Director of Public Prosecutions v Querishi (a pseudonym)

[2015] VCC 2012

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-02005

DIRECTOR OF PUBLIC PROSECUTIONS

v

MUTHANN QUERISHI (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	30 July 2015
CASE MAY BE CITED AS:	DPP v Querishi (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 2012

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 B. Moleta
For the Offender	Mr A. Halphen

HER HONOUR: 

1Muthann Querishi,[1] you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16 (Charge 1) and two charges of indecent act with a child under the age of 16 (Charges 2 and 3).  You have also pleaded guilty to two uplifted summary charges being Summary Charge 2 of contravening a family violence intervention order, and Summary Charge 4 of committing an indictable offence while on bail.

[1] Muthann Querishi is a pseudonym.

2The maximum penalty in respect of Charge 1 is 25 years' imprisonment.  The maximum penalty in respect of each of Charges 2 and 3 is ten years' imprisonment.  The maximum penalty on Summary Charge 2 is five years' imprisonment and/or a fine of 600 penalty units.  The maximum penalty on Summary Charge 4 is three months' imprisonment or a fine of 30 penalty units.

3The prosecution made application for the taking of a forensic sample from you.  The making of that order was not opposed. 

4The circumstances of your offending are set out in the Summary of Prosecution Opening, which was tendered as Exhibit A.  In brief the circumstances are as follows.

5In relation to Charge 1 of persistent sexual abuse of a child under 16, the victim was your eldest daughter, Maladh Querishi.[2]  The offending took place between 3 July 2008 and 31 December 2011.  Your daughter was between 11 and 14 years old at that time.  There are six specific occasions described and you are charged on the basis that on at least three occasions you took part in one or more of these acts.  That is sufficient to establish the offence of persistent sexual abuse of a child under 16. 

[2] Maladh Querishi is a pseudonym.

6The six specific occasions include you putting your tongue into the vagina of your daughter on two occasions.  On one occasion this occurred after you had shown her pornographic material on a laptop depicting a female calling a male "Daddy."  On another occasion you told her that if she let you do it, you would leave her alone.  You then engaged in oral sex on her.

7Two further occasions are described as you sexually penetrating your daughter by placing your penis into her anus.  On one occasion you first showed her pornography, you were both in your bedroom.  You then attempted to engage in a sexual position described by the victim as 69.  Your head was near her groin and your groin was near her face.  You licked her in the vaginal area.  You then changed position and inserted your penis into her anus.  That hurt her and she said to stop.  You stopped and masturbated yourself until you ejaculated on her face.

8On another occasion your daughter was asleep in your bedroom.  She woke to find you licking her vagina and anus.  You then put your penis in her anus.  That hurt but you still left it there for a while. 

9Charge 2 is a charge of indecent act with a child under 16 occurring between 1 January 2013 and 24 May 2014.  This is a representative charge and concerns another of your daughters, Nafeesa,[3] who was then 12 to 13 years old.  There are two occasions alleged in respect of this charge. 

[3] Nafessa is a pseudonym.

10The first occasion alleged is as follows.  Your daughter was getting a snack from the fridge. You came and hugged her from behind.  You were touching her on her vagina, legs and bottom over her clothing.  Your daughter said this conduct was frequent and opportunistic.  On another occasion she was on her computer.  You reached from behind and brushed the area of her vagina over her clothing. 

11Charge 3 is a charge of indecent act with a child under 16 and concerns your daughter Maysan.[4]  This act is said to have occurred between 1 January 2013 and 31 December 2013.  Your daughter Maysan was then ten or 11 years old.  You touched her on the vagina over her clothing. 

[4] Maysan is a pseudonym.

12Your offences came to light when your eldest daughter made disclosures to her mother on 25 May 2014.  The three victims spoke with police and disclosed your offending.  The same day a search warrant was executed, during which you made some admissions.  You were arrested and interviewed.

13In the interview you made some admissions in respect of your eldest daughter, but also made statements such that you did not force your daughter and that what occurred had been mutual.  You said you were lonely and stressed because your wife was having an affair.  You commented on your daughter's development and that she was a teenager and said, "You know, teenagers are like fine to get married proposals."  You said you did not know it was against the law.  You denied the offending in respect of your other daughters. 

14Summary Charges 2 and 4 concern your conduct after you were interviewed and in custody.  You were bailed on 11 June 2014.  You were served with a family violence intervention order which prohibited you having contact with your wife and your eight children.  Your bail conditions also prohibited you from having contact. 

15At 10.25 pm on the day you were bailed, you used a service station telephone to call your wife's mobile.  She did not answer.  You called again at 10.30 pm.  Again she did not answer.  Your wife saw the missed calls in the morning.  She spoke to the service station attendant, who told her that her husband had left a message that he was on his way home.  She was naturally terrified and called the police.  You spent the night in hospital and later attended a police station to get help to get property from your home.  You were then arrested.

16You pleaded guilty at the committal mention and the matter proceeded by straight hand-up brief.  Your plea was first listed in February 2015.  You then said you wanted to plead not guilty.  You changed lawyers and there were discussions.  You entered pleas of guilty to the charges on the current indictment and the summary charges on 24 April 2015.

17Victim Impact Statements were tendered from your first and second victims and their mother.  The Victim Impact Statement from your eldest daughter is particularly distressing reading.  She describes her feelings of fear, confusion, distress and lack of trust during the offending and afterwards.  She was clearly very courageous in coming forward.  This is a very difficult thing to do in such circumstances.  She is clearly also intelligent and determined.  It is to be hoped that these qualities will mean that with support, in time she will be able to recover from what you did to her. 

18Your second victim also describes her distress and lack of trust in men. 

19It is clear from your former wife's victim impact statement that you have also caused a huge amount of harm to your former wife.  She is, as can be expected, finding it extremely difficult to cope with what happened to her dearly loved daughters at your hands.

20In sentencing you, I have taken into account your personal circumstances.  You are now 40 years old.  You were born in Fiji to an impoverished family.  As a child, you were sexually abused and shown pornographic material on visits to extended family members.  You completed Year 11 at school and then were given a trade scholarship to study in New Zealand.  You studied for your trade and then studied a commerce degree but did not complete that degree. 

21You met your former wife in New Zealand in 1996.  You were 22 when you married and she was 16.  In 1997 you had the first of your eight children.  That year you moved to Brisbane.  You engaged in further studies and completed a Certificate IV in Aircraft Avionics.  You became an Australian citizen in 2002 or 2003.  You suffered an injury to your back at work and were off work for a period between 2004 and 2006.  In 2006 you returned to work as an aircraft maintenance engineer. 

22You and your wife were having marital difficulties and in 2007 you went back to New Zealand.  You only remained in New Zealand for six months and then returned to Australia, moving to Melbourne.  Since that time you have been on a disability support pension.  Your youngest child was born in 2013.  By 2008 you were the daytime carer of your children because your wife was working. 

23You have no prior criminal history.

24

Two reports were tendered from Elizabeth Warren, psychologist, dated

24 October 2014 (Exhibit 2) and 13 July 2015 (Exhibit 3).

25Ms Warren's first report says that it is appropriate to make a diagnosis of paedophilia, but you do not have any predilection towards sexual activity with children outside the family.  Ms Warren describes your offending situation opportunistic and says that you are at low risk for further sexual offending "as the offending occurred in unique circumstances."  At the time of the first report you were relying on your own very disturbed interpretation of your religious teachings which, according to you, meant that the worst sin in having sex with your daughter was that it constituted infidelity to your wife. 

26It appears by the time of the second report that that view had undergone some modification.   In her updated second report, Ms Warren says that there is no causal connection between the sexual abuse you suffered as a child and this offending.  She describes you as being contrite and remorseful and says that there has been a shift in your attitude.  You still maintain that your offending was, in part at least, a reaction to your weak and vulnerable state due to your wife's infidelity.  You suggest that this meant that you were vulnerable to the work of the devil.  You did say that you had previously tried to minimise your offending but always knew it was wrong.  That is clear from what you told your eldest daughter.  Ms Warren says that you now have a more rational view.  You have made further acceptance of your wrongdoing "albeit still more or less caused by a higher power."

27Ms Warren suggests that your rehabilitation needs to contain both religious and secular elements.  She says by the time of the second report there would be even less risk of you reoffending.

28Ms Warren says that on the second occasion she saw you, there was some reduction in your levels of depression and anxiety, although they still remain at the extremely severe level. 

29Ms Warren says that you do find support in your religious observances.  She says you are suffering difficulties in prison due to your distance from your family of origin and your mental health issues. 

30Your counsel, in sentencing submissions, relied upon a number of matters.  Your counsel said that your change for a period in respect of your plea of guilty was a result of confusion and that you should be regarded as having entered a plea of guilty at an early stage.  Your counsel submitted that you were remorseful and that your remorse was demonstrated by your plea of guilty, your "full and frank admissions" in the interview, your letter to the court and what Ms Warren said.

31Your counsel also submitted that it should be taken into account that this would be your first time in custody and that you would be serving your sentence in protection and a long way from your family.

32Your counsel relied on your lack of prior criminal history and your prospects for rehabilitation, submitting that you were at low risk of further offending.  Your counsel accepted that imprisonment would be the only appropriate sentence but that your offending was at the lower end of the serious range of this type of offending. 

33The prosecutor, in sentencing submissions, submitted that denunciation and general deterrence ought be very important sentencing considerations given that your offences involved sexual offending against children. 

34The prosecutor also submitted that the impact on the victims must be taken into account and that there were several aggravating features in your offending.  The prosecutor submitted that there should be some cumulation in sentence to reflect that there were three victims involved. 

35The prosecutor submitted that your offending was extremely serious and approaching the worst category and was at the serious end of the sentencing range for offences of this type. 

36Muthann Querishi, you have committed very serious offences against your daughters, particularly your offending against your eldest daughter, who was your first victim.  You are her father.  You are much older than her.  You took advantage of her youth and trust in you to introduce her to sexual activity of a very depraved kind.  You showed her pornography.  You offered her money or to leave her alone if she would comply.  You penetrated her in a way that was both painful and degrading.  You did not use condoms.  You took the opportunity, when you were supposed to be caring for her, to engage her in sexual activity.  Whilst there was more activity during certain years, the offending continued over a period of three years from when she was 11 until she was 14.  Your offending against her was the most gross breach of the trust she and your former wife had in you.  It was selfish and disgusting.  You wanted sex and took it from her together with her innocence and sense of safety. 

37You stopped your offending against her, but then could not resist the impulse to touch your two younger daughters in a sexual way.  Again, you took advantage of their youth and trust in you.  Instead of looking after them, you put your own desire for sexual gratification above any consideration for their feelings or potential harm to them. 

38Your attempts to contact your wife when you were bailed demonstrate an inability to comply with bail or intervention order conditions.  Again, you put your own needs before any consideration of the terms of the orders or welfare of your wife and children. 

39A sentence of imprisonment is clearly warranted for the purposes of denunciation, general deterrence and just punishment. 

40On the basis of Ms Lechner's reports, I consider that your prospects of rehabilitation are reasonable at best.  You have engaged in some rehabilitation courses in custody. There is some change in your attitude between reports but you still have limited insight into your offending.  I accept that you are prepared to engage in sexual offending treatment programs and are a person who can be educated, which suggests that your insight is likely to improve.  I accept that the risk of you reoffending is low, but consider that specific deterrence must be given weight in sentencing you to make sure that you understand that if you ever get into a domestic situation with young girls, you must control your impulses towards engaging in sexual offending, otherwise you will be punished very severely again.

41There are a number of matters I have taken into account in mitigation of sentence.  You pleaded guilty, and I am treating your plea of guilty as having been made at an early stage.  Your plea of guilty has considerable benefit in saving the trauma and expense of a trial.  I accept that your plea of guilty is an expression of your remorse.  Your remorse is also shown in that you made some admissions to the police, but I would not describe your admissions as full and frank.  At the time you spoke to police, you were minimising your offending and denied the offending in relation to your other daughters.

42It is my view that in your letter to the court and what you told Ms Lechner, you are still not making a full moral acceptance of your wrongdoing.  For example, in your letter to the court you only refer to doing something wrong in 2011 for which you are sorry and seek forgiveness, but your offending went far beyond that.  Also in that same letter you refer to your depression and reduced mental capacity at the time of the offending.  I do not accept that you were in a situation where your moral judgment was adversely affected by your depression.  I am of the view that you did know what you were doing was wrong and that you sought to justify it to yourself.  I accept that you are remorseful but to a somewhat limited degree.

43This is your first time in custody.  I accept that your time in custody has been, and will be, more burdensome because you are a long way from your family of origin.  I also accept that you are concerned about your elderly parents and that will make imprisonment more burdensome for you, as will your separation from your children.  Being in protection will also make imprisonment more difficult for you.  I accept that your depression and anxiety will make imprisonment more difficult for you and have mitigated your sentence to a degree to reflect that.  I note that there has been some improvement in your depression and anxiety and stress, and therefore cannot conclude that imprisonment will make those conditions worse. 

44You will be sentenced to a term of imprisonment on Charges 1 and 2.  Therefore, you will be sentenced on Charge 3 as a serious sexual offender.   

45

Pursuant to s.6D of the Sentencing Act 1991, community protection will be the principal purpose for the sentence on Charge 3. I do not consider it necessary to impose a disproportionate sentence for that purpose.

Section 6E of that Act requires the sentence on Charge 3 to be served cumulatively on the other sentences unless otherwise ordered.

46In fixing the sentences and degree of cumulation or concurrency, I take into account the principles of totality and proportionality.  I consider, in these circumstances, the principles of totality and proportionality do not require that the sentence on Charge 3 be served concurrently with the other sentences.

47I have taken into account current sentencing practices, particularly for the offence in Charge 1.  I have considered a number of cases and the statistics provided.  I note particularly what was said by the Court of Appeal in ED v The Queen [2011] VSCA 397. Both counsel made particular reference to this case. I consider that your offending is towards the serious end of this type of offending, especially because all the charges involved your daughters, the offending in Charge 1 involved your eldest daughter and occurred over a period of time and it included the activities I have described, but not as frequently as the offending that occurred in ED.

48In respect of the summary charges, they both concern your activities in trying to contact your wife after you were released on bail.  Because they are related conduct over a short period of time, I consider it appropriate to impose an aggregate term of imprisonment in relation to those two charges. 

49Can you please stand up, Mr Querishi?

50On Charge 1, persistent sexual abuse of a child under 16, you are convicted and sentenced to eight years' imprisonment. 

51On Charge 2, indecent act with a child under 16, you are convicted and sentenced to a term of imprisonment of ten months.

52On Charge 3, indecent act with a child under 16, you are convicted and sentenced to a term of imprisonment of six months.

53In respect of Summary Charges 2 and 4, you are convicted and sentenced to an aggregate term of imprisonment of two months.

54The sentence on Charge 1 is the base sentence.  Six months of the sentences on Charges 2 and 3 are to be served cumulatively on each other and on the sentence on Charge 1. 

55The sentence on Summary Charges 2 and 4 is to be served concurrently with the sentence on Charge 1.

56The total effective sentence is nine years' imprisonment.  You are required to serve six years and six months of that sentence before being eligible for release on parole. 

57I direct that it be entered into the records of the court that you are sentenced as a serious sexual offender in respect of Charge 3. 

58I declare that you have served 430 days of this sentence by way of pre-sentence detention.

59But for your plea of guilty, I would have sentenced you to a term of imprisonment of 12 years with a non-parole period of nine years and six months.

60You have offended in respect of one Class 1 offence and two Class 2 offences for the purposes of the Sexual Offenders Registration Act provisions.  That means you will be required to comply with the provisions and requirements of that Act for the period of your life.  Shortly you will be given paperwork which will set out your obligations in that regard. 

61I am making the order pursuant to s.464ZF of the Crimes Act 1958 for the taking of a forensic sample from you. I make that order because of the seriousness of the circumstances of your offending, the order was not opposed and the granting of the order is in the public interest. I consider that the taking of the sample is justified for those reasons.

62Mr Querishi, I am required to tell you that the officials will come to take a sample from you.  They will take that by a saliva swab.  You must co-operate with them.  If you do not co-operate, they are able to use reasonable force and can take a blood sample.  I am sure that you will co-operate with them.

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