STATE OF TASMANIA v YASSIR SHIFA ALI 25 OCTOBER 2022
COMMENTS ON PASSING SENTENCE WOOD J
Yassir Shifa Ali, has pleaded guilty to one count of involving a person under the age of 18 years in the production of child exploitation material.
The defendant and the complainant began communicating with each other by Snapchat in the middle of 2019. They were unknown to each other prior to that. The complainant was only 12 years of age and she turned 13 in September of 2019. The defendant was 20 years of age but he told the complainant that he was 18.
At first, the defendant’s communications were normal and sociable. He asked her to send photographs of her face and then began asking her if she wanted to be more than friends. She reminded him that she was only 13 years of age. The following day, 20 October 2019, the defendant asked her to send him photographs of her body. She said no but he repeatedly asked her to do that. In response, the complainant sent a photograph of herself from the waist up, wearing only a bra, and not showing her face. The defendant asked her if he could take a screenshot of the image and she agreed. The next day the defendant asked for another photograph and again the complainant said she did not want to send another one. Again, the defendant pressured her and she sent another similar photograph. The defendant took a screenshot of that photograph.
During conversations, the defendant asked for the complainant’s phone number and to meet her and an arrangement was made to meet at a park near her house. The complainant did not go as she felt nervous and scared. The defendant messaged her saying that she owed him a picture. His messages became aggressive and demanding. The complainant blocked his account so he could not communicate with her on Snapchat. He created a second account and sent her the first photograph she had sent him telling her that he would upload it to his “Snapchat story” so that her friends would see it, unless she sent him another photograph.
Because of his threat to display her photograph she felt pressured and trapped. Because of that, she sent him a photograph of her lower half, naked, with her legs apart and showing her genitalia. She received a notification that the defendant had commenced screen recording the photograph. The complainant then blocked his account and messages.
I take into account that the defendant has not distributed the photographs to anyone else or shown them to anyone else.
The complainant confided in a friend and later her mother. The matter was reported to the police on 28 October when the police seized the defendant’s mobile phone. He participated in a recorded interview with police on 2 December 2019. Speaking generally, he was not honest with police and denied asking the complainant for the photographs.
The defendant’s conduct has had a significant impact on the complainant, as disclosed in her victim impact statement. It has disrupted her schooling. For a while she was very worried that the photographs were sent to people she knew and she worries about where the photographs are. She has felt frightened about going out in public and seeing the defendant. She is now a more anxious person and less confident than she used to be.
Mr Ali, I am sure you understand that it is a serious matter to pressure children to provide photographs of this kind. It is distressing and harmful to children to treat them in this way and it is a grave matter to demand of a child that they send photographs of their naked body. Children are naturally trusting of adults, and in their communications on-line and via social media they are particularly vulnerable, often naïve about people’s motives and people claiming to be their friends. Sentences need to be imposed which deter adults from this conduct. Often, a gaol sentence will be the appropriate sentence.
In your case I have taken into account all your circumstances, and I am satisfied that a gaol sentence is not required. I am satisfied that you have learnt your lesson and that you are most unlikely to reoffend. I now explain this in more detail.
Mr Ali is a 23 year old student who lives with his extended family and siblings. His family are very supportive. Mr Ali and his family have overcome significant difficulties. His parents are from Eritrea and fled to Sudan because of war. Mr Ali was born in a refugee camp in Sudan and has spent most of his life there with his siblings. His family came to Australia as refugees in 2016 when Mr Ali was 17 years of age. Adjusting to life in Australia was very challenging due to the language barrier and cultural differences. Because of these factors, for some time he was socially isolated and he started using Snapchat hoping to communicate with people and make friends. He communicated with people indiscriminately. He was not intending to communicate with children. At first, he did not know the complainant’s age and he found that out after they had been exchanging messages.
Mr Ali is sorry and genuinely ashamed of his conduct. He has expressed remorse and his understanding of the seriousness of his behaviour to the author of the pre-sentence report and also to a clinical psychologist, Mr Minehan. The court process has taken a long time to resolve and he has been very stressed and worried about possible court outcomes, reinforcing to him the seriousness of his behaviour. I also take into account that he has been subject to online threats, and I expect he may need some support in dealing with the worry of those threats.
The defendant’s social circumstances have improved and he has good support within the community. The Migrant Resource Centre provides mentoring and access to programs and his case manager, Mr David speaks highly of his engagement and attitude. He has joined soccer clubs and has positive social connections and does not use alcohol or drugs.
He is studying English, has had casual work fruit picking and has obtained his driver’s licence. He is a dutiful son and shares responsibility with his siblings for assisting his parents and caring for them. His goal is to undertake a mechanical apprenticeship and obtain work in the automotive industry.
Taking into account his circumstances, I am satisfied that this is an isolated instance of offending and there is no concern of future risk. Relevantly, the defendant has no prior convictions and Community Corrections have concluded that a risk assessment is not warranted and that he only needs a very low level of intervention from their service. Mr Minehan notes there is no suggestion of any ongoing pattern of deviant behaviour. I take into account that in the three year period since offending, Mr Ali has not committed any further offences, he has matured and is making strong progress. Mr Ali, I am satisfied that you are well along the path to being a responsible member of the community. I am also satisfied that an order under the Community Protection (Offender Reporting) Act is not needed.
Balancing the goals of rehabilitation and general deterrence as well as the need to reflect and mark the seriousness of the offending, I make the following orders.
I record a conviction. I make a home detention order for a period of four months and a community correction order for 18 months.
The home detention order is as follows. The core conditions contained in s 42AD(1) of the Sentencing Act are imposed. These include that:
- During the four month period of the order, you must not commit an offence that is punishable by imprisonment;
- You must during that period reside at [address stated in the order];
- You must, during the operational period of the order, remain at those premises at all times as specified except if for a relevant reason you are not on those premises.
- You must, during the period of four months, permit a police officer, probation officer or prescribed officer to enter your home and in the case of a police officer, conduct searches and take samples as referred to in the Sentencing Act.
- You must comply with the reasonable and lawful directions of a probation officer or prescribed officer, including any directions as to employment;
- You must, during the four month period of the order submit to electronic monitoring, including by wearing or carrying an electronic device;
- During that period that you are required to submit to electronic monitoring:
- you must not remove, tamper with, damage, disable or interfere with the proper functioning of any electronic device or equipment used for the purpose of electronic monitoring;
- you must not allow anyone else to do so; and
- you must comply with all reasonable and lawful directions given to you in relation to the electronic monitoring, including in relation to the installation, attachment or operation of a device, or a system, used for the purposes of electronic monitoring.
Additionally:
- You must attend the Community Corrections office at Highfield House, 114 Bathurst Street in Hobart before 10 am tomorrow for induction with respect to this order;
- You must, during the four month period of the order, maintain in operating condition an active mobile phone service, provide the contact details to Community Corrections and be accessible for contact through this device at all times;
- You must submit to the supervision of a Community Corrections officer as required by that officer;
- You must not, during the four month of the order, take any illicit or prohibited substances. Illicit and prohibited substances including:
- Any controlled drug as defined by the Misuse of Drugs Act 2001;
- Any medication containing an Opiate, Benzodiazepine, Bupropion, Hydrochloride or Pseudoephedrine, unless you provide written evidence from your medical professional that you have been prescribed the relevant medication.
I also impose a community correction order for a period of 18 months. The statutory core conditions are imposed. These include that you must not during that period of 18 months from today, commit an offence punishable by imprisonment and you must report to a probation officer at 114 Bathurst Street, Hobart no later than 10 am tomorrow. For that period of 18 months, you must report to a probation officer as required by the probation officer and must comply with all of the reasonable and lawful directions of a probation officer or a supervisor.