Director of Public Prosecutions v Sheriff

[2014] VCC 2128

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-02121

DIRECTOR OF PUBLIC PROSECUTIONS

v

OMAR SHERIFF

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 December 2014
CASE MAY BE CITED AS:	DPP v Sheriff
MEDIUM NEUTRAL CITATION:	[2014] VCC 2128

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr W. Stougiannos
For the Accused	Ms N. Sheridan-Smith

HER HONOUR:

1Omar Sheriff, you have pleaded guilty to three charges of procuring sexual penetration by fraud.  The maximum penalty for that offence is five years' imprisonment.

2The charges relates to two occasions between 1 January 1994 and 31 December 1994.  On each occasion you offended against the same adult female complainant.  You met the complainant in 1994.  She was introduced to you by her friend.  The complainant had separated from her husband, who had been abusive and who had gambling problems.  The complainant had five children to support and was in very difficult circumstances.  You had a reputation within the complainant's community of having special powers and being able to help people.  You engaged in various rituals and what I would describe as hocus pocus which appear to have had some religious component.  You carried out these activities in your business premises.

3On the first occasion the complainant came to you for help you told her friend to leave the room.  You told the complainant to pull down her pants.  You put your finger in her vagina and then a Coke bottle, which you pretended was part of a ritual that would assist her.  That penetration is the subject matter of Charge 1.

4The complainant visited you a number of times and gave you money.  She believed you had the power to help her.  On her last visit you told the complainant she had a devil in her.  You told her to undress.  Under the pretence of ridding her of the devil you put your finger in her vagina, Charge 2, and then you undressed and put your penis in her vagina, Charge 3.  You had intercourse with the complainant for about half an hour until you ejaculated.  The complainant felt pain during the intercourse.

5In her victim impact statement, tendered as Exhibit E, the complainant describes what she feels to be the consequences to her of your offending, particularly the offending in Charge 3.  The complainant appears to have had multiple difficulties in her life but I am satisfied that this event had a significant adverse impact on her at the time and continues to do so.  She continues to suffer from nightmares, flashbacks and anxiety.  The disclosure of this offending after a period of time has caused difficulties between herself and her children.

6At the time of the offending the complainant was afraid to tell anyone.  In 1999 she told a doctor and a counsellor about the incidents.  The complainant made statements to the police in April 2001 and October 2002.  You were interviewed by police in October 2001.  Police tried to serve charges on you in October 2003 but you had gone on a visit to Turkey.  You came and went to Turkey a number of times before the charges were finally served on you after a routine motor vehicle check in January 2013.

7You have three court appearances prior to this offending which are of very limited relevance to this sentence.  Two of those prior matters involved dishonesty but you have no prior sexual offending.  Of considerable relevance is a subsequent matter.  On 17 October 1997 you were sentenced in this court to a sentence of imprisonment of eight years with a non-parole period of six years on three charges of rape and one charge of indecent assault.  On appeal that sentence was reduced to a total effective sentence of six years' imprisonment with a non-parole period of four years.  The reference to the Court of Appeal decision was R v Sheriff [1998] VSC 258.

8I have had the benefit of reading His Honour Judge Gebhardt's reasons for sentence in the County Court.  You were sentenced on that occasion for offending which occurred in very similar circumstances to the offending for which I am sentencing you.  You offended against four women who had come to you in distress arising from marital or pre-marital problems.  They also believed you had special powers.  They trusted you and were duped.  In each case you engaged in bizarre pseudo-magical and religious rituals and in the process sexually assaulted the women.  I agree with Judge Gebhardt's description of your activities as being "humbug and nonsense."  This is precisely the same type of devious and depraved behaviour that you engaged in with the victim in this case.

9In sentencing you I have taken into account your personal circumstances.  You are 67 years old.  You grew up in Turkey and came to Australia with your wife and three children in 1979.   You built up a cabinet making and furniture business.  You have been separated from your wife since about 1997.  Your two sons were in court to support you.

10You have lived alone since your release from gaol in 2001.  In 2012 you had a serious car accident and suffered injuries to your shoulder and sternum.  The medical material tendered shows that you have a number of ongoing medical and psychological problems.

11Omar Sheriff, it is clear that your offending was serious.  I take into account that the maximum penalty for this offence is considerably less than the maximum penalty for rape.  It remains the case that this is a further example of disgusting and depraved behaviour where you took advantage of the trust placed in you by vulnerable women who came to you for help.  The subject matter of Charge 3 is particularly serious as it involves the aggravating features of pain and you ejaculating.  The seriousness of this offending and the need for denunciation, just punishment and general deterrence warrants a sentence of imprisonment.

12     There are matters to be taken into account in mitigation of sentence.  You are     entitled to a significant discount for your plea of guilty.  Your plea of guilty was     late but saved the trauma and expense of a trial.   The psychological report   tendered says that you expressed remorse to the psychologist.  This seems to   be a change in position since the sentence imposed on you by His Honour    Judge Gebhardt.  I accept that you are now remorseful and that your plea of   guilty is an indication of that remorse. 

13I accept that other factors operate in mitigation of sentence as set out by your counsel in her submissions.   There was a significant delay before the case was brought to the attention of the police, and then in charging you.  That delay was not due to your actions.  The matter has been hanging over your head since you were interviewed by the police.  It is significant that you have not offended subsequent to your release from custody. 

14You are now an older man with significant medical problems, including psychological problems.  Those matters would make gaol much more difficult for you.  I accept that you had difficulties when you were in gaol before, including being assaulted.

15The principles of totality and proportionality have particularly application given that you have been previously sentenced for very similar offending.  I note that three of the four counts for which you were previously sentenced occurred after the offending for which I am sentencing you. 

16I accept that you are now rehabilitated and that community protection or specific deterrence do not need to be given weight in sentencing you.

17You will be sentenced as a serious sexual offender, and s.6D of the Sentencing Act 1991 applies, but I will not be imposing a disproportionate sentence for the purpose of community protection.

18Taking into account the matters in mitigation, the delay, and the application of the principles of totality and proportionality, I could consider it would desirable in this case to wholly suspend the sentence of imprisonment to be imposed.  

19As I said, you will be sentenced on each of Charges 1, 2 and 3 as a serious sexual offender.

20You have pleaded guilty to three Class 4 offences for the purposes of the Sex Offender Registration Act 2004. I do not propose to place you on the register as I do not consider that there is now a risk of you re-offending in this way.

21On Charge 1, you are convicted and sentenced to 18 months' imprisonment.

22On Charge 2, you are convicted and sentenced to 18 months' imprisonment.

23On Charge 3, you are convicted and sentenced to 24 months' imprisonment.

24The sentence on Charge 3 is the base sentence.  Four months of the sentence on Charge 1 and two months of the sentence on Charge 2 are to be served cumulatively on each other and on the sentence on Charge 3.  The total effective sentence is 30 months' imprisonment.  That sentence of imprisonment is wholly suspended for a period of 30 months.

25But for your plea of guilty I would have sentenced you to a term of imprisonment of 42 months with a non-parole period of 28 months.

26Mr Sheriff in the next 30 months you must not commit any offence for which imprisonment is a potential penalty.  If you do you will be brought back before this court for breach of suspended sentence.  Unless there are exceptional circumstances you will be required to serve the whole, or part, of the 30 months of imprisonment.  Accordingly, it is very important that particularly during the next 30 months you do not commit any criminal offence. 

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