THE QUEEN v HUMZAH JAMAL EL REZ 1 APRIL 2021
COMMENTS ON PASSING SENTENCE BRETT J
Mr El Rez, you have pleaded guilty to the following charges:
(a) transmitting child pornography using a carriage service; and
(b) causing transmission of child pornography using a carriage service.
Both charges are contrary to relevant provisions of s 474.19(1) of the Commonwealth Criminal Code. They each carry a maximum penalty of 15 years’ imprisonment.
You committed these offences between 27 August and 6 September 2017. You were 23 years of age at the time. You were in communication with a 14-year-old female who resided in the USA, by virtue of the fact that you were both participating in an online game known as World of Warcraft. This is a legitimate game and there was nothing improper or illegal about communications concerning or related to your common participation in the game. However, the offences were committed when the subject matter of your communications with each other became sexual. It is not clear how this started, but when it did, you engaged in explicit sexualised conversation by way of an exchange of electronic messages. Count 1 relates to messages which you sent to the victim which described sexual acts in explicit detail. The victim responded in a similar way. It can be inferred from the content that the context and purpose of these communications was your mutual participation in a simulated sexual encounter.
The second offence was committed as part of the same series of conversations, and was a continuation of the sexual encounter. At one point, you asked the victim to send a photo in terms which clearly referred to her genitals. She responded by sending you a video of her naked from the pelvis down masturbating. The following day, without further prompting from you, she sent you an image of a vagina. It is accepted by you that your request caused the transmission of what was clearly child pornography.
Shortly after this, you broke off contact with the victim. There is no suggestion that you stored the images, nor that you shared them with any other person.
When questioned by the police, you claimed that you believed that the victim was 16 or 17 years of age. However, this seems to have been a vague belief not based on any substantial enquiry or investigation. It is not submitted that you did anything to check or confirm her age before you engaged in this conversation.
You are now 26 years of age. You have no relevant prior convictions. You have had some work in the past but have not worked for 3 to 4 years. Your counsel informs me that you have had poor mental health and experienced social withdrawal and isolation for some time. It seems that this may have been the case when you committed these offences.
There is no question that the offences themselves are serious. They involved the use of the internet, and exposed a 14-year-old girl to sexualised conversation, and resulted in her sending to you by the internet extremely intimate images of herself, including one of her performing a sexual act. By doing this, she placed herself in a very vulnerable position. General deterrence is a significant sentencing consideration because of the need to protect children from conduct of this nature and because of the insidious use of the internet in respect of the creation and transmission of child pornography.
Having said this, I think that the objective seriousness of this case can be distinguished from other cases involving the use of the internet for this purpose. There is no suggestion in this case that you were utilising the Internet in a predatory way to target and recruit vulnerable young people to produce and transmit child pornography to you. Your crimes were opportunistic and isolated to the one victim. They were more in the nature of a sexual encounter between you and the female. You did not use subterfuge or attempt to disguise your identity. The conversations were all conducted over Facebook messenger. You had shortly before the crimes posted a photograph of yourself holding a driver’s licence which displayed your real name and address. I do not accept that your acts are mitigated by your belief as to her age because it seems to me that you took no reasonable step to discover or confirm her true age. Further, it is apparent from some messages that you at least realised that she was underage. I infer that you were not concerned about that matter. Having said this, the difference in age between you was relatively modest. Of course, however, at 14, she was clearly vulnerable, and the Court must proceed on the basis that the protection of vulnerable children from conduct such as this is a primary sentencing consideration.
There are other matters which can be taken into account in your favour. You co-operated fully with police and facilitated access to your computer. You pleaded guilty. There is no suggestion of any other offending of this nature before or after. Your personal circumstances suggest that there is a limited need for specific deterrence and that you are otherwise a person of good character.
The serious aspects of the offending and the need to emphasise general deterrence require the imposition of a sentence of imprisonment. However, having regard to the particular circumstances of this case and your personal circumstances, including in particular your age and lack of prior convictions, as well is the other mitigating factors, I am satisfied that the relevant sentencing aims can be achieved by imposing such a sentence but providing for your immediate release on a recognisance release order.
Accordingly, I order as follows:
1 You are convicted of the crimes to which you have pleaded guilty.
2 You are sentenced to a global term of imprisonment of 15 months. I direct that you be released forthwith upon giving security by recognisance in the sum of $5,000, conditioned that you be of good behaviour for a period of two years from today.
3 In accordance with s16F of the Crimes Act, I explain to you that if you fail to comply with a condition of the recognisance, in particular, if you fail to remain of good behaviour, including by committing an offence such as this during that time, you may be summonsed to appear before the Court and, if a breach has been established, you may be called upon to forfeit the amount of the recognisance, or the order may be revoked and you may then be required to serve the whole or part of the sentence. Further powers that the Court has in the case of a breach of a condition of the recognisance is to require you to perform community service, extend the recognisance period or take no further action. Finally, I am required to explain to you that the recognisance may, at any time during its currency, be discharged or varied in accordance with the provisions of the s 20AA of the Crimes Act.
4 Finally, I am required to make an order under the Community Protection (Offender Reporting) Act 2005, unless I am satisfied that you do not pose a risk of committing a reportable offence in the future. Having regard to the circumstances of this case, although I think the risk of further offending is very low, I am not able to be satisfied that there is no risk, particularly given that the medium of the offending was the internet. Accordingly, I must make an order. The maximum period, given that there were two offences, is 15 years. Given my assessment of the extent of future risk of offending, I order that your name be placed on the register pursuant to that Act and that you comply with the reporting obligations under that Act for a period of three years from today.