Director of Public Prosecutions v Salih
[2017] VCC 1755
•20 November 2017
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.17-01309
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMAD SALIH |
---
JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2017 | |
DATE OF SENTENCE: | 20 November 2017 | |
CASE MAY BE CITED AS: | DPP v Salih | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1755 | |
REASONS FOR SENTENCE
---
Catchwords: Fail to comply with reporting obligations under the Sex Offenders' Registration Act, possession of child pornography
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M. Fisher | OPP |
| For the Accused | Ms H. Kelly | Doogue O'Brien George |
HER HONOUR:
1 Mohammad Salih, you have pleaded guilty to the following offences. Failing to comply with reporting obligations under the Sex Offenders Registration Act 2004 or SORA, and two charges of possession of child pornography.
2
The maximum penalty for failing to comply with reporting obligations is five years' imprisonment. In respect of child pornography, Charge 2, five years' imprisonment. The maximum penalty for this offence was increased from
1 December 2015 relating to Charge 3, the maximum penalty is ten years.
3 By way of background, on 2 July 2008 you were sentenced to two years' imprisonment with 12 month non-parole period for possession of child pornography and making child pornography. The circumstances of that offending are contained in Exhibit B and relate to possession of approximately 400,000 images and videos. You were placed on the Sex Offenders Register for a period of 15 years. On 25 March 2014 in accordance with your reporting obligations, you notified police that you had commenced using a particular email address.
4 As to Charge 1, failing to comply with reporting obligations, you used that email address on 17 December 2013, 14 January 2014, and 13 March 2014 to access a Russian based website to upload three images under the username, "Sam2014." Further on 20 April 2015 you used a different email address in correspondence with Google Play News. You failed to report to the Chief Commissioner of Police the use of that internet username and that different email address within seven days as required under your obligations under SORA. When interviewed on 15 May 2015, you denied knowledge of the username.
5 Charge 2, possession of child pornography. On 15 May 2015 a search warrant was executed at your home and a laptop, mobile phone and SD card were seized. A forensic examination of the laptop located video and image files identified as child exploitation material or CEM categorised in accordance with CEM categories of which there are six utilised by Victoria Police. Category 1 is CEM no sexual activity. Category 2 is CEM solo sexual acts between children. Category 3 is CEM adult non-penetrative conduct. Category 4 is CEM child adult penetrative conduct. Category 5 is CEM sadism, bestiality, child abuse. Category 6, CEM animated or virtual. On the laptop the following CEM was located. In Category 1, six videos and one image. Category 2, two videos. Category 3, seven images. And Category 4, three videos.
6 On 18 April 2016 when interviewed you denied any knowledge of this material and told police you had last used the laptop six to seven years ago.
7 Charge 3, possession of child pornography. During the investigation police located an image of a computer set up in a lounge room at your home with an external hard drive plugged into the front of the device. This led to a subsequent search warrant on 10 February 2016 where police seized the following. A WD hard drive hidden within the internal cavity of a printer on a shelf in the kitchen area, and a Seagate hard drive. Forensic examination of this material located 780,438 images and 119 video files identified as CEM on the WD hard drive, and 110 images on the Seagate hard drive.
8 Approximately 10 per cent of the WD images were categorised. This was an agreed representation of the material. The table in Exhibit A outlines the percentages of each category of images that were categorised and the number of total images that signifies the 750,000-odd images agreed. 53.9 per cent were Category 1, 4.1 per cent were Category 2. 6.9 per cent were Category 3. 11.9 per cent were Category 4. 1.5 per cent was Category 5. And 21.7 per cent was Category 6.
9 As to the videos, the amount in each category was Category 1, 14. Category 2, 3. Category 3, 1 Category 4, 17. Category 5, 3. And Category 6, 81. The total duration was 3 hours 47 minutes and 14 seconds.
10 The images located on the Seagate hard drive were categorised as follows. Category 1, 23. Category 2, 2. Category 3, 7. And Category 4, 78.
11 I have had available to me a sample of the child pornography material the subject of these offences and with the agreement of parties viewed it in my chambers. The images and videos on these devices depicted children between approximate ages of five to eight years engaged in penetrative and non-penetrative sexual acts with adult males and females in various stages of undress and bathing wear. Various examples of file names are included in Exhibit A. From the titles it is obvious the files contained CEM.
12 You were interviewed again a number of times as the investigation progressed. During your last record of interview on 30 May 2016, you denied possession of the CEM. You were charged on this date and released on bail.
13 You were born in Iraq and grew up in Mosul with your parents and five siblings. You had a very limited education and worked with your uncle as a spray painter. You were conscripted into the Iraqi armed forces at 18 years though you deserted after a few years, then were recaptured and sentenced to death. That sentence was later commuted, then you were pardoned and returned to the army. You then deserted again and lived with some Kurds in Northern Iraq. You were married in Mosul in 1990. You and your wife sought asylum in Turkey and lived there for a period of time. Your son was born there in 1996. Your family came to Australia in 1997 and you settled in Perth. You were granted citizenship in 2000. You separated from your wife and then both moved to Melbourne. You gained employment spray painting and fixing cars. I was informed that since separating you have led an isolated existence. You have limited social contacts, limited to those relating to your employment which has only been intermittent. You are otherwise on Newstart.
14 You have not established any other links or friendships in the community. You have little knowledge of the English language. Your responses in your interviews with police are more understandable given your social isolation and that you have not assimilated into the community or Australian lifestyle. I accept with these difficulties custody will be more difficult for you. And note that when you were previously incarcerated some of that time was spent in hospital as a consequence of an assault. You are hopeful of improving your English and getting other assistance regarding reintegration into society whilst you are in custody.
15 As noted above, in 2008 you were sentenced to a term of imprisonment of two years for similar offending. You have not seen your seen your son since that time. You did successfully complete your parole from that sentence, that is for a period of 12 months, but were not required to undertake any sex offender treatment. I was informed that you have no criminal history from Iraq or Turkey. You have no significant issues with your health, drugs or alcohol.
16 You have pleaded guilty to these matters at the first opportunity. I accept that your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit. I note there was no psychological material regarding any assessment of your insight or problems relating to this troubling offending behaviour. I was however, informed that your offending has been a source of personal shame and that you are aware of the broader consequences on children with this kind of offending.
17 As to the breaches of SORA. The purpose of these conditions or the regulatory scheme is to ensure your activities can be monitored. The failure to provide such information thus allowed you to commit the kind of offending that you did. In cases involving child pornography, the relevant sentencing principles are set out recently in DPP (Cth) and DPP (Vic) v Garside [2016] VSCA 74 at 25. See paragraphs (a) through to (i).
18 Taking those matters into account and of particular relevance to you, as to the nature and gravity of the offence, in considering this factor the following is relevant.
19 (a) the nature and content of the material, in particular the age of the children and gravity of the sexual activity depicted;
20 (b) the number of images or items possessed;
21 (c) whether the material is for the purpose of sale or further distribution; and
22 (d) whether the offender profits from the offence.
23 Whereas in this case the child pornography is for personal use, the number of children depicted and thereby victims is also regarded as a relevant consideration, as is the length of time for which the material was possessed.
24 As to the nature and content of the material, age of children and gravity, the children depicted were of various ages, some as young as five. Although 53 per cent were Category 1, 1.9 per cent were Category 4 involving penetrative activity. You had each of the six categories and thus your material was of varying seriousness.
25 The number of images. The amount of material that you had amounting to 750,000 images, even accepting that some of those images were duplicated was a very, very large amount relating to hundreds of thousands of victims. Additionally the manner in which they were stored in a hard drive hidden near or in a printer, meant the files were difficult to detect.
26 There was no suggestion this material was downloaded by you for the purpose of sale or further distribution, or that you were motivated by profit, all of which would have amounted to aggravating features. This material was for your personal use, your activity does however provide a market for the exploitation of vulnerable children. The prevalence and ready availability of child pornography on the internet makes general deterrence an important consideration. With a readily accessible market and demand for this prohibited product, those minded to exploit children in this manner must be aware that they will be severely punished. The Court of Appeal has made it clear on a number of occasions general deterrence is the paramount consideration for offending of this grave nature.
27 You have similar prior convictions from 2008. That offending also involved hundreds of thousands of images. It is apparent that the sentence of imprisonment and time on parole did not deter you from re-offending in a similar manner. This is also relevant to your rehabilitation prospects. As noted you have limited supports in the community and of more recent times have lived an isolated existence. Given your priors and the volume of material involved in both this and that previous matter, your rehabilitation prospects are limited.
28 You were previously sentenced to a term of imprisonment for one charge of child pornography and one charge of production of child pornography. You therefore fall to be sentenced as a serious sexual offender on Charges 2 and 3 before me. Any term of imprisonment imposed is to be served cumulatively unless otherwise ordered by the court. I do not propose to impose total cumulation between the charges given the principle of totality. The court must regard the protection of community from you as the principal purpose for which the sentence is imposed and the prosecution does not seek a disproportional sentence.
29 Taking all matters outlined above into account I sentence you as follows.
30 Charge 1, failing to comply with SORA, I convict and sentence you to a term of imprisonment of three months.
31 Charge 2, possession of child pornography, you are convicted and sentenced to a period of three months.
32 In respect of Charge 3, possessing child pornography, you are convicted and sentenced to a period of imprisonment of four years and four months.
33 One month of the sentence imposed in respect of Charge 1, and one month of the sentence imposed in respect of Charge 2 will be cumulative leaving a total effective sentence of four years and six months. I set a non-parole period of two years and six months.
34 Under the provisions of the Sex Offenders Registration Act, possession of child pornography is a Class 2 offence. You have now been found guilty of at least three Class 2 offences so that those reporting conditions under the Act will be now for the remainder of your life.
35 The fact that you are to be sentenced as a serious sex offender is to be noted on the records of the court in respect of Charges 2 and 3.
36 Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter I would have sentenced you to a term of imprisonment of seven years with a non-parole period of five.
37 Twelve days of pre-sentence detention is declared.
- - -
HER HONOUR: Do you need to do another SORA order?
MS KELLY: I will Your Honour.
HER HONOUR: All right, I need to wait for that then?
MS KELLY: Yes please.
HER HONOUR: You can sit down Mr Salih. Thanks, just adjourn until 10.30.
- - -