as the last access date for each file remains unchanged from when the file was created at the location.

16This in my view and to the standard required satisfy me that I should accept that you probably opened these three named files whether by small icons or at least visible, but only these out of the 11 contained in the folder and named after war time planes.

17Mr Weatherly refers to the examiner's report in his new statement.  Inspector Steward from border force stated in his statement that he viewed nine folders in the file pathway downloads and sampled images within them using a 10 per cent method and categorised the images against the description of the child exploitation tracking system.

18The folder labelled 'spitfire' contained 377 images files.  You sampled 39.  Most, some 30, were category one.  The remaining nine in the sample were in categories two to five with three images in category five.  Category one are depictions of children with no sexual activity with images showing underwear, nakedness, sexually suggestive poses and explicit emphasis on genitals.

19Category five shows sadism and humiliation images.  Category four are essentially images of penetrative activity between children and adults.  There was one such image.  Category three show non-penetrative sexual activity between children and adults including mutual masturbation and other sexual activities.  There were two such images.

20Category two shows no penetrative sexual activity between children or solo masturbation by a child.  There were three such images.  He also sampled images from the file 'Wellington'.  There were 399 images files therein.  He sampled 34 and found 17 images, category one images, four category two, three category three, six category four and four category five.

21I had the unfortunate duty to look at this sampling.  These images are wholly depraved and abhorrent.  Similarly the file 'CP' contained 3823 images.  Investigator, Paola, sampled this folder.  She found 273, the majority of the images, to be category one, and 32 images to be category five.

22This exercise is relevant only to an inference as to what could be surmised may have been available to you to view, though there is as I understand it no way of showing beyond access to these folders how many images you viewed and for how long or when.

23I must take therefore a position which is most ameliorating to you in relation to this aspect.  This is a matter relevant to the objective seriousness of the offending as going to the level of personal interest in the material.  The viewing of this material is relevant generally as going to your state of mind alleged by the prosecution which you do not dispute.

24All of those folders were imported.  Having viewed even one or a few from each of the three folders that you could have had no doubt what the files contained.  However, it is wholly possible that as you assert because of your history, your personal history, you were not only not interested in them, you were disgusted by them.

25I reasonably infer that the level of personal history in the material, coupled with the length of time possessed and the surrounding circumstances of their download, can reasonably lead to an inference that such level was low an assessment confirmed by the psychological assessment made.

26I should note that you did not profit from the offence, nor did you have it for sale or further distribution.  You departed Australia for Thailand on
20 December 2018 and returned on 5 January.  You must have downloaded these folders while in Thailand.

27The total of images of the download folders was 7648.  Based on the sampling I have mentioned 20 per cent therefore were the higher categories, four and five.  The vast majority, almost 70 per cent, were in the lowest category, category one.

28This is not mitigatory.  The images on this scale depict actions or sexual poses which are abusive and harmful.  These images are in seemingly permanent circulation.  Very few of them can be said to be innocuous and the age of the children encompasses very young victims up to mid-teens.  Objectively the material is quite revolting.

29It would appear that you had been in possession of them for some eight days.  The files however were neither encrypted nor deleted and easily accessible.  These factors may be consistent with the explanation of profit by you that you shut your computer and left them there before going out to drink and readying to leave a holiday.

30On 1 February you were arrested when you attended at the border force headquarters under the understanding that you were collecting the items which had been seized at the airport on 5 January.  You received legal advice and made no comment apart from confirming that your nickname was Serush with which you were known and which appeared on some devices.

31You were bailed.  During your plea it was asserted that you travelled on holiday to Thailand.  Whilst holidaying you drank alcohol every day.  Under the influence of alcohol on the evening of 29 December 2018 you decided to open a Christmas mystery box on the dark web.

32It was at no cost and you assert that you had no idea of its contents.  Its status as gratis could not be confirmed or rebutted.  You asserted through counsel that once you had downloaded the zip file into your desktop a number of folders were displayed.

33You opened the first folder and discovered the images within.  You opened another two and you saw they contained similar material.  You closed your laptop and went out drinking.  The images you left on the desktop were images which upset you as bringing to mind your memories of childhood abuse.  You did not view again.

34You assert you did not specifically search for this material.  The material was already arranged in the manner set out by the prosecution.  You did not disseminate or share an image and these were downloaded on the one occasion without payment notably and without peer to peer connection it would appear.

35You returned to your hotel and upon departing the next morning you packed the laptop in your luggage.  There is no evidence before me which can meaningfully again say any of these propositions and which appear plausible enough.

36There can be little doubt that as a software engineer your decision to go onto the dark web as it is called was foolish and misguided and disingenuous to say the least.  The dark web is a repository for all types of illicit material.

37Perhaps it is the case that mystery boxes can contain legitimate material like movies or games but I have no evidence as to this.  It seems naïve in the extreme to explore it in a seemingly innocent pursuit of entertainment.

38Nevertheless, the factual intentional importation remains reckless to its contents in fair recognition by the prosecution of your true state of mind.  This kind of material I repeat is insidious and has a wide and evil market.

39Such material is created by the abuse of innocent victims depicted can only appeal to the perverted.  This importation is a criminal mischief which must be deterred and punished.  I will take into account your plea of guilty.  It is entered at the earliest opportunity and will offer your sentence a reduction.

40I accept that the plea is an expression of remorse and has a utilitarian benefit of having avoided a criminal trial.  I do not agree with the prosecution that apart from the entry of the plea there is little evidence of remorse.  Remorse can be expressed in various ways.  It was expressed to the reporting psychologist, Pamela Matthews, an experienced psychologist, to those who wrote letters on your behalf and is the evidence also by your voluntary and prompt referral to counselling and therapy services to deal with your motivations for offending.

41It is however a difficult feeling to assess and although I accept that the plea is an expression of remorse that is all that I can say in relation to that aspect.  I take your personal circumstances into account.  You are an Iranian citizen, the holder of a skilled independent visa subclass 189, a permanent resident.

42Your current partner with whom you reside is also a permanent resident.  You do not have children.  You have no prior criminal history which is an important factor to your credit and have not come to the attention of border force prior to this matter.  There is nothing pending.

43You should understand that prior good character or even good prospects of rehabilitation are limited in these cases and given lesser weight than they would otherwise be.  The prevalent nature of these offences, the international nature of it, and the difficulty in its detection are all important factors motivating general deterrence as a primary consideration to provide the protection of children as a matter of paramount interest.

44You did not cooperate with police and neither the influence of alcohol or lack of commerciality in the possession are not mitigatory.  Nevertheless, your character prior to the offences remains relevant.

45I take into account your personal background.  You were born in Tehran.  Your mother was a teacher and your father was an intelligence officer working in the narcotics division of the Central Intelligence Agency.  When you were eight years old your father was posted to a location some thousand kilometres south on the island of Kish in the Persian Gulf.

46You went there for a year.  Your pregnant mother with you and your sister moved back to Tehran but your father remained and was there unfortunately murdered.  The case involving this death was well known both in Iran and internationally as I have noted in my own research into this matter.

47The family life suffered naturally as a result of this tragic event.  Your mother underwent an abortion and had a mental breakdown.  She was hospitalised and remained an inpatient for many months and as a result of this and a consequent lack of government support the family was split up.

48Your sister went to live with an uncle's family, you went to live with a friend of your maternal grandmother.  There the husband in that family was a drug addict who would sexually abuse you while you resided in the basement of his house.

49Eventually you returned to live in Tehran with another aunt where you were again sexually abused by a cousin on a few occasions.  Your mother was eventually released and you returned to live with her.  A bitter custody battle over you and your sister arose involving your paternal grandmother.  This and your abuse depressed you sufficiently for you to attempt suicide at age 10.

50You received no counselling and your mother was very angry with you.  Your schooling naturally was disrupted and the salacious circumstances of your father's death meant you were bullied.  You did however complete your schooling by age 17.  Your interest was in computers and programming. 

51Aged 20 you left Iran for Malaysia.  There you undertook a degree in communication and networking and graduated in 2014.  In 2016 you came to Australia.  You have known your partner since age 10 and in 2010 you embarked on a relationship.  You have lived together for seven years since 2012.

52She is a fulltime project manager.  Your mother and sister are in Tehran.  You have a good work history beginning with employment during your studies in Malaysia after your graduation in that country and in this country.

53Since 2017 you have been employed as a software engineer in Melbourne.  As a result of this offending as I have intimated you have sought counselling aimed at identifying and dealing with your past trauma, diagnosed as post-traumatic stress disorder and your current major depressive episode which no doubt refers to your current predicament.

54It was submitted that generally such conditions will render reclusion more burdensome, this reducing your moral culpability.  Although I accept that the impact of such disorders upon the burden of imprisonment this was not argued as a Verdins point and I disagree that it reduces your moral culpability.

55However, in my view, despite the abhorrent nature of the material, this is offending because of its circumstances which have quite particular are at the lower end of the scale where specific deterrence can be slightly moderated.

56General deterrence however is no doubt the primary sentencing principle to bear in mind and I do so.  Even without moderating such central principles my view is that a disposition which does not require immediate detention is appropriate in your circumstances, although a period of imprisonment is the appropriate sentence.

57The mechanism for achieving this exists in the Commonwealth Sentencing Scheme and I intend to adopt it.  You have protective factors of employment and more importantly a supportive partner who has herself struggled with some mental health issues whom you have supported.

58I accept this conduct is out of character for you, although drinking alcohol appears to have facilitated your possession of the material while on holidays overseas you assert that you do not drink while in Australia except on rare social occasions.  You have travelled alone and not accompanied by her.

59I accept such conduct is unlikely to be repeated due to this experience and that your chance of reoffending are low.  Your prospects of rehabilitation in my view are good.  The court received the report dated 10 October 2018 by Pamela Matthews, an experienced forensic psychologist.  She provided a background history, educational and employment history and a history of your relationships.

60As to your health she noted your attendance with a psychologist with sessions focussing on understanding your offending behaviour and your current mental state.  Her assessment on the severity of post-traumatic stress symptoms places you are the severe range, particularly with dissociation and suicidality.

61She made a risk assessment using RSVP, a well-known tool.  You do not meet diagnostic criteria or paedophilia or paraphilia.  You do have some issues with alcohol but as to other important markers you do not present as an active risk factor.  It is clear Ms Matthews considers your post-traumatic stress disorder which she outlines in detail at p.11 of her report as having played a role in your offending facilitated by alcohol use.

62The assessment confirms a low risk of similar reoffending.  I also received a letter of support from a co-worker at Potentiality, your place of employment.  Mr Shourtak writes that you are reliable, dedicated and helpful providing outstanding levels of service, professionalism and behaviour.

63Your partner and her sister have both written letters of support.  They have known you for some 20 years with your mutual families being very close.  They speak of your kindness and respectful nature, a supportive and generous partner.  I take these letters into account.

64The issue of deportation was raised during the plea.  A letter from migration lawyers outlining the prospects of such a process was tendered.  It advises that a conviction would probably found a ruling that you have failed a relevant character test which impacts upon you as the holder of a visa.

65Failing the test does not necessarily mean a visa will be cancelled.  An immediate custodial sentence would more likely lead to a visa cancellation.  I have read and understood the letter and its contents.  I cannot speculate on any future processes or the likelihood of deportation.

66This aspect is relevant either as its prospects may render incarceration more burdensome or because it may represent a further extra curial punishment.  Even if technically not an additional punishment at least a matter which increases the seriousness of the consequences of the sentence imposed.

67The prospect of deportation is a factor that may bear on the impact which a sentence of imprisonment will have on the offender both during any currency of the incarceration or upon your release.  I take it into account.  The letter from the migration lawyers seeks to quantify to an extent the risk of deportation.

68Whether that estimation is correct or not in my view that risk is one which would reasonably be seen as a hardship given that such deportation could result in you losing the opportunity of settling in Australia in the long term.

69I should add that during the course of the plea the prosecution had asserted that this prospect would represent minimal hardship and therefore not mitigate the sentence.  In part that was based on your age and time spent in this country, time also spent in Malaysia and the occasions it was said that you had returned to Iran which were said to be several.

70Although you have travelled to Iran you have never intended to go back there.  After the plea the prosecution conducted a proper review of the evidence in relation to your travel and conceded that you have not returned to Iran.

71In any event my disposition may impact upon your visa situation but its intent is primarily to adequately deal with the criminality involved in your offending and not with any prospects of deportation.  I have reviewed the cases which were referred to during the plea and many others in order to assess and apply current sentencing practices.

72In my view my sentence properly reflects these practices in your criminality having taken the above matters into account and the matters which I am required to take into account pursuant to s.16A of the Commonwealth Crimes Act.

73If you would stand please? On Charge 1 the appropriate sentence is a term of imprisonment for 11 months to be served by way of a recognisance release order which will involve immediate release pursuant to s.20(1)(b) of the Crimes Act I direct that you be released forthwith upon giving a recognisance in the amount of $3000 to be of good behaviour for a period of three years.

74I will include as condition of the recognisance release order that you must complete the Sex Offender Treatment Program given that this is not an order which falls under the auspices of the Community Corrections you will have to comply with that condition off your own bat, as it were, at your own expense, but I expect that at the conclusion of that recognisance order you will produce evidence that you have undergone and undertaken and completed such a treatment program.

75Further, the offence in which you have pleaded guilty is a Class 2 offence pursuant to the Sex Offender Registration Act and is a registrable offence. You will be therefore required to comply with the reporting conditions for a period of eight years. Those conditions are onerous and serious and any breaches of them may give rise to proceedings which can attract further penalties.

76Pursuant to s.6AAA of the Sentencing Act but for your plea I would have sentenced you to imprisonment for 14 months. Are there any other ancillary orders, Madam Prosecutor? I understand that there are recognisance forms. I note that you do not have an instructor but would you as a courtesy of filling those documents out in relation to that and I will sign it when it is appropriately done?

77MS SCHMITZ:  I think your associate - I did email some.

78HIS HONOUR:  I just reflected this morning that usually the Crown instructors prepare these documents when that order is made, but if you wish the court to do that I do not think there should be any difficulty about that, but I you want to have a go at it and then I will stand down and maybe the two of you can sort it out.

79MS SCHMITZ:  Thank you, Your Honour.

80HIS HONOUR:  Are there any other orders that are ancillary to these orders?

81MS SCHMITZ:  No, Your Honour.  The laptop was forfeited by consent so there is no other ancillary orders and no PSD.

82HIS HONOUR:  Mr Tiwana, in the meantime you can explain to your client and his partner was the upshot of that is.  I should say publicly that it is of the utmost importance that you understand that during this period of time if you either commit another offence either against the state or against the commonwealth you will be in breach of this recognisance and you will be brought back not only to be punished for that breach but you may be resentenced on these matters should that be appropriate.

83Do you understand?

84OFFENDER:  Yes, Your Honour.

85HIS HONOUR:  I will stand down.

86(Short adjournment.)

87HIS HONOUR:  I am sorry, Ms Schmitz, if I put too much of a burden at your feet, I am sorry.

88MS SCHMITZ:  Not at all, Your Honour.  We have worked as a team and confirmed the correct writing.  The correct order was sent to Your Honour's associate and that order just needs to be signed by Your Honour,
Mr Mozafarmoghadam and then the terms explained.

89HIS HONOUR:  Yes, that is fine.  It is best that we get the thing right to begin with rather than have to come back at some other time.  Mr Tiwana, perhaps the sex registration matters are fairly complex and the obligations arising under them are important to him to understand so if you would spend a little time and no doubt you will with him about that?

90MR TIWANA:  I certainly will be doing that.

91HIS HONOUR:  Also to re-emphasise what I said in relation to the recognizance.  This is an important aspect of it that he understands that he is under an obligation to the court to behave during that period of time.

92MR TIWANA:  Yes, Your Honour, I will explain that, thank you, Your Honour.

93HIS HONOUR:  Thank you both for your assistance.  Sine die.

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