Director of Public Prosecutions v Ozham
[2015] VCC 1509
•23 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00784
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASIYE OZHAN |
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JUDGE: | Her Honour Judge Patrick | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 October 2015 | |
CASE MAY BE CITED AS: | DPP v Ozham | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1509 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms C. Sedgwick | |
| of Public Prosecutions | ||
| For the Accused | Mr D. Gibson |
HER HONOUR:
1 Asiya Ozhan, you have pleaded guilty to two charges of sexual penetration of a child under 16 (Charges 1 and 2) and one charge of persistent contravention of a family violence intervention order (Charge 3). The maximum penalty for sexual penetration of a child under 16 is ten years’ imprisonment. The maximum penalty for persistent contravention of a family violence intervention order is five years’ imprisonment.
2 The circumstances of your offending are set out in detail in the prosecution opening, which was tendered as Exhibit A. In brief, the circumstances are as follows. Your offending occurred between 20 September 2014 and 23 December 2014. In May 2014, the victim in this matter, whom I will call "K," was attending a community college, as he was not fitting into mainstream schooling. K had developed some learning difficulties and there were family issues but he had a close relationship with his mother. In about May 2014, K met you at the school. You were 26 and were attending the school studying for a community service certificate. You developed a romantic and sexual relationship with K.
3 Charge 1 of sexual penetration of a child under 16 is representative of four acts of penile-vaginal sex that occurred on one night between 20 September 2014 and 5 October 2014. You and K stayed together at a hotel. You paid for the room. You had brought alcoholic mixed drinks with you together with a vibrator and a chain and collar. K had condoms with him which he used. You and the victim had penile vaginal sex for about 45 minutes to an hour. You then had a shower and had sex three more times before falling asleep. You fall to be sentenced in respect of the first act of sexual intercourse.
4 Charge 2 of sexual penetration with a child under 16 is representative of two separate occasions of penile vaginal sex at Altona Beach, between 5 October 2014 and 30 November 2014. On two occasions, you and K had sex at the beach. You were wearing clothing and took beach towels and condoms. You fall to be sentenced in respect of the first occasion.
5 At about the end of July 2014, K told his mother about his relationship with you after she had seen sexually explicit correspondence on his Facebook page. K’s mother reported the matter to the police and K spoke to the police in early August 2014. On 7 August 2014, K’s mother participated in a pretext conversation with you where you admitted that you had been intimate with her son. K’s mother appealed to you as a mother. You were interviewed by police on 20 August 2014 and bailed with conditions. You admitted feelings for the victim but denied knowledge of his age. You continued to contact K regularly. A few weeks later, you and K decided that you would continue to see each other but hide your relationship.
6 You were further interviewed by the police on 12 November 2014. Child Protection workers applied for a Personal Safety Intervention Order against you on behalf of K. On 20 November 2014 you were served with a copy of that order. The order prohibited, amongst other things, contact with K or communication with him by any means. Charge 3 of persistent contravention of an intervention order relates to 1,837 text messages that you sent to K in the period 20 November 2014 to 23 December 2014. The text messages referred to your relationship and also to making sure that he deleted all the messages.
7 You were again interviewed by police on 19 December 2014 and 24 December 2014. You told police that you were troubled and did not want to sleep with K. You told police that you were aware that K had been self-harming and threatening to kill himself. You said to police that you had tried to stop contacting K but had been threatened, harassed and manipulated, despite the fact that you were the older person.
8 The prosecutor made application for disposal of various items and for the taking of a forensic sample from you. The making of those orders was not opposed.
9 K’s mother read her Victim Impact Statement in court. In that statement, she described her previous closeness to her son and the impact that your offending has had on her. She described her son’s depression and self-harm. She said that her son’s relationship with you, and the consequences of that relationship, have had a negative impact on their relationship. She also described the impact of visits to psychologists and court hearings, and the stress and anxiety of the criminal process.
10 K’s mother implied that prior to this offending, her son was happy. Whilst I accept that he had a close relationship with his mother, it appears that he had background and family issues, as well as learning difficulties, prior to meeting you. Clearly, he was a vulnerable child. I cannot conclude that your relationship is the only reason why he feels the way he does at present. It appears that he had difficulties before his relationship with you and the consequences of that relationship could only make things in his life more complicated, more pressured, and worse for him. The types of feelings described by K’s mother are reflective of the kind of harm that the courts regularly hear about resulting from sexual offending against children who are too young to consent to having a sexual relationship with an adult.
11 In sentencing you, I have taken into account your personal circumstances. Your personal circumstances were outlined by your counsel, and were also described in the report of Professor James Ogloff, clinical and forensic psychologist, dated 1 September 2015 (Exhibit 2). You are now 27. Your parents separated when you were two and, for a time, you moved between your mother’s home in Melbourne and your father’s home in Mildura. You are the youngest of five children. Your father had alcohol and gambling issues, and he has now returned to Turkey, where he was born.
12 You were essentially raised by your mother and older sisters. You had some difficulties during your teenage years with your mother’s new partner who was violent towards your mother. Very sadly, your best friend died when you were around 13 or 14. You began using cannabis at about that time, which caused family conflict. You also experimented with other drugs. You were experiencing feelings of depression and were unhappy in your relationship with your mother and at school. You ran away from home at 15 and lived for a while with one of your sisters. You began self-harming. You left school at 16. Your mother took you to a general practitioner because of your self-harming and you were given some counselling at that stage.
13 In 2005, when you were 16, you formed a relationship with a young man. This motivated you to be free of drugs. You became pregnant at 18 and your daughter was born in December 2007. You remained drug free for a year but then relapsed back into cannabis use. Your partner did not approve of your drug use and about six months before this offending you became separated under the one roof.
14 After your initial arrest in August 2014, you started on anti-depressant medication, which has had a positive impact. The time you spent in custody on remand was very difficult because of your separation from your daughter. Your partner has been supportive and has brought your daughter to see you. Your older sister has also been supportive of you. Your older sister cared for your child when you were in remand and can do so again.
15 On being bailed in March 2015, you returned to live with your partner and daughter. You are still on medication, which appears to be having some positive impact. Your counsel says that you are ashamed of your offending but accept the consequences and wish to return to education, with a view to doing positive work in the community.
16 Professor Ogloff assesses the risk of you re-offending as low. He says that there are a number of protective factors, including your current insight, partner support, care for your daughter, and success in education. Professor Ogloff says that your symptoms meet the criteria for a diagnosis of Depressive Disorder with Anxiety. He says that medication and psychological treatment had not been particularly effective, as you also have a “personality characterised by proneness to psychological distress”.
17 Professor Ogloff assesses you as being emotionally immature. He says you were regretful and embarrassed about this offending. He says you were clearly infatuated with K. He says that you have a generally caring nature, and appear to be very regretful of the offending and, in particular, of the effect that it had on K. He says that you have not said anything about having been treated unfairly or harshly and, in his experience, this is “refreshing and rare”. He says you show good insight into the nature and severity of your behaviour. He said the experience of incarceration has caused you to re-evaluate your offending and other important matters, such as your relationship with your partner. Professor Ogloff says that you would benefit from continued medical treatment for depression and, in particular, from psychological treatment to help you manage symptoms of depression, as well as the other psychological factors affecting you.
18 In sentencing submissions, your counsel submitted that it should be taken into account that the activity was consensual, which was not a mitigating factor but the absence of an aggravating factor. He said there was no abuse of a position of trust and that what had occurred was not a reflection of any predatory or calculated behaviour. He submitted that your emotional immaturity means that power imbalance, is less than it might normally be considered to be. Your counsel did not rely on there being any causal link between the offending and your mental health and did not rely on Verdin’s principles but submitted that your mental health provided a context for your offending. Your counsel also relied on your previous good character, your early plea of guilty, and your good prospects of rehabilitation. He submitted that the appropriate sentence would be a Community Correction Order.
19 The prosecutor, in sentencing submissions, submitted that the appropriate sentence could be imprisonment, followed by a Community Correction Order.
20 Your counsel said that imprisonment would be more difficult for you, because of your separation from your daughter. He said that it should be taken into account that you had completed a CISP program during your period on bail, that you had attended counselling and that your daughter had been back in your care. Your counsel also submitted that it should be taken into account that you are a first time offender and a relatively young offender with a low risk of re-offending.
21 The prosecutor, in sentencing submissions, agreed that you had expressed remorse and had made an early plea of guilty. He submitted that your offending was serious and had had a significant impact on the complainant and his family.
22 It is Parliament’s intention that children ought be protected from other people, and also from their own bad decisions. I accept your statement that you are not a strong person but you were considerably older than this child. You knew his age. You were aware of his vulnerabilities. A child of 15 is not emotionally equipped to deal with the complex nature of a romantic and sexual relationship with someone who is 26. You continued this relationship, despite being aware that K’s mother was aware of the relationship and had asked you to cease. You decided to hide your relationship from K’s mother and the authorities. You knew the police had been advised and you continued.
23 After an Intervention Order was served on you, you continued to contact K multiple times, on many occasions. Apart from this being very damaging behaviour in terms of your own interests, it was also engaged in with a total disregard to the safety and well-being of K. You engaged in this relationship for purely selfish reasons, to satisfy your emotional and sexual needs. You gave the boy alcohol and engaged him in sexual behaviour which was far more mature than a child of that age ought to be exposed to. I accept that, despite the age difference, there was a degree of mutuality in your relationship but it is very important that the courts impose sentences which are appropriate punishment and severe enough to make it clear that those who engage in sexual activity with children below the age of consent can expect to go to gaol. Hopefully, that will deter others from engaging in similar behaviour.
24 Even taking into account the matters in mitigation, I consider that a Community Correction Order alone would not appropriately reflect the seriousness of your offending and the need to protect children from similar offending. I consider that your prospects of rehabilitation are good and that specific deterrence need only be given modest weight in sentencing you.
25 You are entitled to a substantial discount for your plea of guilty. Your plea of guilty was made early and has saved the trauma and inconvenience of a trial. I also accept that your plea of guilty is an expression of your genuine regret and remorse for your offending against this child and the consequences for him and his family. It appears that you have been able to re-establish a relationship with your partner and your sisters. You have been able to engage in education, and have developed insight.
26 I consider that a period of time in custody will be more difficult for you because of your separation from your daughter. I have taken into account that the periods of time that you have spent in custody in respect of this matter are your first periods of imprisonment. You have no prior criminal history. You are a relatively young offender. You are immature for your age and have had ongoing mental health issues. Your rehabilitation is a significant sentencing consideration. For those reasons, I consider that an appropriate sentence is a sentence which combines a period of imprisonment with a Community Correction Order of substantial length.
27 You have been assessed as suitable for a Community Correction Order. I propose to sentence you to a term of imprisonment of 12 months to be followed by a Community Correction Order for three years. The special conditions would be that you perform 200 hours of community work, engage in assessment and treatment for drug, alcohol and mental health issues, and for programs to reduce re-offending. Any hours successful completed in relation to the treatment and rehabilitation conditions would be deducted from the work hours required. You would also be under the supervision of Community Correctional Services. I understand the core conditions and the conditions that I propose have been explained to you. Do you consent to the making of that order?
28 OFFENDER: Yes, Your Honour.
29 HER HONOUR: Thank you. Remain standing.
30 In my view, it would not be appropriate to impose an aggregate sentence in respect of all of the offending, because of the different nature of the offending in Charge 3, compared to the offending in the first two charges. In my view, it would be appropriate to impose an aggregate sentence in respect of Charges 1 and 2, as the subject matter of these charges forms part of a series of events of a similar nature.
31 Your persistent contravention of the intervention order, and the degree to which you contravened it warrants imprisonment for the purposes of denunciation, just punishment and general deterrence. Others in the community must understand that if they do not comply with intervention orders there will be serious consequences. Whilst some accumulation may be warranted, I propose to impose concurrent sentences of imprisonment in order to achieve the appropriate sentence, taking into account the sentencing considerations I have outlined and the principles of parsimony, totality and proportionality.
32 On Charges 1 and 2, you are convicted and sentenced to an aggregate term of imprisonment of 12 months, to be followed by a Community Correction Order of three years, with the conditions that I have outlined. On Charge 3, you are convicted and sentenced to six months’ imprisonment. The sentences of the imprisonment are to be served concurrently.
33 The total effective sentence is a sentence of imprisonment of 12 months, to be followed by a Community Correction Order of three years.
34 But for your plea of guilty, I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years.
35 I declare that you have served 138 days of this sentence by way of pre-sentence detention. I make the order for disposal of various items.
36 I make the order for the taking of a forensic sample from you. I make that order because of the seriousness of your offending and because the making of that order was not opposed. I consider it is therefore justifiable to make that order. I am required to warn you, Ms Ozhan, that when the authorities come to take the sample, they will come to take a sample by way of a saliva swab from your mouth. You are required to co-operate with them. If you do not co-operate with them they are entitled to use reasonable force and to take a blood sample. I am sure that you will co-operate with them.
37 As you pleaded guilty to two Class 1 offences under the Sex Offenders Registration Act (2004), your registration under that Act is mandatory. You will be required to comply with the reporting obligations of that legislation for life. Shortly, you will be given a document outlining your obligations under that legislation. You will be asked to sign a document to say that you have received that material.
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