Director of Public Prosecutions v Pacha

[2017] VCC 1469

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -16-00674

DIRECTOR OF PUBLIC PROSECUTIONS

v

BASHIR PACHA

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 October 2017
CASE MAY BE CITED AS:	DPP v Pacha
MEDIUM NEUTRAL CITATION:	[2017] VCC 1469

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. Sheridan-Smith
For the Accused	Mr S. Ginsbourg

Pages 1 - 16

 

 

HER HONOUR: 

1Bashir Pacha, you have pleaded guilty before me to two charges of using a carriage service to transmit indecent communication to a person under the age of 16 years, contrary to s.474.27A(1) of the Commonwealth Criminal Code.

2The facts underlying your offending are as follows.  At the time of this offending, which occurred in 2013 and 2014 you were aged between 21 and 22 years and the complainant was 15 turning 16 years about two weeks after the conclusion of this offending in February 2014.

3At the time of this offending, she was classified as a vulnerable young person who was regularly involved with the Department of Health and Human Services as a young person in need of protection and as I understand it, was also resident in a community residential unit throughout the time of these communications.

4The communication underlying both charges on the indictment took place via the private messaging service of Facebook. 

5On 21 October 2013, you contacted the complainant after meeting her, making a friend request of her on Facebook.  The communications between the two of you then proceeded on an on and off basis until 19 February 2014.  Charge 1 relates to a period between 21 October and 29 November 2013.  On 21 October 2013, the complainant sent you a private message stating, "Hey send me nudes."  You responded saying, "Send me your number."  And, "I'll pick you up, we'll fuck at mine."

6The complainant then wanted you to send her a naked picture of you first before she would give you her phone number and you ultimately sent her a picture of a penis saying, "Are you going to send me your number or not?"  Followed by, "I want to fuck, not cock teasing."

7Further messaging then occurred during which arrangements were sought to be made for the two of you to meet.  You making a further indecent communication, "I'll fuck you hard as mother fucker."  It essentially concluded with an arrangement to pick the complainant up outside the community residential centre where she was staying.  It is unclear what happened next, but in your record of interview with police, you said that the complainant did not turn up and this would appear to be confirmed by a message from you on
22 October, that is the next day, to the effect that, "You didn't come last night."

8There was then a gap of time until 2 November 2013, when you messaged the complainant saying, "Hi."  There appears to be no response.  Then on
12 November, you messaged the complainant again.  There was no response.  On 20 November, the complainant contacted you.  You asked her if she wanted to catch up.  She said that she could not and on 29 November 2013, you contacted the complainant messaging, "Oi, when you want to catch up?" 
That underlies Charge 1 on the indictment.

9Charge 2 relates to messaging between 4 and 19 February 2014. 
There appears to have been a break between the two of you as you had apparently moved to Shepparton for that period of time to take up employment.

10On 6 February 2014, you contacted the complainant, asked her what she was doing, she replying, "Nothing."  On 7 February, you contacted her and asked, "Do you want to come then?"  And further asked her if she wanted you to pick her up now.  The complainant said no, but said that she would be in, "Dandy," presumably meaning Dandenong that night, and told you to, "Inbox" her when you arrived.

11The complainant then called you twice.  You then contacted her, asking her to send nudes to which she replied, "Not now."  You then messaged the complainant asking if she liked to talk dirty and then an exchange occurred between you and the complainant, which I will not repeat in full but essentially it was messaging talking about, "Fucking hard."  In which it appears that the complainant was a fairly willing participant and ending in you again asking the complainant to send you, "Nudes."

12The complainant called you four times but you missed those calls.  You then contacted her and apologised for missing the call.  She asked you to pick her up, you asked for the address.  You said you would pick her up in an hour, and an hour later the complainant messaged you asking where you were.  You said you were ten minutes away.  You then texted her that you were there and then two hours later, you texted, "Oi, coming to root with me."

13On 11 February 2014, the complainant called you twice with no answer. 
You messaged her subsequently, asked her what she was doing.  She said, "Not much."  She called you with no answer.  You contacted her with the greeting, "Oi."

14On 13 February 2104, you messaged the complainant, asking her to, "Send me nudes."  She asked you where you were and further asked, "True what happened the other night, was that your girlfriend?"  On 15 February 2014, there was further communication between the two of you where the complainant asked you to pick her up from Dandenong Plaza.  You said you could not. 
You said you were at work.  You replied to her request to meet up later with,
"I don't know," and "we'll see."  Then there was a final series of messages where basically the two of you sent, "Love you," "love you back," and you saying you had to go.  The complainant again messaged you that day asking you to come to Dandenong Plaza.  You said that you did not think you can.

15On 16 February 2014, the complainant contacted you to see if you wanted to see her later that day.  You responding, "I don't know."  There was some other communication of little significance on 17 February from the complainant to you.  On 18 February, you messaged the complainant and again, there were discussions starting with the complainant saying, "What are you doing? 
Why are you not talking to me?"  You responding, "'Cause I'm busy," saying that you were not available later that night, that you could not leave the house and that you could not see her.  You called the complainant after she texted you, "I love you, babe." 

16There was a final message on 19 February 2014 where the complainant contacted you, messaging, "Hello."

17Police began an investigation in December 2014 and in February 2015, a search warranted was executed and you were arrested, as I understand it, at Melbourne Airport after returning from a visit to Afghanistan.

18In a record of interview, which was extremely lengthy, you made admissions that you knew the complainant, and met her on Facebook, that you communicated with her, that you had met her in the Dandenong Plaza on one occasion.  You said you did not know her age and did not ask her and admitted that on one occasion, you sent her an image of a penis.

19This matter had a somewhat tortured history through the courts.  You were charged with the offences to which you have pleaded guilty but other more serious offences, to which you were adamant you were not guilty.  Essentially, the course of the proceedings was that there was a committal in April 2016, in which only the informant and not the complainant was cross-examined. 
You were committed to trial and released on bail.

20In September 2016, the matter proceeded as a trial before
His Honour Judge Punshon, but the trial was discontinued after an indication was made that negotiations might result in a settlement of the matter.  It looked promising, but ultimately did not resolve by which time His Honour was engaged in another trial and the matter was then listed for trial in June 2017.

21There was a final directions hearing, in fact a number of final directions hearings as funding became an issue and negotiations were ongoing.  The matter was then to proceed as a trial on 13 June 2017.  You failed to appear and ultimately were arrested later that day.  Your bail revoked and remained in custody on remand for 22 days before again being placed on bail.

22Since that time, you have resided with your sister and brother in law.

23Eventually, on 5 June, this matter was resolved via negotiation.  An offer had been made by defence to plead to one charge of indecent communications.  This was refused by the prosecution but their counter offer of two charges, covering two specific time periods was then accepted and the matter proceeded thereafter as a plea.

24I now turn to your personal circumstances.  You were born in Afghanistan and it is unclear, as is often the case with persons involved in that part of the world what your actual birth date was, but is believed that you are now about 25 years of age.

25You had a very difficult start to life.  You were raised in Kabul until you were eight and then lived in Pakistan for eight years and came to Australia when you were almost 17, sponsored by your brother in law and arriving here in December 2009.

26You mother died when you were six and you father in fact died before that but you told psychologist, Warren Simmons, whose report dated
21 September 2017 was tendered on the plea that you did not know the cause of his death.  Your mother suffered from bone marrow cancer, a disorder which is apparently common in your family.

27You had one older sister, Haneefa, who is eight years older than you and she was married at a young age and lived away from you.  Following the death of your mother, you spent two years living on the streets, begging for food and apparently avoiding the Taliban who were in control of the area where you lived.

28You were found by relatives who organised for you to travel to Pakistan where you stayed with other relatives.  You missed your parents a great deal and you were made to work by those relatives.  You were a child and because you had small hands, were dextrous at carpet weaving and were employed in that capacity as a child labourer in those years.  You also told
Mr Simmons that you were both verbally and physically abused in the two to three years you worked with them.

29Fortunately for you, one day you saw your sister on the street and she took you immediately to live with her.  You described this as a very positive move as your sister was very loving and supported with you.  Her husband, Mohammed, had already left for Australia and was living there with the aim of sponsoring both his wife, your sister, and you to Australia. As I have said, this occurred in December 2009, until you were almost 17.

30You had no formal education in either Afghanistan or Pakistan.  You are
self-taught in relation to English, studying an hour a day when you arrived in Australia.  You can speak English reasonably well.  In fact, this is very much to your credit, Mr Simmons stated, "His grasp of English during the interview suggested he had done quite well in regard to that," and that is well done,
Mr Pacha, that is a hard thing to do.  It also shows that you must be a fairly intelligent man, something to think about.

31When you came to Australia, you lived for several years with your brother in law and your sister.  They lived in Hampton Park.  Your brother in law has his own rendering business and you were employed by him for several years until about 2014, when the business suffered some reversals and your brother in law could no longer afford to employ you.

32Thereafter, you left home and lived in a number of share houses in Dandenong.  Your brother in law gave evidence on the plea that during that time it was difficult for he and his wife to contact you.  He and his wife worried about the life you were living.  They were worried about you drinking alcohol.  They were worried about you smoking cannabis.  He said they tried to talk to you about this, that you would say, "Yes, yes," but he did not believe that you were taking on board what they have to say.

33You told Mr Simmons that between 2009 and 2012, that after being introduced to alcohol, you started drinking every night about 6 to
12 stubbies and that it helped you to, "not feel anything."  He said you did have some troubles unsurprisingly adjusting to life in Australia.

34You realised over time this was not helping you and you stopped drinking after about three years as you found no point in it.  You also, for a period of time after arriving in Australia, began smoking cannabis as other friends that you met and for several years, you smoked every night.  Again, you said you stopped using this drug as it did not do much for you.  You said you had tried methamphetamines once, but it made you sick. 

35At the time of this offending, you were still living at home.  You were in a relationship with your current partner, but this is appears to have been problematic.  It has been ongoing for about four years.  It had its ups and downs.  The relationship again broke down when you were remanded in custody after failing to appear on bail, but appears to have righted itself.

36At the time that you were interviewed by Mr Simmons, you told him you were sleeping all the time, you did not leave the house.  You said that since the matters had resolved, you were feeling better.  By this stage, you had entered a plea of guilty to these charges.  You felt more energetic, you had more motivation.  You told me from the dock in court that while there were ongoing negotiations about your plea to these charges, you felt extremely stressed.  You were embarrassed about the charges, you felt that some of the more serious charges from what I understood you to say were unjust, but you agree that the charges to which you have pleaded guilty were appropriate and that was obvious given that they arose from the text messages that you sent to the complainant, but you were extremely stressed about the more serious charges in this matter that you faced.

37You have made some attempts to find work, but probably have not followed through as energetically as you could have and have essentially remained unemployed since you stopped working for your brother in law.

38You do have some prior criminal history, although not terribly much. 
On 21 November 2014, you were placed on a 12 month community corrections order for drink driving and failing to answer bail.  You were ordered to perform 30 hours of unpaid community work.

39You were breached on that order on 13 January 2016 for driving whilst disqualified and failing to answer bail and the order was cancelled and you were placed on another order for 12 months.

40You breached that order a second time, this time not by further offending but by failing to complete the conditions of the order and to comply with the order and yet again, you have been placed on another community corrections order for a 12 month period with work hours to be completed.

41I understand from what your counsel has told me, what you told Mr Simmons and what you have told me yourself that to some extent, your failure to abide by conditions arose from a sense of stress and hopelessness about the current charges.  I accept that to some extent, Mr Pacha, I accept that that has been very stressful for you.  I do say you could have done a bit better.  Your situation appears to have been improved since being released from custody in June of this year.  You have returned to live with your brother and sister in law. 
Your brother, Mohammed, who I found to be an impressive witness gave evidence and regards you and your partner, as she lives there as well, as family.  Your partner is six months pregnant.  You are both very excited about the birth of this child.  You are relieved that these matters have been resolved and that this offending no longer hangs over you and I regard you in many ways as having good prospects of rehabilitation.

42I am satisfied you are not a person with alcohol or drug problems.  I do think you might have some psychological problems arising from your difficult childhood, arising from losing your parents.  Can I ask you this, Mr Pacha, do you have to attend to psychologists?

43OFFENDER:  No, ma'am.

44HER HONOUR:  I am sort of departing from sentencing here.  Do you think that might be a good idea?

45OFFENDER:  No, ma'am.

46HER HONOUR:  No?  That is because you are man.  Men never want to do therapy.  They usually say, "I don't want to go to therapy."  I saw you.  You were in tears when I was talking about your childhood.  You had a very difficult childhood.  You had a very hard time.  You were a street child. 
You had relatives who abused you.  You lost your parents when you were very young.  You had a very hard time, am I right?

47OFFENDER:  Yes.

48HER HONOUR:  What can happen when you have those sorts of problems when you are a child is that the emotion that you felt from the time that you were a little boy can stay with you.  It can make you feel miserable.  It can make you feel down more quickly.  I think it would be a good idea if you saw a psychologist.  You do not want to, do you?

49OFFENDER:  I don't but I will accept it for the best.

50HER HONOUR:  Well can I add ‑ ‑ ‑ 

51MS SHERIDAN-SMITH:  You can add conditions of the ‑ ‑ ‑

52HER HONOUR:  I do not think I can.

53MS SHERIDAN-SMITH:  It is a question of monitoring and so forth as well.

54HER HONOUR:  Yes, I know it is.  Look, I cannot.  I am not going to make it a condition but it is not easy having babies and your relationship with Paige is up and down.  You have been very stressed about these charges.  It is up to you.  In a moment, I am going to explain to you the order I am going to put you on.  You are not going to gaol.  But you may find that you need some help. 
Are you listening to me too, Mr Mohammed, do you think I am right?

55VOICE (from the body of the court):  Yes.

56HER HONOUR:  Do you think he could do with some psychological help, what do you think?

57VOICE (from the body of the court):  Um I don't know.  Whatever you think is the best.

58HER HONOUR:  I cannot make him.  I am not going to make him but I would like that idea to be out there for you to have a think about, both of you.

59VOICE (from the body of the court):  Yep.

60HER HONOUR:  There is no shame in this.  This court has many, many people from the Middle Eastern countries who have suffered great trauma.  We have many people from the Hazara Tribe in Afghanistan.  They suffer enormous persecution.  They have lots of emotional problems.  You could well have some emotional problems, Mr Pacha, no shame in it.  You understand me?

61OFFENDER:  Yes.

62HER HONOUR:  All right.  You just have a think about it.

63In any event, I regard your prospects of rehabilitation to be of a much better quality now that these matters have been resolved, now that you are living in a house with the great support offered by your sister and brother in law.

64Taking all these matters into account and other matters, which I will detail in a moment.  I am satisfied that the court does not need to deal with you by way of a term of imprisonment to be immediately served.

65I accept that you probably did not appreciate how relatively young the complainant was.  Do you understand what I mean by complainant?

66OFFENDER:  Yes, ma'am.

67HER HONOUR:  All right.  The young lady.  I accept she was a vulnerable young woman who probably presented as more sexually mature than she was. 
That is no excuse.  It is very important that you remember that in this community, with girls under 16, it does not matter whether they agree or they do not agree, they are felt to be too young to make sensible decisions about sexual activity.  They may make very foolish decisions about it.  They may think they are old enough.  This is a young woman who is not living with her parents, who is being looked after by the state.  She does not have the protection of good family as you have and she made a decision to involve herself with an older man.  The law says the older man is responsible in this situation.

68Do you understand that very clearly?

69OFFENDER:  Yes, ma'am.

70HER HONOUR:  However, at the time of this offending, the age gap between you was relatively small.  This was not classic predatory offending in that you did not seek her out sexually.  She approached you.  It is not an excuse however.  The offending had ceased, and it appears to have ceased prior to police intervention, when the complainant was only two weeks off the age of 16. 

71I agree that the scope of the offending as revealed by the prosecution summary based on the messaging between you is at the lower end of seriousness of offending of this kind.

72For these reasons, I have decided and I note the prosecution does not disagree with this conclusion, to deal with you not by a sentence of imprisonment, but by placing you on a recognisance to be of good behaviour.

73On Charge 1, you are sentenced to a term of imprisonment of six months, which will begin today, but you are not going to gaol, do not worry.  Six months' which begins today, 12 October 2017.

74On Charge 2, you are sentenced to six months' imprisonment which will begin on 12 January 2018.  That gives a total effective sentence of nine months.

75However, I am going to order that you be immediately released upon entering into a recognisance of good behaviour.  That will last for a period of 15 months.  Now, what that means is this, it means that I have sentenced you to goal but I am saying you do not have to go to gaol, you are going to be released today but you have to promise not to commit any offences or get in any trouble for the next 15 months.

76If you commit another offence, do you understand what I am saying?

77OFFENDER:  Yes.

78HER HONOUR:  If you get into trouble again, you will be brought back before me and I will make you serve that nine months.

79OFFENDER:  Yes.

80HER HONOUR:  Do you understand that?

81OFFENDER:  Yes.

82HER HONOUR:  Can you explain to me what you think I said to you?

83OFFENDER:  I cannot make any further offences.  If I do, I will be immediately gaoled.

84HER HONOUR:  Imprisoned for nine months.

85OFFENDER:  Yes.

86HER HONOUR:  And that will be the situation for the next 15 months.

87OFFENDER:  Yes.

88HER HONOUR:  Mr Ginsbourg will explain it to you more, but that is the situation.

89OFFENDER:  Sure.

90HER HONOUR:  I am going to place a surety of $1,000.  You do not have to pay that now.  You only have to pay it if you get into trouble with the police in the next 15 months.

91OFFENDER:  Yes.

92HER HONOUR:  Does that make sense?

93OFFENDER:  Yes, ma'am.

94HER HONOUR:  Have a seat, sir, thank you.

95Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to an effective term of imprisonment of 14 months and order that you enter a recognisance to be of good behaviour for a period of three years.

96MS SHERIDAN-SMITH:  The only other issue is whether or not Your Honour should make as a condition of the recognisance release order a condition that he undertake the sexual offenders behaviour program.

97HER HONOUR:  I do not think so.

98MS SHERIDAN-SMITH:  Which I think it is a little too short in any case, is my understanding.  I am not sure where that stands anymore.

99HER HONOUR:  It probably is but I do not know that it is required at this stage.  It just has not got that aspect of as I said predatory behaviour and interest in underage girls that might warrant that.

100MS SHERIDAN-SMITH:  I understand Your Honour's position and all I point to is in my submissions, I think I referred to Mr Simmons' report where it seems that he was seeking the motivation for the offending seems to be to just explore as much sexual experience as he could get.

101HER HONOUR:  Yes.

102MS SHERIDAN-SMITH:  It is a little speculative in my submission, Mr Simmons reporting on this particular issue but there is not really anything else I can point to, to assist.

103HER HONOUR:  As far as I am concerned, given the way the Sex Offenders Register is structured and given the way the Sex Offenders Program is structured, it is essentially around preventing deviant sexual attraction to underage children.  I do not see any sign of this.

104MS SHERIDAN-SMITH:  Yes, Your Honour.

105HER HONOUR:  I certainly see that he is 17, he is out and about and exploring in a way that is not surprising given the culture that he came from and the culture that he has come into.  Sexual exploration is very much a feature in my view of that age group.

106MS SHERIDAN-SMITH:  Yes, Your Honour.

107HER HONOUR:  I do not see it as anything more than that.

108MS SHERIDAN-SMITH:  Thank you, Your Honour.  We've just otherwise got the pro forma for the recognisance release order that my instructor has filled out.

109HER HONOUR:  Thank you.  That is helpful.

110I have to place you on the Sex Offenders Register for a period of 15 years. 
I have no choice, the law says I must do this.  Mr Ginsbourg will explain what that means.  Thank you, I will sign this and I will get you to sign this as well, Mr Pacha, thank you very much.

111I thank counsel very much for their assistance.  Good luck, Mr Pacha.

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