Saleem v Director of Public Prosecutions
[2018] VCC 211
•8 March 2018
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
AP-16-3241
| ASIF SALEEM | Appellant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16, 21 November 2017 | |
DATE OF RULING: | 8 March 2018 | |
CASE MAY BE CITED AS: | Saleem v Director of Public Prosecutions | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 211 | |
REASONS FOR RULING
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Subject: Criminal law – appeal – sentence only – Sex Offender – discretion whether to register on conviction under Sex Offenders Registration Act 2004 – Bowden v R (2013) 44 V R 229 – Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 applied – application for registration refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Furstenberg | Furstenberg Lawyers |
| For the Respondent | Ms W Duncan (16/11/17) Ms D Manova (21/11/17) | John Cain, Solicitor for Public Prosecutions |
HER HONOUR:
1 This is an appeal against a sentence imposed by His Honour, Magistrate Patrick Southey at Broadmeadows Magistrates’ Court on 22 November 2016.
2 Mr Saleem pleaded guilty to one rolled up charge of sexual assault contrary to s40 of the Crimes Act 1958.
3 The particulars of the charge were that the accused at Fawkner on 2 February 2016 did intentionally touch Jessica Smith[1] in a sexual manner without her consent and did not reasonably believe that she consented to the touching.
[1]Jessica Smith is a pseudonym.
4 Mr Saleem was convicted and fined $5,000 together with statutory costs of $79.50. Further, he was placed on a Community Correction Order of 2 years’ duration, commencing 22 November 2016, with special conditions that he be supervised and undertake Offending Behaviour Programs, including the Sex Offenders Treatment Program.
5 Under the Sex Offenders Registration Act 2004 (SORA) his Honour Magistrate Patrick Southey exercised his discretion and ordered that Mr Saleem be registered under the Act with the reporting period of 15 years.
6 At the hearing of this appeal, Mr Furstenberg, on behalf of Mr Saleem, confirmed that Mr Saleem did not take issue with respect to the sentence that was imposed. The appeal is limited to a consideration of whether the Court should exercise its discretion to make an order for registration under the Sex Offenders Registration Act 2004 (SORA).
7 This is a matter where registration is not mandatory. Under s11(1) of the Act offences which are not classified as class 1 or class 2 offences (including class 3 or 4 offences) may be subject to registration under the SORA.
8 The charge of sexual assault laid pursuant to s40 of the Crimes Act 1958 is a class 4 offence, according to Schedule 4 of the SORA.
9 The power to make a registration order, therefore, in these circumstances is discretionary.
10 In Bowden v R [2013] VSCA 382, the Court of Appeal made it clear that the inquiry into whether to make a registration order is a two-stage process.[2] First, the sentencing court must be satisfied that the conditions for making such an order are present — namely that the person has pleaded guilty to qualifying offences and that the judge is satisfied to the criminal standard that they pose the relevant risk. Second, the court must determine whether, in all of the relevant circumstances, to make a registration order.[3]
[2][2013] VSCA 382 (Redlich and Coghlan JJA and Dixon AJA)
[3](ibid) [30]
11 It is accepted that Mr Saleem has pleaded guilty to a qualifying offence.
12 The first issue in this matter, therefore, is to determine whether the court is satisfied to the criminal standard that he poses a real risk to the sexual safety of one or more persons or of the community.
13 In Bowden “sexual safety” was not considered rather the Court said for present purposes it suffices to say that a risk that a person may reoffend by committing an offence of a type described in a schedule to the Act would be a risk to the sexual safety of one or more persons or of the community.[4]
[4](ibid) [31]
14 To enliven the discretion to make a registration order under s 11(1), the risk must be assessed to be real.[5]
[5](ibid) [33]
15 That is, the court must be satisfied beyond reasonable doubt that the relevant person poses a real risk to the sexual safety of one or more persons or of the community.[6]
[6]Sex Offenders Registration Act 2004, s11(3)
16 Mr Saleem admitted the facts upon which the Magistrates’ decision was made and admitted his prior criminal history.
17 There are relevant prior convictions. On 1 September 1998 at Melbourne Magistrates’ Court he was convicted of one charge of indecent assault and one charge of unlawful assault and placed on a Community-Based Order for 6 months with the special condition that he perform 120 hours of unpaid community work over 6 months.
18 Thereafter, there have been other court appearances in respect to dishonesty offending (2001); contravene Family Violence Intervention Order (2010); deception offences (2010 and 2011); theft (2012); contravene suspended sentence order (2013); theft and unlawful assault (2013); contravene Family Violence Intervention Order (2013).
19 On 14 March 2014, at the Melbourne County Court, an appeal against sentence for dishonesty offences and one charge of attempt to pervert the course of justice, he was convicted and served a total effective sentence of 14 months with a non-parole period of 10 months, which he successfully appealed in the Supreme Court. The appeal was allowed and a total effective sentence of 16 months with a non-parole period of 8 months was fixed.
20 I have taken into account the circumstances of the charge of sexual assault the subject of the appeal. It is a rolled up charge. Mr Saleem pleaded guilty.
21 The facts are as set out in the summary of events that was read to the Magistrate. No issue was taken with the summary.
22 The events were also recorded by CCTV and I have viewed that CCTV footage in its entirety.
23 I am satisfied that the CCTV footage confirms the complainant’s version of events.
24 The context to the offending was that Mr Saleem was the full time manager of the Global Helping Hands Foundation (the Foundation), a charitable organisation that assisted job seekers in supporting them to obtain employment. He is aged 43 years. The complainant, a 33 year old female job seeker, was referred to the Foundation for assistance and it was through her participation in the program at the Foundation that she met Mr Saleem.
25 The offending occurred on Tuesday, 2 February 2016, after the complainant returned to the foundation following a house inspection during her lunch break. Following her return to work she was alone. All the other job seekers had been sent home early.
26 The CCTV footage shows the complainant going into the computer laboratory area to continue her work. Shortly thereafter she was joined by Mr Saleem. Mr Saleem sat adjacent to her and they began a conversation.
27 The summary states that during the conversation, the accused spoke inappropriately to the complainant about her proposed living arrangements including asking the complainant if she was moving in with a man or whether there were going to be men living at her house. He asked about what the complainant would do about her sexual urges if there were no men in the house. The complainant then explained that she was exposed to domestic violence with her former partner. She became visibly upset. Thereafter Mr Saleem continued to speak to the complainant in an inappropriate manner concerning her sexual relationship with her former partner.
28 On the CCTV footage Mr Saleem is seen comforting the complainant at times. He is seated opposite her, enclosing the complainant’s legs around his legs. He is seen kissing the right side of the complainant’s neck, touching the complainant on her right breast and midriff and once when they were standing, he hugged her.
29 The summary states that when he hugged her the complainant felt a bulge in Mr Saleem’s pants against her pubic area. She became uncomfortable, turned away and sat back down and continued to work.
30 The summary also states that Mr Saleem showed the complainant pornographic videos depicting a male of African descent and a Caucasian female engaging in sexual acts. He continued to speak inappropriately to her.
31 Eventually the complainant left the office, saying that she was going to get some cigarettes. She collected her belongings and left the building. The complainant immediately complained to a friend and thereafter police became involved.
32 At the time of the offending, Mr Saleem was in a position of authority and power, being the full time manager of the Global Helping Hands Foundation. The complainant, a job seeker, was in a lesser and more vulnerable position. The events occurred when she was alone and isolated from the rest of the workgroup.
33 Mr Saleem exploited the situation when it became obvious that she was upset. He acted inappropriately in a sexual manner by touching the complainant without her consent in the manner described.
34 The impact of the offending is graphically described in Ms Smith’s Victim Impact Statement declared on 20 June 2016.
35 Ms Smith speaks of how the sexual assault has disrupted her whole life. She has been diagnosed with Post Traumatic Stress Disorder. Her symptoms include crying uncontrollably, sleeplessness, panic attacks, her sleep patterns are disrupted, experiences difficulties with concentration and she is very emotional and now overreacts to small things. She feels embarrassed, shocked, insulted and upset by the assault. She has difficulty sleeping. She does not trust men. It has impacted on her ability to have sexual relationships. She is very wary of others especially men and has stopped being an open, caring and engaging person. She has developed a hard shell to protect herself. Her confidence and self-esteem have been impacted. She has difficulty leaving home and suffers bouts of anxiety and depression. She is not positive about her future and has withdrawn from her social networks and family on occasion. She has lost confidence working in an office environment. She was a professional singer and can no longer perform on stage. She has not been able to work due to her symptoms. She lives with her mother and no longer feels confident enough to live independently.
36 She is undergoing intensive counselling to address her symptoms at great expense and has depleted her savings.
37 By way of background, Mr Saleem was born in Pakistan in 1974 and came to Australia in 1997. He has a bachelor degree from Lahore. Mr Saleem divorced his first wife in 2005. There is one child born of that union who is cared for by Mr Saleem’s former wife. He married a second time in Pakistan in 2006. Mr Saleem has four children aged 10, 7, 5 and almost 4 years from his second marriage. His wife came to Australia in 2009.
38 After the offending Mr Saleem’s employment ceased and currently he is unemployed.
39 He has had a kidney removed but enjoys reasonable health.
40 I have noted the sentencing remarks in the matter of Saleem v The Queen [2014] VSCA 190. It is noted that Mr Saleem had been diagnosed with a depressive disorder and a chronic anxiety disorder with obsessional traits. He had participated in a Men’s Behavioural Change Program.
41 Mr Furstenberg relied on the fact that the CCO would operate to significantly mitigate the risk of re-offending. He relied on both the supervision condition and the requirement that Mr Saleem participate in the Sex Offenders Treatment Program which he submitted significantly reduced the risk of re-offending.
42 The legislation required the Court to have regard to future risk and that was properly addressed by Mr Saleem’s participation in the program.
43 Mr Furstenberg confirmed that Mr Saleem successfully completed his Parole order in 2014.
44 The CCO assessment report dated 22 November 2017 prepared for His Honour Magistrate Southey states that Mr Saleem was assessed as being medium risk of re-offending.
45 Mr Furstenberg submitted, all those factors combine, and are protective such that the Court ought to exercise its discretion to not order registration pursuant to the Sex Offenders Registration Act.
Conclusions
46 The offending conduct is objectively serious. It occurred at the complainant’s workplace where she was entitled to feel safe and respected. Mr Saleem abused his position of authority and power vis–a–vis the complainant. Mr Saleem was aware that the complainant was upset and crying about what had happened to her in the context of her domestic relationship. He took advantage of her vulnerability for his own sexual gratification.
47 The complainant has been extremely traumatised by the offending behaviour as detailed in her Victim Impact Statement.
48 Mr Saleem has a relevant prior criminal conviction although I noted that it is of some antiquity. On 1 September 1998 he was convicted of indecent assault and unlawful assault. The offending occurred in the context of his employment as a taxi driver. When a female passenger did not have the correct fare Mr Saleem tried to tongue kiss the passenger without her consent.
49 There was an occasion when Mr Saleem was charged with unlawful assault or indecent assault. The LEAP entry notes that the charge was laid following a complaint made on 23 January 2007 by Ms Kurebayashi, a Japanese national. Ms Kurebayashi answered an advertisement that he had placed for lodgings. She alleged that she moved into Mr Saleem premises as a boarder. She paid a month’s board in advance. She alleged inappropriate sexual touching. Mr Saleem was arrested and charged.
50 Subsequently the matter did not proceed. The Prosecution has confirmed that the police records concerning that complaint have been destroyed. Given that there is no evidence before the Court concerning the factual basis for the laying of the charge I have not taken that information into account in exercising my discretion.
51 In Nigro v Secretary to the Department of Justice[7] the court stated that it will not always be the case that the relevant risk, though sufficient to pass the threshold of s11(3) will warrant such restrictions by a registration order.
[7] (2013) 304 ALR 535
52 When determining whether to make a registration order I must give consideration to the magnitude and the nature of the risk (re-offending by commission of sexual offences with serious consequences for the victim). Both the gravity of the harm and the degree of likelihood of the risk eventuating will be components of the assessment, although the primary question will be the degree to which the risk may materialise.
53 Those considerations are to be balanced against the serious consequences for the offender being required to submit to an onerous registration and reporting regime.
54 The obligation on the sentencing judge, when exercising this discretion, is to impose the registration obligations under the Act, when and to the extent that is necessary to give effect to the statutory purpose.
55 The sentencing orders of the Learned Magistrate provide for the imposition of a punitive Community Correction Order of 2 years duration with special conditions requiring supervision and the undertaking of offence behaviour programs in particular, the Sex Offenders Treatment Program.
56 Mr Saleem has indicated his willingness to consent to such an order and understands the consequences of contravention.
57 There is no evidence before the court concerning his current risk of sexual re-offending. I am satisfied however that the CCO conditions do address the issue of reducing the risk of re-offending in a like manner.
58 Apart from a contested contravention of reporting obligations under SORA, Mr Saleem has no other matters outstanding and has not re-offended.
59 He is married and has four dependent children.
60 Given he pleaded guilty to the charge and that he has expressed his willingness to participate in programs to address his offending behaviour in particular, the Sex Offenders Treatment Program, I am satisfied that shows some insight and understanding that he must not reoffend.
61 I am satisfied that successful completion of such a program will reduce the risk of re-offending. Therefore, I am not satisfied beyond reasonable doubt that Mr Saleem poses a risk to the sexual safety of one or more persons, or of the community.
62 Further I have had regard to the onerous nature of the reporting regime that is required under the SORA.
63 Balancing all the matters that I am required to I will not exercise my discretion to make an order requiring registration under SORA, therefore the application is refused.
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