R v Jaffari
[2014] VCC 2027
•02 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-01414
| THE QUEEN |
| v |
| ALI JAFFARI |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 02 December 2014 | |
CASE MAY BE CITED AS: | R v Jaffari | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2027 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Cth) | ||
| For the Accused |
HER HONOUR:
1 Ali Jaffari, you have pleaded guilty to one charge of accessing child pornography using a carriage service. The maximum penalty for this offence is 15 years' imprisonment.
2 The circumstances of your offending are set out in the Prosecution Opening for Plea Hearing which was tendered as Exhibit A. In brief, the circumstances are as follows. Between 28 July 2012 and 9 May 2014 you accessed child pornography material. When your computer was analysed on 13 May 2014 temporary files or images depicting child pornography were found on your computer. There were 27 child pornography images. Those images were classified by police according to the scale of seriousness used for these matters. There are six levels with Level 6 including drawings, cartoons et cetera. The remaining five levels are in order of seriousness with Level 1 being the least serious and Level 5 the most serious. Five of the images on your computer were Level 1. Eight of the images were Level 2. Eight of the images were Level 3 and six of the images were Level 4.
3
A search warrant was executed on 9 May 2014 and items including your computer seized as a result of you having disclosed to a psychologist on
8 May 2014 that you had been accessing child pornography. You had said you had done so whilst attending public libraries and had used the Wifi in libraries on your personal laptop computer. You were seeing the psychologist for an interview connected with the specialised offender assessment and treatment service under a Community Correction Order that had been imposed on you.
4 On 9 May 2014 the police also interviewed you. You made admissions to police and told them that the age of the children in the child pornography was between 12 and 19. You said you had a preference for gay boys of that age and had searched on websites for such material. You were charged and arrested on 15 May 2014 and you were granted bail on 20 May 2014.
5 You are classified as a refugee and your protection visa was cancelled by the Minister for Immigration on 16 May 2014. A condition of your bail is that you reside at the Maribyrnong Immigration Detention Centre and you have resided there since you were bailed on 20 May 2014.
6 The committal in this matter proceeded as a straight hand-up brief with you indicating your plea of guilty on 8 August 2014.
7 You have no criminal history predating the period of offending for which you have been charged on this indictment. You have relevant antecedents in that on 22 August 2013 you were convicted in the Magistrates’ Court of six counts of an indecent act with a child under sixteen and one charge of attempted indecent assault. Those offences occurred on 30 November 2012. You were placed on a Community Correction Order for 24 months on condition that you perform 300 hours of unpaid community work and be assessed and participate in the sex offenders program. It was that assessment which was the context of your disclosures on 8 May 2014.
8 On 20 February 2014 in the County Court an appeal against that sentence was allowed and the orders of the magistrate were set aside but the same sentence was effectively imposed on you. On 20 August 2014, that matter returned to the County Court. As a result of you being detained in the Maribyrnong Detention Centre you were unable to complete your Community Correction Order so the order was cancelled and you were sentenced to a 3 month aggregate sentence which was wholly suspended for 6 months. I have had the benefit of reading the reasons for sentence of Her Honour Judge Sexton given on 20 August 2014. I note and agree with Her Honour’s comments about the unusual circumstances you face and the difficulties in sentencing you.
9 As a result of the other offending you became a registrable offender for the purposes of the Sex Offenders Registration Act 2004. Being found guilty of the offence in this indictment means that you have now been found guilty of three Class 2 offences and become a registrable offender with a requirement that you report and otherwise comply with the Act for the period of your life.
10 In sentencing you I have taken into account your personal circumstances. I have derived those circumstances from the submissions made by counsel on your behalf and from the information contained within two psychological reports which were tendered on your behalf. Those reports are a report from Mr Jeffrey Cummins, psychologist, dated 24 September 2014 and a report from Mr David Ball, psychologist, dated 16 August 2013.
11 You are now 36-years-old. You were born in Afghanistan and when you were about eight-years-old your family fled from Afghanistan to Pakistan. You lived in Pakistan until 2010. You had no education in Pakistan as your family did not have any documentation. In 2003 your father was killed. Your mother died of a stroke in 2007. You have three younger brothers and four younger sisters, all of whom still live in Pakistan. You entered Australia in October 2010 as an asylum seeker on a boat from Indonesia.
12 You told Mr Cummins that you had a sexual attraction to males between twelve and nineteen. You said that you believed that if an adolescent male wanted to have sexual contact with you, then this would be acceptable. You also spoke about child pornography on the basis that it was not a crime and that everybody watched pornography. Unsurprisingly, Mr Cummins was of the following opinion.
“On the basis of Mr Jaffari’s comments at interview, I was left in no doubt that he required participation in a sex offender treatment program and that he required psychosexual education.”
13 Mr Cummins refers to the possibility that you are suffering from Post-Traumatic Stress Disorder as a result of your background but he was not able to make that diagnosis as you were reluctant to speak about certain matters. Mr Cummins is of the opinion that you are unlikely to willingly participate in offence specific treatment or to cooperate with supervision. Mr Cummins assesses you at being at high risk of reoffending by viewing child pornography and engaging in contact sexual offending with underage males.
14 I note that what you told Mr Cummins differs markedly from what you told Mr Ball. You had told Mr Ball that you had no attraction to children or teenagers.
15 In sentencing submissions your counsel relied on a number of matters in mitigation of sentence, including your personal circumstances, your candid disclosures and your plea of guilty. Your counsel also submitted that your offending was less objectively serious, taking into account the low volume of material and that there was no distribution or profit involved. Your counsel suggested that an appropriate order would involve rehabilitation and counselling to moderate your behaviour.
16 The prosecutor in sentencing submissions stressed the importance of general deterrence and specific deterrence as sentencing factors. The prosecutor also referred to your lack of insight and the continuing risk to the community. She submitted that an immediate term of imprisonment was called for.
17 During the plea hearing I expressed the view that you ought to be required to undertake the Sex Offender Program. That could be a requirement of a Community Correction Order. There was considerable discussion about whether or not you could do such an order whilst in detention. The prosecutor helpfully obtained information from the Department of Immigration which indicated that the Department would try to assist but there could be potential issues including difficulties in being able to provide escorts for Mr Jaffari to attend programs.
18 I have now had you assessed as to your suitability for a Community Correction Order. You have been assessed as unsuitable for a number of reasons. These include the potential problems because you are in detention which lead to the previous application to have such an order cancelled. The other reasons include the difficulties in engaging you even with an interpreter present. It is reported that you have significant language difficulties but on occasion resist using an interpreter. There are also concerns about your reluctance to engage in counselling and your attitude towards your offending behaviour. It is reported that you said that you would continue to look at such images and that it was the internet providers’ responsibility to remove them.
19 Ali Jaffari, it is very troubling that you do not appear to understand that accessing child pornography is wrong and illegal. Whatever you think, children engage in sexual behaviour and are photographed or filmed doing it because they are threatened or persuaded to do so by adults who want to exploit them. The children are harmed when they are photographed and filmed. They are further harmed by the photographs and films being distributed around the world for ever after. The law in Australia and many other countries says that children must be protected from this sort of exploitation and harm. By accessing child pornography you are encouraging those who make it and causing further harm to the children by viewing it. It is clear from what Mr Mullins has said, and what you have said, that there is a serious and continuing risk that you will continue this behaviour. You must be punished for what you have done and that punishment must be severe enough to deter you and others from doing it again.
20 I remain of the opinion that it is extremely important that you receive counselling and education so that you understand that you must not offend against children again. Despite the problems I consider there was some progress, in that at least you talked about your sexual thoughts when you were assessed in May 2014, and you were more open with Mr Mullins than you had been with Mr Ball. That suggests that you might over time be able to be rehabilitated. Your rehabilitation is necessary in order to prevent future harm to children whether in Australia or overseas. At present your prospects of rehabilitation are low. From the report I have received I consider that you are unsuitable for a Community Correction Order for a number of reasons but principally because you are in immigration detention and that there is no practical way for me to require you to do a program such as the Sex Offender Program administered by Corrections Victoria.
21 The objective seriousness of your offending is at the lower end because only a limited number of images, with a limited level of seriousness, were found. There was no distribution and no profit involved. Accepting that, the seriousness of your offending, and the need for a sentence reflecting denunciation, just punishment and general and specific deterrence, means that a sentence of imprisonment is the only appropriate sentence remaining open to me in practice.
22 You are entitled to a significant discount for your plea of guilty which has saved the expense and inconvenience of a trial. I have also take into account in mitigation of sentence your personal circumstances and your candid disclosures.
23 A further sentencing consideration is that you have ultimately received a suspended sentence of imprisonment for offending that occurred during the period of this offence. It is, of course, of considerable relevance that you have been in detention since 20 May 2014. You have been locked up since that time, at least in part because of this offending, whether or not the conditions are the precise equivalent of jail. The principles of totality and proportionality must be applied taking into account those matters.
24 Taking into account the matters I have outlined, I sentence you as follows. Please stand.
25 On Charge 1 of accessing child pornography, you are convicted and sentenced to 3 months imprisonment.
26 You are to be released forthwith on a recognisance release order, with you giving security by recognisance of $500 and there being a condition that you will be of good behaviour for 15 months. Whether you remain in immigration detention and for how long is a matter for different authorities.
27 The recognisance of $500 does not have to be paid immediately. It may be required to be paid if you breach the recognisance release order. You will breach the recognisance release order if you commit any offence in the next 15 months. If you do that, you may be brought back before this court and you can be re-sentenced. The sentence that the court could impose could range from no sentence up to imprisonment.
28 You need to be aware that if you commit similar offences, and come back before me, then it is most likely that I would make you do the 3 months' imprisonment, as well as any sentence for the other offending. This is very similar to the suspended sentence that Her Honour Judge Sexton put you on. You must make sure that you are of good behaviour and do not commit any offence in the next 15 months.
29 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 6 months.
30 I declare that you have served six days of this sentence by way of pre-sentence detention.
31 You will be liable to the requirements of the Sex Offender Registration Act for life. In a moment I will ask my associate, Ms Ollquist, to come with your counsel, Mr Kelly, and show you some documents. The first document will be the recognisance release order. You will be asked to sign that, to say that you understand the conditions of the order and the consequences of breaching the order.
32 You will also be given documents which give you information about the Sex Offender Registration requirements. You will be asked to sign a document to say that you have received that information.
33 Thank you. Please take your seat, Mr Jaffari. Ms Ticky, do you have the recognisance release order there?
34 MS TICKY: Yes. I've completed that, Your Honour.
35 HER HONOUR: I'll just have a look at it and sign that.
36 MS TICKY: Yes. On the second page, Your Honour, is where Your Honour is required to sign, and I've marked that.
37 HER HONOUR: Good, thanks Ms Ticky. The other thing I need to say that I should have announced is that the sentence commences today.
38 MS TICKY: Yes.
39 MS KELLY: May I approach Mr Jaffari, Your Honour? I'll commence explaining (indistinct) documents.
40 HER HONOUR: Yes.
41 MR KELLY: Thank you, Your Honour.
42 HER HONOUR: Thank you, Mr Kelly. Ms Ticky, anything else I need to deal with?
43 MS TICKY: No, Your Honour.
44 HER HONOUR: Thank you. Mr Jaffari can go now. Mr Jaffari, I strongly recommend that if you get any opportunity that you do try to engage in some counselling. Thank you also to the interpreter.
45 Thank you. Please take your seat, Mr Jaffari. Ms Ticky, do you have the recognisance release order there?
46 MS TICKY: Yes. I've completed that, Your Honour.
47 HER HONOUR: I'll just have a look at it and sign that.
48 MS TICKY: Yes. On the second page, Your Honour, is where Your Honour is required to sign, and I've marked that.
49 HER HONOUR: Good, thanks Ms Ticky. The other thing I need to say that I should have announced is that the sentence commences today.
50 MS TICKY: Yes.
51 MS KELLY: May I approach Mr Jaffari, Your Honour? I'll commence explaining (indistinct) documents.
52 HER HONOUR: Yes.
53 MR KELLY: Thank you, Your Honour.
54 HER HONOUR: Thank you, Mr Kelly. Ms Ticky, anything else I need to deal with?
55 MS TICKY: No, Your Honour.
56 HER HONOUR: Thank you. Mr Jaffari can go now. Mr Jaffari, I strongly recommend that if you get any opportunity that you do try to engage in some counselling. Thank you also to the interpreter.
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