Director of Public Prosecutions v Muqadas

[2014] VCC 610

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02092

DIRECTOR OF PUBLIC PROSECUTIONS
v
JAN MUQADAS	Accused

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JUDGE:	His Honour Judge Parsons
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 April 2014
CASE MAY BE CITED AS:	DPP v Muqadas
MEDIUM NEUTRAL CITATION:	[2014] VCC 610

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Moore	OPP
For the Accused	Ms Caruso	Robert Stary Lawyers

HIS HONOUR: 

1       You can remain seated, Mr Muqadas and Mr Interpreter.  You, Jan Ali Muqadas, have pleaded guilty before me to two counts of sexual penetration of a child under 16.  These crimes arise out of circumstances explained in the opening Exhibit A.  In brief compass, it concerns a complainant then aged 15 when you were aged 25. 

2       On 19 March 2012 you asked a person, Imran Dad, if he could find you a girl to have sex with.  You and the complainant met at the Vic Hotel in Shepparton where a room was booked and you had vaginal sexual intercourse with her.  You made no attempt to find her age.  After that meeting on 19 March you made a further contact with the complainant directly on 23 April.  You again met with the complainant in a room in that hotel and had vaginal sexual intercourse and again made no attempt to establish her age.  You were arrested on 16 May and interviewed and made various denials. 

3       There is no victim impact statement, as has been explained by Moore, but I have no doubt the victim suffered, given her age and circumstances.

4       As was pointed out, there are mitigating factors.  You have pleaded guilty.  This is the most significant matter, and the community and the witnesses have been spared the time and cost of a trial and the ordeal of giving evidence on your trial.  The sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.  Further, I take into account the circumstances of your plea and the difficulties of it, and I suspect it is most conveniently explained in terms of your lack of the English language.

5       I have been told a significant amount about your personal history and your circumstances in Exhibit 2.  I will briefly summarise, but do not pretend to be able to set out the great significance of your difficult personal background which is evident in Exhibit 2.  You are from Afghanistan and your family you described as illiterate.  Your father died in a motor vehicle accident.  Your eldest brother simply didn’t return from work one day in 2006/2007 and was presumed dead, and left you as head of the family.  Your mother and siblings still reside in Quetta in Pakistan in a rented flat.

6       You are an Hazara man.  In your province there is still fighting amongst the warlords and the Taliban.  Your family sold their only asset in order to fund your escape from Afghanistan in January 2009, which was the family car.  In due course you followed that well-trod path from Karachi, Malaysia and Indonesia before arriving and being interned in Christmas Island for 70 days.  In due course you arrived in Australia, Geelong and then Shepparton, and that is where you have remained substantially since, involving yourself in the local Afghani community, and indeed with considerable sporting accomplishments there.

7       As is the tradition, you had an arranged marriage.  You met your wife when she was 12 and married her when she was 16 years of age.  You have a good relationship and four children – perhaps five children.

8       There are no prior convictions, are there, Mr Moore?

9       MR MOORE:  No, Your Honour.

10      HIS HONOUR:  I have read the other material tendered on your behalf, including the various community corrections order assessment reports.  I am on the balance satisfied the chances of your rehabilitation are reasonably good. 

11      As well as matters personal to you to which I have referred, including the question of rehabilitation, I must also take into account such matters as deterrence, and especially general deterrence, which is of importance given the young woman’s age at the time.  I do not believe specific deterrence looms large in the case.

12      I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your reoffending, which I find to be modest.  I take the matter of delay with respect to the matter coming before me into account in your favour as directed by the relevant authorities. 

13      I see that application has been made for an intimate forensic sample to be taken from you and you did not object to this. Ms Caruso will explain this in detail, but it amounts to a swab by use of a cotton bud inside your mouth.  Although you have consented, if you change your mind I must inform you the police may use reasonable force to enable that procedure to take place.

14      By virtue of my sentencing you today you become a registrable sex offender.  You will be required within 28 days to report your personal details and begin a regime of annual reporting required by the Act and be otherwise subject to the Act for the remainder of your life.  I will now hand you a form and ask you to sign it which will acknowledge that you have received this form which indicates your obligations.

15      Perhaps, Ms Caruso, you can assist in that regard as well.

16      MS CARUSO:  Thank you, Your Honour.

17      HIS HONOUR:  Yes.  Thank you.  This is without doubt a serious offence, but in all the circumstances, it seems to me a community corrections order is appropriate in a term of 18 months with all recommended conditions save the one with respect to drugs for reasons explained to me by Ms Caruso.

18      Yes.  I think that completes the sentence, does it not?

19      MR MOORE:  Yes, Your Honour.

20      MS CARUSO:  Yes, Your Honour.

21      HIS HONOUR:  Yes.  You will just need to sign that form.  All right.  I think Mr Interpreter and Mr Muqadas can step forward, officer.  Thank you.  All right, Ms Caruso, it’s not without some misgivings, as I say, that given I think you have been able to explain it all to him, I trust the community corrections order will work out well.  But he should well and truly understand the prospects of what happens if in default. 

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