Director of Public Prosecutions v Tawfeek (a pseudonym)

[2018] VCC 1760

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01386

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEM TAWFEEK (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE M. P. BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	12 October 2018
DATE OF SENTENCE:	26 October 2018
CASE MAY BE CITED AS:	DPP v Tawfeek (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1760

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 C. Foot (Plea) Ms A. Watson (Sentence)
For the Accused	Mr M. Kozlowski

HIS HONOUR: 

1Alem Tawfeek[1] , you are to be sentenced for one charge of indecent act with a child under 16, Charge 1 on the indictment, and one charge of persistent sexual abuse of a child under 16, Charge 2.  The respective maximum sentences are 10 and 25 years' imprisonment. 

[1] A pseudonym name

2You pleaded guilty in this court on 20 July 2018.  When interviewed about Charge 2 by police on 13 February 2018, after initial denial, you made admissions.  However, I do not accept aspects of the description you gave about your relationship with Zahra Ahmed[2], the victim of Charge 2, persistent sexual abuse.  She is your wife's niece.  You had been interviewed in May 2013 about Charge 1.  Your victim is Naima Kader[3], also your wife's niece.  Although you had made admission to your family, to police you denied sexual or indecent behaviour and were not, at that time, charged.  You pleaded guilty to both charges at committal in early July of this year.  No witnesses were required to give evidence. 

[2] A pseudonym name

[3] A pseudonym name

3You receive the benefit of your pleas of guilty and the level of cooperation that brief history of the proceedings shows. 

4Your pleas and admissions to Charge 2 were early and have facilitated the interests of justice.  I accept that you suffer great regret; and remorse of a kind.  I shall return to this. 

5At your plea hearing which ran before me on 12 October, Ms Foot for the Crown tendered a written summary of prosecution opening and a chronology.  She also tendered the victim impact statements of Zahra Ahmed, her mother Salimah Ali[4] and her sister, Galiana Kader[5].

[4] A pseudonym name

[5] A pseudonym name

6Mr Kozlowski for you tendered the forensic psychological report of Dr Paul Grech, dated 10 October 2018.  He called Elmira Saab[6], your sister-in-law and the mother of Naima Kader.  Mr Kozlowski provided to me a letter by migration agent, Anna Emad  giving her opinion about prospective cancellation of your visa status in this country.  He also provided a written outline of plea submissions.

[6] A pseudonym name

7The circumstances of your offending are comprehensively described in the tendered Crown summary,  which is Exhibit A.  My own summary may therefore be shorter. 

8As stated your two victims are in effect your nieces.  It is clear to me that the extended  family has been very close.  Because of these offences it has become badly fractured.  In 2013, Naima Kader was 12 years.  There is one episode of offending against her.

9On 11 April, you were looking after her at your home.  You were in the kitchen.  Paragraph 4 of the Crown summary describes the conduct upon which you will be sentenced.

"The accused picked the complainant up by the waist and sat her between his open legs on the chair.  The accused told the complainant he loved her.  He rubbed her back, stroked her hair and hugged her.  The accused rubbed her back and said, 'Lie down'.  He put his hand up her top and rubbed her bare stomach.  He kissed her neck and forehead, put his hand across her neck and pulled her back towards his chest.  The complainant told the accused to move his hand away but he did not.  He started moving his hand toward the complainant's chest.  She grabbed his hand and moved it away".

10The child feigned illness to move away from you.  She sent facebook messages to her mother and told her what had happened when she, the mother, returned home.  Members of your family, including your wife and  Salimah Ali, confronted you on the following day.  As I have stated, you were interviewed but not charged.  It is a matter of speculation, albeit understandable,  as to whether being charged then would have had some effect to prevent your later offending in 2017.

11In the relevant months of 2017, Zahra Ahmed was aged 15.  You conducted a sexual relationship with her over about six weeks in May and June.  She was a frequent visitor to your home and would sometimes sleep over.  At this time your mother was visiting the family from Lebanon.  There are three particular episodes of sexual activity identified in the Crown opening.  They were that you had Zahra Ahmed perform oral sex upon you in the main bedroom of your home   (apparently the first occasion of this); next day, on the front porch of the home  (on this occasion, you withdrew and ejaculated,  her sister was waiting outside in the car);  and in a spare room at the home  (others, including her sister, your wife and your mother were in the house nearby.  You removed your penis when about to ejaculate).  These acts occurred in the context of other sexual conduct, at times associated with the specific episodes and on other occasions.  You rubbed yourself against her, licked her breasts, rubbed her clitoris and otherwise touched her vagina.  Electronically you sent videos of yourself and requested that she send you images.  She sent naked photographs and videos of her breasts, buttocks and vagina. 

12How all of this ended is not absolutely clear.  Mr Kozlowski told me that you ended it when your wife became suspicious.  In December 2017, Zahra Ahmed told the mother of a friend.  She said she was afraid to tell her family for fear this would break it up.  I note that in 2014, when about 12, she had witnessed your wife blame her cousin, Naima Kader, for what had happened in 2013.

13The victim impact statements powerfully state the effect of your offending upon your victims and your family.  Zahra Ahmed states her anger and vulnerability;  her feelings of betrayal, irrational guilt and shame.  Relationships within her family are presently lost to her.  She feels that she is blamed.  Her relationship with her mother and sister has been damaged.  She witnesses the impact upon her mother.  She suffers anxiety, loss of security and others' judgment of her.  She states that she feels dirty.  Enjoyment of her life and schooling has been effected.  She has dropped out of school and her ambition to study design is at risk.  She sleeps badly.  She feels frustrated, negative and depressed.  Zahra Ahmed writes at the beginning of her statement, "I feel angry about the whole situation because all I wanted was a father and he betrayed me, using me as a tool".

14Her sister, Galiana Kader, describes struggling emotionally and her own feelings of guilt.  School has been affected, there is anxiety, loss of motivation and interest in social life.  Salimah Ali read her victim impact statement in court.  It is very clear that she feels great emotion about what has happened.  There is guilt, a feeling of shame and anger.  There is a loss of security.  She has lost her former drive and enjoyment of life.  Relationships with her sisters have been damaged, she feels permanently.  Her employment,  hitherto highly successful,  has suffered.  There are other financial impacts.  She has accumulated debt.  She looks to selling their home.  She has the difficulty of managing her daughter's angry behaviour.  She feels and fears the  judgment and blame of her community; for example, if you are in prison. 

15I am not complete.  There has been very considerable victim impact.  This must be taken into account in my sentence of you.

16You are a 34-year-old man who has no criminal history.  You were born and raised in Lebanon, the 11th of 13 siblings.  There is one sister in Australia.  You had a very religious upbringing.  Your childhood was badly affected by war.  You witnessed violence,  including use of such weapons as Kalashnikovs and bombings.  I was told that as a child you also suffered bullying and sexual assault.  You witnessed sexual assault upon others.

17You came to Australia in 2009 on a tourist visa.  You met your wife, who is of Egyptian background, here in 2010 and married.  At first you were refused a visa on this basis.  After about 12 months in Lebanon, you were granted permanent residence.  Your wife had become pregnant.  The letter of migration agent, Anna Emad, describes "a permanent partner visa".  Although not formerly decided, that visa will be mandatorily cancelled.  It is said to be unlikely that any application to revoke that cancellation would succeed and you would be deported upon release from my sentence.

18You have four children age one to six.  Your eldest son, the six-year-old, suffers autism.  The evidence persuades me that it is a serious example of the condition; for example he does not feed or toilet himself.  You have been separated from your wife;  but the evidence before me and clarification today by Mr Kozlowski supports, particularly bearing in mind your son's condition, that you have continued to play a strong supportive role in the family.

19In Lebanon you studied information technology for a number of years.  You served in the army in 2004 to 2005 and again in 2006.  You have developed skills as a welder.  Any formal qualification has not been made clear.  In Australia you have been consistently employed as that in the car industry since 2012.  I was told that you work seven days a week.

20Psychologist Dr Grech makes reference, although sparsely, to likely depression and anxiety at time of and related to the 2017 offending.  There is a somewhat cryptic suggestion of present treatment for that.  Your presentation to him displayed   "subtle signs of autism or Asperger's syndrome with social detachment." This was not developed or raised further. 

21This was serious offending,  for example, reflected in the high maximum sentence for Charge 2, persistent sexual abuse.  These offences exemplify in a telling way legislative purpose and community values.  Both of your victims were children.  Both deserved protection against sexual exploitation.  Part of that responsibility was with you.  What you did was a betrayal of your family's trust.  Importantly, it was a betrayal of the  trust  of  your two victims.  Your offending against Zahra Ahmed was persistent, sexually intrusive and damaging.  You gave explanation of its beginning and nature to Dr Grech, which states your victim as proactive and sexually provocative.  I do not accept that.  Further, that explanation of things evidences failure by you to recognise her vulnerability, your responsibility and the wrong of what you did.  Any claim of consent is not relevant to these things. 

22The circumstances of your offending, particularly Charge 2, make important sentencing purposes and considerations of deterrence (that is, general and specific deterrence)  your moral culpability,  the need to sentence in a way to condemn what you did and punish it.  There must be a significant period of imprisonment.  I omitted to say a little earlier and say it now.  I do accept the submission that your offending against Zahra Ahmed did not carry some of the very adverse features such offending can.  For example, there was not evident intimidation or threat and the period was not as prolonged as can be.

23I will take up my reasons again.  I have said but I repeat, there must be a significant period of imprisonment. 

24However, I also take into account mitigating or moderating factors which to an extent may reduce the length of that sentence.  They include the following. 

25(1).  That you are otherwise of good character.  It is not uncommon in cases like this.  Your first offence was in 2013 and second in 2017.  The relevance and benefit of good character is the lesser but you are still entitled to an appropriate consideration of it.  You have no prior convictions.  The evidence presents you as a caring father and provider. 

26(2).   Your plea of guilty.  I accept the evidence of your sister-in-law, also the mother of your first victim, that you feel regret and pain at what you have caused.  In considering that evidence and the report of Dr Grech,  including your explanations to him, I find that you feel remorse of a kind.  However, you lack insight into the true culpability of your offending and real or full victim empathy.  Dr Grech states a need for engagement in a sex offender therapeutic program.

27(3).   Good prospects for your rehabilitation are not unequivocally clear.  Dr Grech briefly states.

"In summary, when considering the range of factors that predict sexual offence risk, Mr Tawfeek may be considered to be situated towards the lower end of the risk continuum as compared to other sex offenders, provided that he engages in medium-term offence specific sex offender treatment.

The likelihood of him meaningfully reoffending, as opposed to a minor non-reporting breach, appears low, provided that he avails himself and complies with all of the requirements of a full sex offender program.  Individual post-program therapy with a psychologist experienced in treating sex offenders is also recommended."

28However, his report also states “minimisation of the offending and tendency to blame extraneous factors”.  You have this year been receiving psychological treatment or counselling; but that is stated to be related to anxiety, stress and lowered mood connected with this proceeding.  It appears that major parts of your family are supportive of you.  I do not conclusively find, but I am left with concern that some of your family lack full recognition or insight into what you have done.  Ultimately,  with such qualifications,  I find that you have capacity and some prospect for rehabilitation.  For example, I see you as a person upon whom this sentence will have significant deterrent impact.

29(4).   I take into account your personal background and circumstances.  That includes your childhood trauma and difficulties.  Particularly this sentence will have serious consequences for you and your family.  I accept that you play an important role,  both financially and personally,  in support of your family.  Your son suffers a seriously debilitating condition and is heavily dependent upon you.  I have not been persuaded that the expected hardship of your family meets directly the required test to mitigate your sentence.

30However, do find that your imprisonment will be particularly hard given your concern for them, especially for your eldest son.  This morning, Mr Kozlowski raised that another son has received psychological treatment arising out of separation from you.  Similarly,  and connected to all that,  the fear and expectation of deportation will work hard on you.  I find that you are in the situation of having developed a life and particularly a family life in this country.

31The moderating factors I have stated are relevant to both head and minimum terms.  They may be seen to have particular impact upon the minimum term I set.  I will say that again.  They may be seen to have particular impact upon the minimum term I set. 

32Having considered and weighed the relevant matters, I sentence you as follows.  Stand up please.

33On Charge 1, you are sentenced to ten months' imprisonment. On Charge 2, you are sentenced to six years' imprisonment. I direct that four months of the sentence for Charge 1 be served cumulatively on the sentence for Charge 2. That is a total effective sentence of six years and four months. I set a minimum term of three years and ten months before eligibility for parole. I declare under s.18 of the Sentencing Act, 14 days of pre-sentence detention.

34What other orders do I need to make?

35MS WATSON:  Your Honour, the Crown seeks a s.464ZF forensic sample order in addition to a disposal order for the mobile phone seized during the course of the investigation.

36HIS HONOUR:  The mobile phone, how was that used?  For the text messages was it or?

37MS WATSON:  Yes, that's correct, Your Honour.

38HIS HONOUR:  The images, was it?

39MS WATSON:  Yes.  And, Your Honour, also the sought registration orders.

40HIS HONOUR:  Yes.  Well, we might do that first I think.  Can you prepare the registration orders?  What's the period of reporting?

41MS WATSON:  Mandatory reporting for life, Your Honour.

42HIS HONOUR:  Yes, thank you.  Take a seat please.  Is that because it's a class one offence is it?

43MS WATSON:  Yes, that's correct.  So, the second charge of persistent sexual abuse is a class one offence pursuant to section - schedule one, item four of the SORA Act.  Charge 1, which is indecent act with a child under the age of 16 is a class two offence pursuant to schedule two, item 34 of the Act.

44HIS HONOUR:  All right, is that enough?  All right, now whilst that's happening, there's a disposal order in respect of the mobile phone.  I'll sign that order now.  Stand up please Mr Tawfeek .  Mr Kozlowski, what's your client's position on the forensic sample order?

45MR KOZLOWSKI:  He consents to one, Your Honour.  Consents.

46HIS HONOUR:  Yes.  I'll make it because of the seriousness of the offending, it's not opposed.  Offending of this nature or an investigation of such offending is peculiarly assisted by a database of former offenders and their DNA.  Now, that means this, that at a time to be arranged, you will be required to supply a sample of your saliva by putting a cotton swab inside your mouth.  If you cooperate in that, that's the end of it.  If you don't cooperate in it, a sample of blood may be taken by injection and reasonable force used to do that.  I've just stated my reasons for making the order.  I'll sign that order now.  There's the forensic sample and there's the disposal.

47I indicate to you that had you not pleaded guilty, I would have imposed a sentence of nine years with a minimum term of six years.

48Now, I'm about to have served on you a document that indicates this, that you are to be registered as a sex offender which requires certain things of you, including, and that is that you report to the relevant authorities in accordance with their requirements.  The document will indicate that and what in a brief way, what those requirements are.

49I'll have my staff bring that document down to you to serve it upon you and there is another document that requests your signature, indicating that you have been given the first document.  You may sign that or not sign that as you choose.  Do I need to sign it first?

50ASSOCIATE:  No, he signs it first doesn't he?

51HIS HONOUR:  I don't know.

52ASSOCIATE:  I don't know.

53HIS HONOUR:  Well, I think I'll have to (indistinct words), I'm not sure.  I think it's different to the CCOs.  Your wife and sister-in-law I think identify them.  Have attended and they may speak to you briefly before you're taken into custody.  Mr Kozlowski, could you supervise that.  It must be very brief.  I'll remain here whilst that happens.  I'm sorry it must be brief.  Mr Tawfeek  must be taken into custody now.  Thank you.  Nothing else to do?

54MS WATSON:  Nothing further, Your Honour.

55HIS HONOUR:  Nothing else, Mr Kozlowski?

56MR KOZLOWSKI:  (Indistinct words).

57HIS HONOUR:  Thank you both.

58MR KOZLOWSKI:  Thank you.

59MS WATSON:  May it please the court.

60HIS HONOUR:  Adjourn sine die.

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