Director of Public Prosecutions v Yartasi

[2017] VCC 1388

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-00661

DIRECTOR OF PUBLIC PROSECUTIONS

v

RASIM YARTASI

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 September 2017
CASE MAY BE CITED AS:	DPP v Yartasi
MEDIUM NEUTRAL CITATION:	[2017] VCC 1388

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	Mr A. Portelli
For the Accused	Ms F. Banahali

Pages 1 - 16

 

 

HER HONOUR:

1Rasim Yartasi, you have pleaded guilty before me to one charge of accessing child pornography material using a carriage service, contrary to s.474.19(1) of the Commonwealth Criminal Code, one charge of making child pornography available using a carriage service, contrary to the same section and on charge of knowingly possess child pornography, contrary to s.71 of the Crimes Act, Victoria. You have also pleaded guilty to capturing the genitalia of a child on film, contrary to s.41B of the Summary Offences Act.  The facts underlying your offending are as follows. 

2Between 25 March 2011 and 14 November 2016, you used a peer to peer network to download child pornography.  Those actions underlie Charge 1 on the indictment.  While doing this you also had child pornography stored on your computer in an open folder which is available for other users of that peer to peer network to download.  Those actions underlie Charge 2 on the indictment. 

3Between 31 March 2016 and 17 September 2016, a police covert operative downloaded ten child pornography files from you.  On 15 November 2016, police executed a search warrant at a house in Keysborough where you were then living with your sister, her husband and her three children.  You told police that they were probably there for him because of "the child porn."  A number of electronic devices were seized which were later analysed and revealed the presence of child pornography; those items belonged to you. 

4In your record of interview, you gave police the password to your laptop that had been seized and admitted that you had been downloading child pornography for several years through the peer to peer network, first having done so while living with your parents in Hallam.  You said you searched for filenames, including "pthc", which stands for preteen hardcore, as well as "hussy" and "pedo."  You said that when you downloaded the files, they were available for other users to download from you until you moved them into another folder.  You said that you usually moved those files into another soon after you had finished downloading. 

5You said you were not accessing files from particular people and you had no gender or age preference.  You admitted you had ten thousand or more images and that you masturbated to images and videos that you downloaded. 

6Analysis of the materials that you had downloaded revealed you had 16,295 files which fell into the category 1 of the child exploitation tracking system scale.  That is depictions of children without sexual activity but which were sexual in nature, including nudity, images showing underwear, sexually suggestive posing, explicit emphasis on genital areas or solo urination by a child.  Two hundred and nineteen of those files were videos. 

7You had a total of 1091 files in category 2, which depicts solo masturbation by a child or sexual acts between children only, in which penetration does not occur.  Of those, 389 were videos. 

8There were 2555 files which fell into category 3 on the scale, which is non-penetrative activity between adults and children, which may include mutual masturbation and other non-penetrative sexual activity. 

9There were 4014 files in category 4, which includes penetrative sexual activity between children only and penetrative sexual activity between children and adults.  This can include vaginal, anal intercourse, cunnilingus and fellatio and penetrative use of sex toys or foreign objects. 

10In category 5 there were 164 files which depicted sadism, bestiality or humiliation, including urination, defecation, vomit and bondage or child abuse material.

11There were 26 files which fell into category 6 on the scale, which includes anime, cartoons, comic, computer generated graphics, drawings, audio and texts depicting or describing children engaged in sexual poses or activity. 

12There was a description contained in the prosecution opening of various film images and videos which were found, such as pictures of genitalia of toddlers and infants, penetrative activity between two 12-year-old boys, ejaculation, a picture of ejaculate on a toddler and even attempted penetration of a baby who was lying on a nappy. 

13I will attach the prosecution opening to my sentencing remarks as an exhibit, but overall, I simply need to make the comment that it contained, as child pornography always does, entirely revolting and repellent material.  During the period that you were downloading from the peer to peer network site, you shared 547 files during the time. 

14Police also analysed your phone in which you were seen to be using a camera cigarette lighter to film the genital area of your six-year-old niece.  This occurred on two occasions during the same day and on both occasions she was fully clothed and was wearing underwear. 

15You participated in a second of record of interview on 25 January 2017 where you admitted using a hidden camera that looked like a cigarette lighter to film your six-year-old niece, admitting that you wanted to see how close you could get with a view towards using this device to film up other women's skirts.  You admitted having engaged in that sort of activity for about two years but had stopped doing it.  You denied having any sexual thoughts in connection with the videos that you made in relation to your niece.  Your actions in relation to that filming underlie Charge 3 on the indictment, possession of child pornography. 

16You pleaded guilty at the first committal mention hearing on 31 March 2017 after being arrested and charged on 15 November 2016.  It is conceded that this is a plea made at the earliest opportunity.  The maximum penalty for Charge 1 and 2 on the indictment is 15 years' imprisonment and the maximum penalty for Charge 3 is ten years' imprisonment. The maximum penalty for the summary charge is 2 years imprisonment.  

17I now turn to your personal circumstances.  You are 35 years of age and you have no prior convictions.  You live with your parents.  You are the youngest of three children born to your parents in Turkey and came to Australia aged 14, your father having come here many years before and settled, the aim being that you and your siblings and mother were to later join him. 

18You attended a language school for six months and then attended Cleeland Secondary College.  Generally speaking, as I understand it, you enjoyed school, you were a good student, you played soccer and competed Year 12. 

19You began an international trade and banking course at RMIT, a four year course, of which you completed two and a half years and then left, deciding this was not the career you wanted.  You then worked as a labourer and undertook a four year stonemason apprenticeship, working in that occupation for some years and it was an occupation which you apparently very much enjoyed.

20However, in 2007 you were involved in a serious accident; you, a girlfriend and another friend of yours had gone out together and you found them kissing.  A fight developed, you were thrown out of the bar where you were all attending and drove off in a fury.  This resulted ultimately in a single car accident where the car rolled several times and you sustained serious injuries to your neck and shoulder.  You were off work for three months and then undertook rehabilitation for six to nine months but were unable to resume your previous occupation as you could no longer lift the materials.

21At the end of 2007 you began managing a kebab shot in the CBD, an occupation you held for four years.  Then in 2011 you leased a kebab business in Frankston which you ran until 2015. 

22Currently, the situation is that you and two partners have a plan to open up a car wash/restaurant business.  I received references from your proposed partners indicating the veracity of this scheme which is to be operated by way of a restaurant business first and the car washing business then to follow.

23At the time of this offending, you were residing with your sister.  She and her husband remain supportive of you.  Your counsel reiterated what you told both police and psychologist, Dr Carla Lopez, whose report dated 7 August 2017, was tendered on the plea, that is, that your actions in relation to your niece did not have any sexual connotation but were by way of practise by you for what was a disturbing determination by you to engage in the very unpleasant and criminal activity of up-skirting.

24Over the years, your father has become a hoarder and you have moved back with your parents because of your concerns about your mother living in this environment.  You remain very close to your sister.  There is an extended family and you reported to Dr Lopez that you were reasonably close to them. 

25You have had two significant relationships, one lasted for six years; you thought it would lead to marriage but eventually arguments arose in relation to family issues and that relationship ended.  The second relationship which underlay the accident in 2007 lasted for two years.  You have not had a relationship since, telling Dr Lopez that essentially you felt you had not met the right person.  You said that you had had a casual relationship with appropriately aged women.  You also told Dr Lopez that you saw marriage and children as an important part of your future.

26You have had some difficulties with drugs and alcohol although they do not appear to be current problems.  You began using cannabis when you were 18, primarily for relaxation and while playing the guitar.  You used it for pain relief after your accident but eventually stopped because you felt it was becoming a problem but it appears that this habit did last for some time.  You apparently are careful with alcohol and there is no problem with your use of it.  In your early 20s you casually used ecstasy and speed.

27It appears that after the accident in 2007 you became isolated and socially avoidant.  It was the opinion of Dr Lopez that you were probably suffering from depression at that time.  You attended on Dr Lopez for therapy and treatment I think, on nine occasions.  She described it assessment and intervention.  She said that you engaged and responded appropriately and that, most significantly, you gained insight into what you were doing. 

28It was Dr Lopez's view that the motivation for your offending was linked to an inappropriate coping mechanism that you developed over the years, with boredom and loneliness.  She also believed you were seeking sexual gratification.  It was her view that you had chosen over a considerable period of time after the accident, to deal with the various emotional problems that arose in relation to a low mood and social withdrawal and, at the time, were self-medicating with cannabis.  You expressed to her views that you held about the offending, such as that you were causing no harm, that you were curious and that you could not control it. 

29There was a submission made by the prosecutor during the plea that I should not have particular regard to Dr Lopez's report because you had denied to her obtaining sexual gratification from the material you had downloaded where, in fact, you had made that admission to police.  In my view, Dr Lopez was proceeding on the basis that she was not accepting what you had to say to her.  It was her view that you were gaining sexual gratification from these materials.  It appears that over the years, as was submitted to me by your counsel, you eventually became so involved in the downloading of these materials and the viewing of them that there was a numbing effect and that you felt less and less able to appreciate the wrongness of your actions.

30That wrongness lies primarily in the fact that children, who are the subject of this repellent material, are already, in addition to being exploited, children who are born into some of the most difficult circumstances in the world.  Inevitably, they are poor.  Inevitably, they have no access to education.  Inevitably, they are put to work early.  Inevitably, they lack proper food, proper care, proper clothing; they are already children suffering at the bottom of the socio-economic basket, if you like. 

31Add to this, their complete vulnerability to the appalling exploitation that child pornography involves.  These were already going to be children who would grow up with significant problems as a result of their deprived childhoods.  Add to this the extraordinary indignity and betrayal of being subjected to the sorts of activities that are then filmed by unscrupulous adults seeking commercial gain. One can only imagine the psychological harm to these children would be incalculable. 

32There would be no market for this sort of repellent material, were persons not like you not available and willing to download it and therein lies the harm and it is grave harm indeed.  In those thousands of files that you downloaded,
Mr Yartasi, there are thousands and thousands of victim children, from babies up. 

33It may not be appreciated by those who watch this material but it is one of the vilest trades on the planet, one of the most harmful trades on the planet and the victims are amongst the most vulnerable human beings on the planet.  It is for that reason that the law takes the very stern approach that it does to offending such as yours. 

34In the time that you have attended upon her, Dr Lopez has subjected you to a wide array of testing.  It was her view that you presented a low to moderate risk of reoffending.  She regarded you as a prosocial person who had no personality disorder difficulties.  Certainly, you were not antisocial. 

35She stated at paragraph 39, "Mr Yartasi does not present with significant denial or minimisation of his sexual offences, nor does he condone sexual violence.  He acknowledge that he was able to separate his behaviour online from his own moral code based on the notion that he was not directly responsible for harming the victims."  So many persons who end up before the courts charged with what you are, Mr Yartasi, have entirely that view.

36She continued, "He is now aware of the role he played in victimising the children depicted."  Again, she notes that you denied any sexual intent to wards your niece and that you were interested in, "subsequently filming unsuspecting women though he did not proceed with this behaviour, realising it was wrong."  Dr Lopez stated, "Mr Yartasi evidences a history of poor self-awareness and difficulties managing distress, most clearly indicated by his reported pattern of emotional suppression, social withdrawal and cannabis to cope with negative emotions.  His offending appears to be one expression of his poor offending in the context of loneliness, isolation and lack of intimacy."

37She noted that in the time that you had been attending upon her, you had, at her urging and as a result of the therapy you received at her hands, taken steps to do something active about this.  You were exercising more, you were making active efforts to socialise and to get out.  She also believed that your offending evidenced a level of sexual deviance in terms of maintaining a sexual interest and/or arousal of children over some years through downloading this material.

38Importantly, she stated, "However, this sexual interest is non-exclusive as evidence by his capacity to form intimate adult relationships."  She noted that you denied specific arousal or fantasy revolving around the children.  But again, in my view, she appears to take the view that there was some sexual pleasure in this material for you. 

39Ultimately, in making the assessment, that you presented as largely prosocial and appeared to have realistic plans and the personal and financial means to execute these, she stated, "these include greater social integration, thus improving his prospects of establishing an intimate relationship as well as setting up a business, securing his future employment."  She believed there would be no problems with treatment or supervision. 

40She also noted there are a number of protective factors against future sexual offending, they being your readiness to change as evidenced by seeking help for your behaviour in treatment engagement, the improved social engagement and support that you had sought as a result of this treatment, some knowledge of appropriate relapse prevention strategies which she has undertaken with you and prosocial plans and the ability to carry them out. 

41Again in her summary she states, "A number of psychological vulnerability factors appear to have led to Mr Yartasi's sexual offending, namely emotional dysregulation, low self-worth and preoccupied attachment style.  The latter is categorised by a high desire for intimacy often coupled with anxiety and dependence on relationships to derive self-worth.  In Mr Yartasi's case, these vulnerabilities have manifested in a range of social issues, including low mood and self-esteem and inappropriate coping, leading to social withdrawal, isolation and substance abuse." 

42Ultimately, it seems to me, from Dr Lopez's report, she was tracing a great deal of this back to the end of your relationship and your occupation in 2007.  Up until that time you had done well at school, you had undertaken tertiary education, which you discontinued but then moved into an occupation which you enjoyed and held for some years.  You had an appropriate adult relationship for six years and then another one for two years.  The ending of that second relationship was clearly disastrous for you both physically, emotionally and professionally and it appears that over time, you have withdrawn, you used cannabis a great deal to self-medicate and ultimately fell into use of this appalling material as some sort of compensation for the lacks in your life that had come about in the four years since the accident. 

43Dr Lopez stated, "In the context of significant social isolation, Mr Yartasi appears to have retreated to the use of cannabis and sexual fantasy to ameliorate his mood.  He employed thinking errors to permit his behaviour which he considered private and entirely removed from his outward persona.  Over time, he appears to have lost any balance in his life, oscillating between long work hours and long hours alone online, thus diminishing his prospects of gaining perspective on his behaviour.  Mr Yartasi appears to have eventually relied on the offending as the only source of sexual gratification conveniently available and within his control."

44It was Dr Lopez's view that you lacked the antisocial orientation generally strongly linked to sexual recidivism and you have had the capacity to establish intimate adult relations.  You also have the support of your family and friends. 

45Generally speaking, the courts have made it very clear, and the superior courts in particular have made it very clear, that this offending and the incredibly grave effects that it ultimately has on children is such that a term of imprisonment to be immediately served can only be expected.  Critical to the decision as to whether or not a term of immediate imprisonment will be imposed and the length of that imprisonment is the amount of material downloaded and used.

46In all, you have downloaded a total of 24,140 images and videos which is a considerable amount of material.  You did this on a continuous basis for about a four to five year period.  In the circumstances, Mr Yartasi, and I think this was accepted by your counsel, there is in my view no alternative sentence other than one of immediate imprisonment.

47It was conceded by the prosecution, however, that I could also order that some of that sentence comprise a recognisance to be of good behaviour and I do propose to take that course.  In sentencing you, I take into account your lack of prior convictions, I take into account your plea of guilty which I accept on a more than utilitarian basis, given your cooperation with police.  I accept that you are remorseful for your offending.  I am comforted in that decision by the fact that you chose to attended upon and receive therapy for your offending with Dr Lopez over a considerable period of time. 

48I regard your prospects of rehabilitation as good.  I accept that you have essentially fallen into this offending as a result of the disastrous end to your second relationship and the end to your occupation at the time and that whilst you have kept working and indeed have an admirable work history, have used that to retreat from the world and I accept that you have used child exploitation material as a readily available source of sexual gratification for you.  I do accept that you failed to appreciate that far from being a victimless crime, this is a crime which involves a host of entirely vulnerable victims who are likely to be, the court can confidently assume, forever damaged to a terrible degree by their experiences and which were then viewed by you. 

49However, I accept that you have gained insight as a result of the therapy you undertook with Dr Lopez.  I also accept that your actions in relation to your niece were not sexual; your niece was fully clothed on both occasions, the videos were very short, they appeared to have taken place only on one occasion.  I find it disturbing that you were practicing on your niece in order to then undertake offending against adult women but I do not regard that offending as an indication, as was urged upon me, that your offending against children by use of the child exploitation material was then escalating to actual contact with children.  Nevertheless, it is appalling activity and you will receive a gaol sentence for that offending, although the length of that sentence will be in line with my conclusions as to the nature of that offending. 

50I therefore sentence you as follows.  On Charge 1, you are sentenced to 14 months' imprisonment.  On Charge 2, you are sentenced to ten months' imprisonment.  On Charge 3, you were sentenced to three months' imprisonment. On the summary charge you are sentenced to six months imprisonment.

51The sentence imposed on Charge 1 will commence on 26 October 2017.  The sentence imposed on Charge 2 will commence on 26 May 2018 and together with the State sentences which begin today, that should lead to a total effective sentence of 18 months. The State sentences are to run concurrently. I order that you be released after a period of nine months, on your entering into a recognisance to be of good behaviour for a period of two years.  All right, so you will be doing nine months imprisonment and then will be released on recognisance order.  We just need to prepare the paper work for the order. 

52Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and order that you serve a minimum term of 18 months.  Yes, do you have the documentation, please, of the recognisance?

53MR PORTELLI:  No, Your Honour.  Just a moment, Your Honour.

54HER HONOUR:  He was not remanded in custody?

55MS BANAHALI:  He was, Your Honour, on the last court date.

56HER HONOUR:  Well, then what is the PSD please?  I am sorry, Mr Prosecutor, why would you be saying there is no PSD?

57MR PORTELLI:  Apologies, it slipped my mind.

58HER HONOUR:  Thank you.  Yes?  Mr Yartasi, what date did you go into gaol?

59OFFENDER:  Twenty-fourth of last month, Your Honour.

60HER HONOUR:  Twenty-fourth.  That would mean there ‑ ‑ ‑

61OFFENDER:  Thirty-two days off, yeah.

62HER HONOUR:  Thank you.  I direct that 33 days of that sentence have already been served by way of pre-sentence detention.  Thank you very much.  Yes?

63MR PORTELLI:  There is a couple of other matters.

64HER HONOUR:  Yes?

65MR PORTELLI:  The first one is because imprisonment has been imposed on the two Commonwealth matters, he is sentenced as a serious sexual offender no relation to Charge 3 so that will need to be entered into the records.

66HER HONOUR:  Yes, well you are declared to be a serious sexual offender in relation to Charge 3 and 4. 

67MR PORTELLI:  And will be required to report for life under the Sexual Offenders Registration Act.

68HER HONOUR:  For life?

69MR PORTELLI:  Yes.

70HER HONOUR:  Because of the child pornography charges?

71MR PORTELLI:  Yes, the three Charges on the indictment are all class 2 offences under the act. 

72HER HONOUR:  Fine, I have no discretion; I think that is ridiculous.  In any event, you will be placed on the sex offenders register for life, the obligations of which will be explained to you by your counsel.

73MR PORTELLI:  Lastly, as I foreshadowed, I apply for a forensic procedure of a buccal swab.

74HER HONOUR:  Why would you want that?  How would that be of assistance in the solution of this particular offending. 

75MR PORTELLI:  Charge 3 is a forensic procedure offence.

76HER HONOUR:  It might be but I am asking you, rather that you telling me that it is a procedural offence, of what assistance would that have been in the resolution of these matters?

77MR PORTELLI:  Well, it would certainly aid identification in any further offending.

78HER HONOUR:  All right, I am not prepared to grant it.  Thank you.

79MR PORTELLI:  As Your Honour pleases..

80HER HONOUR:  Thank you.  Yes.  Do we have the recognisance?  Give it to me - so you are meant to fill it out but I will do it.  All right, it has got the wrong name on here, "the defendant Lane Richard Pierce."  Take it back.  Have a look down the bottom.

81MR PORTELLI:  Apart from amending it by hand, I can also send a copy to your associate.

82HER HONOUR:  No, Mr Yartasi has to sign it. 

83MR PORTELLI:  Perhaps we could ‑ ‑ ‑

84HER HONOUR:  Give it to me please, sir?  I am going to put $2000 recognisance - you do not have to pay that, it is just that if you offend in the time - sorry, you will be serving nine months.  You will then be released on a recognisance to be of good behaviour of two years.  If you offend in that following two years, sir, you will be brought back and re-sentenced on these matters and I am attaching a $2000 recognisance which you would only pay if you reoffended, all right?  Yes, thank you.  We will just get Mr Yartasi to sign that please?  Yes, thank you.  Is there anything else I need to attend to?

85COUNSEL:  No, Your Honour.

86HER HONOUR:  Yes, thank you.  There is a capacity for me to attach a condition to the recognisance order and I was thinking about whether I would get you, Mr Yartasi, to go back and see Dr Lopez.  But really it is a matter for you, all right?  You know where to go, you know what you have to do and I do not see the need to put down that you attend a sex offenders program because, in fact, the work that you have done exceeds the amount of time that a sex offence program would take but it probably would not be a bad idea once you are out, all right?  Thank you very much. 

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