Director of Public Prosecutions v Ur-Rahman
[2010] VCC 18
•31 May 2010
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-10-00265
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MUJAHED UR-RAHMAN |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17, 18, 19, 20, 21, 24, 25, 26, 27 and 28 May 2010 | |
DATE OF SENTENCE: | 31 May 2010 | |
CASE MAY BE CITED AS: | DPP v Ur-Rahman | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 18 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Serious Sexual Offender – indecent act with or in the presence of a child under the age of 16 – act of sexual penetration with a child under the age of 16 – knowingly possess child pornography.
Legislation Cited: Sentencing Act 1991, Sex Offenders’ Registration Act 2004
Sentence:Total effective sentence of 3 years and 9 months’ imprisonment with a non-parole period of 2 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr M J Rochford | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr P S Tiwana | Paul Vale Criminal Law |
HIS HONOUR:
1 Mujahed Ur-Rahman, you have pleaded guilty to each of three charges on the Indictment.
2 Charge 1 is that on 28 September 2009, you committed an indecent act with or in the presence of KH, a child under the age of 16 years. The maximum penalty for that offence is ten years' imprisonment.
3 Charge 2 is that on 30 September 2009 you took part in an act of sexual penetration with AC, a child under the age of 16 years. Where the child was under the age of ten years (as here), the maximum penalty is 25 years’ imprisonment for this offence.
4 Charge 3 is that on 1 October 2009, you knowingly possessed child pornography. The maximum penalty for this offence is five years’ imprisonment.
5 The circumstances of your offending are set out in an Amended Prosecution Opening which was read in open court and which I marked as Exhibit A. I will not repeat it except in summary form. I incorporate the whole of the summary into these sentencing remarks by reference.
6 At the time of offending, you were employed doing door-to-door sales marketing Foxtel. On 28 September 2008, after completing your work, you got into conversation with young people in the Craigieburn area. One of them was KH, who was aged 14 years. At one point the conversation turned to sex and whether the young people had engaged in it. You reached out and grabbed the calf area of KH and then moved your hand up her leg to where her thigh meets her buttocks (Charge 1).
7 On 30 September 2009, you were working in the Noble Park area. You approached the mother of AC to buy Foxtel and she said that she was not interested. As you were leaving the house, you picked up AC and kissed her on the cheeks and around the neck area. You then undid the zip on the shorts which AC was wearing and slid your hand underneath her tights and underwear and inserted three fingers into her vagina. You placed a finger in her external genitalia, namely the labia. There was slight penetration involving a rubbing action and did not involve penetration of the internal vaginal cavity. You removed your fingers when told by AC to stop. The penetration lasted about five seconds. The offending occurred in the presence of AC’s brother, EC. AC was upset by your offending and ran to her mother crying, telling her what you had done (Charge 2).
8 When arrested at your place of work, your mobile telephone had on it an explicit pornographic video of a child entitled “What a result of a non-frigid 14 year old”. That video had been on your telephone for about 48 hours, having been forwarded to you by KH, the complainant in Charge 1.
9 The offending in charges 1 and 2 is very serious. In Charge 1, you deliberately touched a young girl on the leg and thigh area. She was a virtual stranger to you. In Charge 2, you penetrated the vagina of a young child in her own home when she was within earshot of her mother. Your conduct was of the kind that every parent fears.
10 You were arrested on 1 October 2009 and have been in custody since that time, a total of 243 days as of today’s date. I was told that you would be pleading guilty at a second mention of the matter before me. Although you have not pleaded guilty at the earliest possible opportunity, your pleas of guilty have nonetheless saved the community the time and cost of a trial and you have saved your victims the experience of having to relive your conduct towards them by having to give evidence. For that you are entitled, in my view, to a lesser sentence than you would have received had you been convicted of these charges after a trial. This will be reflected in the sentences I will shortly pass.
11 I admitted into evidence a Victim Impact Statement of SC, the father of AC. In it he describes the impact which your offending in Charge 2 has had upon the whole family, and especially AC. You scared AC by what you did and this has affected her interaction with the whole family. Time will tell whether there are long-lasting psychological effects on AC. I also admitted into evidence a Victim Impact Statement of KH. Because of your offending, she requires counselling for the psychological effect that your offending has had upon her. In passing sentence upon you, I have taken the Victim Impact Statements of SC and KH into account.
12 You are an Indian National who came to Australia as a student on a Student Visa in October 2008 to study an advanced diploma in hospitality management. You should have been completing your course this month but have spent the last seven-and-a-half months in gaol on remand. I was told by your counsel, Mr Tiwana, that you came to Australia with a dream to advance your life. Whilst studying, you were working and marketing Foxtel. Your employer described you as being committed, punctual and friendly and, this offending aside, there were no complaints against you.
13 I admitted into evidence as Exhibit 1 on the plea a psychological report from David Ball, forensic psychologist. You told Mr Ball that you lived in Hyderabad in Southern India and you speak four languages including English. Although no intelligence testing has been done, you appear to Mr Ball to be of above-average intelligence; your mental state is unremarkable. You told Mr Ball that you do not suffer from depression or anxiety and you sleep and eat well within the confines of prison where you have been isolated in protective custody.
14 You are presently 29 years of age. You are single and have never had any form of sexual relationship. You have been well educated; you don’t smoke and have never consumed tobacco or illicit drugs. Mr Ball describes you as a high-functioning man, eminently employable in the pharmaceutical industry or in hospitality. You were not diagnosed as a paedophile. In his report, Mr Ball opines, inter alia, as follows:
“On the basis of clinical interview, I am of the view that Mr Ur-Rahman’s psycho-sexual development remains arrested at a young adolescent level similar to that of his adolescent victims. He attributes his lack of sexual experience to dedicating himself to working long hours to earn money for himself and his family. On this he presents as having insufficient relationship and socialisation skills to function in the Australian community as a sexually active adult of his age. Mr Ur-Rahman’s offences against the victim Elena remains somewhat perplexing and alarming. He emphatically denies any attraction to children and attributes his actions to "'a slip of judgment for five or ten seconds'. Internet research has revealed that there are no cultural moors that permits sex or marriage with individuals under the age of 16 in India. Sex with a female 15 years or younger is defined as rape under s.375 of the Indian Penal Code. There also appears to be laws against paedophiles and paedophile-related conduct in India. On the above factors and his absence of prior criminal history I consider Mr Ur-Rahman a low to moderate risk.”
15 In passing sentence upon you, I have taken into account the whole of the contents of Mr Ball’s report. Mr Tiwana tendered as Exhibit 2 a chronology of your education and work history with attached relevant certificates from various institutions. You are well educated and you have worked hard at various endeavours. In passing sentence upon you, I have taken into account the whole of the contents of Exhibit 2.
16 Your family lives in India. Your father was struck and killed by a car in your presence in Dubai. Your father left the family to work in the Middle East when you were young. You were just in the process of developing your relationship with him when he was killed. You were then aged 25 years. I also admitted into evidence as Exhibits 3 and 4, written references from a former employer and an old friend. In passing sentence upon you, I have taken these references into account.
17 Your work and study whilst in Australia took up all of your life. I was told you had no social life whilst here. Whilst in custody you have been in protective custody. You have no visitors except a cousin who comes perhaps once per month to see you. You paid $15,000 to do your course. Because of this offending, you have lost everything and will most likely be deported upon release from prison.
18 Mr Tiwana submitted that I should tailor a sentence so that you are now released, serving the time that you have been remanded either as a minimum term or suspending the rest of any sentence imposed. He said that you received a video from KH which the prosecution acknowledges to be correct. He said that whilst you should not have engaged the young people in conversation leading to the charge in Charge 1, he nonetheless submitted that Charges 1 and 3 were at the lower end of the scale for this kind of offending. He pointed out that there was no complaint from KH, your offending being revealed when a trace on the receipt of a video led police to KH.
19 I agree that Charges 1 and 3 fall towards the lower end of the scale, however, the offending in Charge 1, whilst falling towards the lower end of the scale, nonetheless represents unacceptable conduct. Your offending involved touching a young girl. That is totally unacceptable.
20 Charge 2 is different. It is very serious offending. Mr Tiwana told me that you bitterly regret what you did, and you also said this to Mr Ball. Your conduct towards AC cannot be explained. Mr Tiwana submitted your offending in Charge 2 was not premeditated, was spontaneous, was of short duration and it is properly described as touching of the outside of the vagina with no penetration. I accept those submissions but it did have the aggravating features of occurring on the premises of AC’s home in the presence of her younger brother. You had no right to do what you did. Protection of children from those who would seek to treat them as you have is one of the most important things that a civilised society tries to achieve.
21
Mr Tiwana also submitted that you are an intelligent man with a good work ethic and no prior convictions who has pleaded guilty and who is remorseful.
I also accept those submissions. You seem to me to be a relatively simple man, alone in a strange country with few or any friends. Whilst no reason for your offending can sensibly be advanced, it seems to me that your simplicity and loneliness are contributing factors.
22 Mr Rochford, who appeared to prosecute, submitted that there was no basis for a sentence that would see you released immediately, on the basis either of the time served as a minimum or as that served as part of a partially suspended sentence. Mr Rochford submitted that where the offending involves young children (as Charges 1 and 2 do) then the Court must give application to the principle of general deterrence. I agree. Appellate courts throughout Australia have repeatedly emphasised the need to protect children by applying sentences that apply principles of general deterrence.
23 Mr Rochford submitted that your offending had aggravating features. In Charge 2, you were a stranger in your victim’s home where you offended. Young children ought to feel safe within the confines of their own home in broad daylight. Your offending in Charge 2 was without provocation and was opportunistic. Mr Rochford submitted – correctly, in my view – that your offending requires a punishment that properly reflects the Court’s denunciation and just punishment. Mr Rochford submitted on instructions that your offending calls for the imposition of a term of imprisonment where the head sentence is in the range of four to six years and the non-parole period two to four years.
24
The offence in Count 3 is a “serious sexual offence” within the meaning of that term in the Sentencing Act 1991 (which I shall hereafter refer to as “the Act”). That means that as you will be convicted of this count and sentenced to imprisonment, you are a “serious sexual offender” within s6B(2) of the Act.
I am required to sentence you on Count 3 as a serious sexual offender.
In doing so, I must consider Part 2A of the Act concerning any sentence imposed on Count 3.
25 In determining the length of any prison sentence imposed on Count 3, protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, s6B provides that I may impose a sentence longer than that which is proportional to the gravity of the offence considered in the light of their objective circumstances. This does not mean that the principles of proportionality and totality of sentencing are to be disregarded unless, in the exercise of discretion, I consider that the circumstances before me to make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for. Mr Rochford properly conceded, in my view, that a disproportionate sentence is not called for in the circumstances of your offending.
26 In my view, the overall sentence I propose will properly and adequately provide for protection of the community. The term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence in Count 3 must, unless otherwise directed, be served cumulatively and any other sentence I impose on you. I will impose some cumulation and order some concurrency which I regard as appropriate, taking account of all the circumstances discussed.
27 Pursuant to s6F of the Act, I am required to cause to be entered in the Court’s records that I sentence you as a serious sexual offender in respect of any sentence imposed on you for the offending in Count 3. The overall sentence I impose must manifest the Court’s denunciation of your conduct. Finally, I must impose a punishment which is, in all the circumstances, just. The sentence to be imposed should meet the needs and expectations of the community and take account of the effect of your offences on the community. It should also take into account those matters personal to you and the mitigating factors such as your pleas of guilty and lack of prior convictions already discussed.
28 Having regard to the sentencing purposes to which I have referred, the circumstances of your offending and the relevant penalties fixed by the Parliament, there is no sentence other than a term of imprisonment which is appropriate in this case and it has not been suggested otherwise.
29 In sentencing you, I have had regard to the nature of the offences, the short period of time during which your offending was carried out, together with the effect of your conduct on the complainants as appears all too clearly from the Victim Impact Statements. I have had regard to all of the material tendered on your behalf and all of the submissions made by your counsel, Mr Tiwana. In your case, I am of the opinion that you have good chances for a full rehabilitation. I am also of the view that your time in prison will not be easy for you, having regard to the nature of your offending and your ethnicity. For these reasons, in sentencing you, I have imposed what might be considered a shorter than usual non-parole period. As I am required to do, I have had regard to current sentencing practices. Would you please stand, Mr Ur-Rahman?
30 On Charge 1, you are convicted and sentenced to a term of imprisonment of six (6) months. On Charge 2, you are convicted and sentenced to a term of imprisonment of three-and-a-half (3½) years. On Charge 3, you are convicted and sentenced to a term of imprisonment of one (1) month. I direct that three (3) months of the sentence I have imposed on Charge 1 cumulate upon and be served with the sentence I have imposed on Charge 2. Otherwise I direct, for the purposes of s6E of the Act, that there be no further cumulation of the sentences I have imposed this day. This makes a total effective sentence of three (3) years and nine (9) months’ imprisonment.
31 Pursuant to s11(1) of the Act, I fix a minimum of two years and three months during which you are not eligible to be released on parole. Pursuant to the requirement contained in s6AAA of the Act, I state that but for your pleas of guilty to these offences, I would have imposed a total effective sentence of six years’ imprisonment and I would have fixed a minimum term of four years during which you would not be eligible for release on parole.
32 Pursuant to s18 of the Act, I state that there has been 243 days’ pre-sentence detention and I direct that 243 days be reckoned as having already been served under the sentences passed by me this day.
33 Pursuant to s6F(1) of the Act, I direct that I have sentenced you on Count 3 as a serious sexual offender within s6B of the Act and I direct the fact that my having done so be entered in the records of this Court.
34 I recommend that whilst in prison you be referred for assessment and treatment under any relevant sexual offender treatment programs and that this matter be brought to the attention of the Parole Board at the relevant time.
35 The Director of Public Prosecutions has applied under s11 of the Sex Offenders’ Registration Act 2004 that you be registered as a sex offender under the provisions of that Act and that you comply with the reporting obligations contained therein. You have pleaded guilty to one Class 1 offence and two Class 2 offences within Schedules 1 and 2 of the Sex Offenders Registration Act, you are thus a registrable offender within the Sex Offenders Registration Act and pursuant to s34(1)(c) of the Sex Offenders Registration Act, you must comply with reporting obligations for life.
36 The prosecution seeks a taking of a forensic sample from you. The application is unopposed and the circumstances of your offending are sufficiently serious to justify the making of such an order. I have signed the orders accordingly.
37 The prosecution also seeks orders for the disposal of items seized. The application is unopposed and I have also signed those orders.
38 Would you remove Mr Ur-Rahman.
39 PRISONER REMOVED
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