DPP v Ali

1. Earlier this year, after a short trial before a jury, Muhammad Ali (the offender) was found guilty of an offence of committing an act of indecency on a person under the age of 10. The maximum penalty for that offence is imprisonment for 12 years. It is now my task to sentence him.

2. The victim of the offence, who I will not name, attended a childcare centre where the offender was employed as an assistant educator. One day, when he was 4 years of age and being supervised by the offender, the offender briefly touched and squeezed the young boy’s penis over his clothing.

Breach of Trust

3. I will be speaking later about the assumptions made by the criminal law regarding the harm that such brief contact causes, but for now I will speak about the gross breach of trust involved.

4. Four-year-old children are vulnerable in the extreme. They are powerless to resist this type of offending, and they are often incapable of reporting it. As a childcare worker the offender can have been under no misapprehension concerning the vulnerability of the child in this matter.

5. All children of that age depend on adults to care for them. It is a modern necessity of life that many of them will be placed in childcare centres. The parents of such children place their trust in the workers at such facilities. There is no way that they can interrogate the workers to determine whether their child is safe, or the likelihood that the worker will do them harm. Parents have no choice but to trust that their children will be cared for. They have to trust the welfare of their children to people like the offender who are strangers to them. They are entitled to assume that such people will do what they have been entrusted to do, that is, care for their children. They are entitled to assume that their children will not be used by a childcare worker for their own sexual gratification as the offender has done here.

6. I have referred to the breach of trust involved in this matter as “gross”. Indeed, it is hard to imagine a more significant breach of trust than the abuse of a four-year-old child by a worker entrusted with that child’s care in a childcare centre. Prior Offence

7. Remarkably, this is not the first time that the offender has faced sentence for offending of this kind. In November 2023, Baker J sentenced him for a similar offence committed at the same childcare centre (DPP v Ali (No 3) [2023] ACTSC 345 [Ali (No 3)]). He had pinched another boy’s penis through his pants. He pleaded not guilty but was found guilty by a jury.

8. Baker J imposed a sentence of imprisonment of 18 months with a non-parole period of 12 months. The sentence dated from 20 November 2023 so that the non-parole period expired on 19 November 2024 and the total sentence on 19 May 2025. Since then, he has been bail refused and his continued detention was because he was facing trial for the offence for which I will now sentence him.

9. In her sentencing judgment Baker J assessed the objective gravity of the offence before her. I have come to the same conclusion, which is not surprising given the similarity of the offender’s misconduct on both occasions.

10. Baker J also summarised and made findings regarding the offender’s subjective features. The material before me is relevantly identical to the material before her Honour and there was no challenge to her Honour’s findings. Accordingly, I can be very brief when I refer to the offender’s background.

11. The offender completed high school in Pakistan. He moved to Australia, firstly to pursue a certificate in project management and then to acquire a diploma of early childhood education. He started work as a security guard before becoming employed in the childcare industry in a casual capacity from 2014. He was unemployed on two occasions because of drug use. After the second period of unemployment, he obtained work at the childcare centre where the offence occurred.

12. He has some problems with his mental health. The offender's psychiatrist diagnosed him with suffering from schizophrenia with differential diagnoses of schizoaffective disorder or bipolar affective disorder. The offender told the author of a pre-sentence report that he had previously undergone depot injections of antipsychotic medication to regulate mental health related concerns, and this was confirmed by the offender's psychiatrist.

13. The offender rarely consumes alcohol but, as is obvious from the circumstance that he has had periods of unemployment due to his drug use, he is a drug user, or at least he was a drug user; using cannabis, cocaine and oxycodone at various times. There is no connection, however, between his drug use and his offending. Apart from the offence dealt with by Baker J, he has a relatively minor criminal history. There's an offence of drink driving in 2013 and drug driving in 2023.

14. As regards the mental illness from which the offender apparently suffers, there was no submission before me, nor before Baker J, that what has become known as the “Verdins Principles” are engaged: see R v Verdins [2007] VSCA 102. The evidence before me does not justify any finding that offender’s moral culpability was reduced because of his mental health issues, nor that he would serve his time in custody harder than a person without these illnesses, or that his mental health would be adversely affected by a period of imprisonment.

Character

15. The offender relied on references from his brother and a friend. The utility of those references was limited, however, because the authors of the references expressed doubts about whether the offender was actually guilty of the offences which the two juries have found proved.

16. In any case, this is one of those cases where the offender’s prior good character assisted him to get his job as a childcare worker, which in turn put him in a position where he could commit the offence for which I will sentence him.

17. For those reasons any positive aspects of the offender’s prior character are of no relevance to me in determining what sentence to impose upon him.

Current Sentencing Practice

18. I was referred to a number of comparative cases by the prosecutor. I mean no criticism of him when I say that those cases were of limited utility. Perhaps there is something to be thankful for in the unavailability of a large pool of sentences imposed in relation to offences involving a breach of trust as significant as this one. And, as I will explain later, the sentence imposed by Baker J is the best guide of all to current sentencing practice for offences of this type.

General Deterrence

19. In the circumstances of this case general deterrence is of prime importance. There are many aspects of life where risks cannot be eliminated. It is a sad thing to say, but it is true, that ultimately regulation, licensing and working with children checks can never eliminate the risk that people like the offender will be employed in a childcare centre and will give in to whatever urge it is that makes them choose to act the way the offender has in this case.

20. Courts have a part to play in making childcare centres as safe for children as they can possibly be. One way the courts do that is through imposing significant, even harsh, sentences when offending of this kind is detected.

21. Everyone caring for a child must be made aware that if they do what the offender did in this case, they will go to jail for a significant time.

Personal Deterrence

22. The offender has expressed no remorse. Presumably based on what the offender has told him, his brother wrote a letter addressed to me in which he expressed his belief in the offender’s innocence. Given the lack of any acceptance of responsibility by the offender, there is little to indicate that the offender would not act the same way again if given the chance.

23. Hopefully he will not be able to work in a childcare centre again, but the likelihood that he will be deported immediately on his release from custody (a subject to which I will return) raises the possibility of him working in a childcare centre outside of Australia. In any case it is inevitable that he will come into contact with many children in social settings in the future. For that reason, the sentence I impose upon him must bring home to him the serious consequences for him if he offends against children in the future.

Harm

24. While courts assume that the more intimate the contact the greater the harm, that does not mean that touching and squeezing a child’s penis over his clothes is incapable of causing significant harm. One only has to spend a short time in the criminal courts in Australia to understand that some people are profoundly harmed by conduct the criminal law regards as relatively minor.

25. It is apparent that the young boy the subject of the present offence has suffered greatly since the offender’s abuse of him. His family have suffered too. It is impossible to determine whether the entirety of this harm is a consequence of this offending. I tend to think that it is, but whether it is or not doesn’t really matter.

26. The criminal law assumes that children will be greatly harmed by being sexually abused, especially where such abuse represents a gross breach of trust as in the present case. That is so whether victim impact statements are read or not. Consequences for a victim of child sexual abuse such as those described by the parents in the present case are entirely foreseeable. Such consequences are one of the reasons, if not the primary reason, for significant sentences being imposed for sentencing of this kind.

27. When sentencing the offender for his other offence, Baker J eloquently referred to the effects of sexual offending being not limited to the particular child victim, but that they “ricochet across the families of those victims and through the broader community”. It is clear beyond doubt that her Honour’s observations apply in the present case. The parents of the young child in this case have suffered greatly too, in ways which were also foreseeable.

28. And then we have the effect on the wider community. This case will only add to the recent publicity given to incidents where children have been physically or sexually abused by childcare workers. How are parents supposed to respond to cases of this kind? Do they abandon the use of childcare centres which would often result in them having to give up employment? Do they become hypervigilant which risks distressing their children through constant questioning? There is no good solution to the dilemma which cases such as this present to the many parents who, as part of modern life, need someone to look after their children.

29. Again, I endorse what Baker J said about this topic: However, against these matters, is the very young age of the victim (4 years), and his acute vulnerability. For young children such as KC, childcare centres are of critical importance. Childcare centres provide a supportive and caring environment for children to develop cognitively, socially and emotionally. Young children depend upon their carers to meet these needs, and not to abuse their vulnerability. Childcare centres also enable parents to engage in paid employment, and for many families, including single parent families, including single parent families, the availability of childcare is necessary for the child to grow up in an environment of economic stability. Accordingly, it is vital that parents and other caregivers can have trust in childcare institutions: see similar Stoupe at [93]. Isolated Incident?

30. Both the prosecutor and Ms Baker Goldsmith for the offender submit that the sentence imposed by Baker J was correct in the circumstances before her Honour. I note that the sentence was not the subject of an appeal and, having regard to her Honour’s judgment I agree with the joint position advanced by the parties before me.

31. Despite the caution expressed by the NSW Court of Criminal Appeal in Fong v R [2002] NSWCCA 320, where an attempt to mount a parity argument based on a single comparative case was described as “deeply flawed”, in the unusual circumstances of this case where another judge has sentenced the same offender for a relevantly identical offence, I will use the sentence imposed by her Honour as a benchmark when determining the sentence I will impose.

32. However, her Honour was sentencing the offender for a single offence. Her Honour’s sentence was based on the assumption that the offence before her Honour was an isolated one: see Ali (No 3) at [26].

33. We now know that that was not the case. Even taking her Honour’s sentence as a starting point, the fact that it is now the case that the offender is being sentenced for a second offence of indecently touching a child in his care, must be recognised by imposing on him for this offence, a sentence harsher than that of Baker J.

34. Given that the child the victim of the present offence said that the child the subject of the offence before Baker J was present at the relevant time, it is possible that both boys were indecently touched as part of the one incident. On the other hand, the evidence of the boys was that they were touched by the offender in different locations, which suggests the possibility that on two separate occasions the offender has indecently touched a child at the childcare centre and that the offending with which I am dealing was thus not isolated.

35. Ultimately it is not necessary to resolve this issue. Whether the boys were touched at the same time or not, it is necessary for me to impose a harsher sentence than that of Baker J. If they were indecently touched at the same time, then the offence with which I am dealing is aggravated by the presence of another child. If they were not indecently touched at the same time, then the offence with which I am dealing is not an isolated example of such sexual misconduct by the offender. Whichever alternative is correct, the offender is deserving of a longer sentence than that imposed by Baker J.

36. I should make something clear. At the time he was sentenced by Baker J he had been found guilty of a single offence. Appropriately therefore he was sentenced on the assumption that this was an isolated incident. We now know that this is not the case. No part of the sentence I impose on the offender today is intended to in some way “correct” the sentence imposed by Baker J because of what we now know.

Mitigation

37. There is not a lot that the offender can rely on to mitigate his sentence. He has not expressed remorse. There is nothing to suggest that he has good prospects of rehabilitation. The references attesting to his good character are of little assistance because they question whether he is guilty of offences which two juries have found proved beyond reasonable doubt. And for reasons I have already explained his mental illness does not reduce his moral culpability or otherwise effect the sentence to be imposed upon him. Totality

38. Ms Baker-Goldsmith accurately concedes that no sentence other than one of actual imprisonment is appropriate. Applying the principle of totality there will be a modest degree of concurrence with Baker J’s sentence. The degree of concurrence will be modest to reflect that the offence for which I am imposing sentence was committed upon a completely separate victim. The harm this complainant has experienced is not moderated by the fact that the offender has done this to another child.

Deportation

39. The evidence before me was that upon the offender’s release from prison after serving the sentence I will shortly impose upon him, he will be kept in immigration detention until his deportation from Australia. The offender has received various letters form Australian Border Force to that effect. This prompted Ms Baker-Goldsmith to submit that rather than imposing a sentence of imprisonment which included a non-parole period, I should decline to set a non-parole period, with the effect that her client would have to serve the entirety of the sentence I will impose upon him without the possibility of parole.

40. She clarified her submission as being that the sentence I should impose would be the same length as the non-parole period I would have otherwise imposed.

41. I will not do what Ms Baker-Goldsmith suggests. Her submission is based on the assumption that there will be no change to the offender’s visa status between now and when his sentence will end. I have no material before me to decide the validity of such an assumption. It is likely he will be deported, but that there will be a change in his visa status is not impossible.

42. More importantly, the High Court has spoken on this issue: R v Shrestha [1991] HCA 26; 173 CLR 48 (Shrestha). At 72-73, Deane, Dawson and Toohey JJ give two compelling reasons why the likelihood of deportation should not of itself compel a judge to conclude that it is inappropriate to set a period of eligibility for parole. In R v Simon [2003] NSWCCA 147 at [50] Sheller JA, with whom Hidden J and Carruthers AJ agreed, said that Shrestha is authority for the proposition that: The fact that, upon release, the applicant may be deported so that the conditions of the non-parole period may not apply to her after she has left Australian is not a matter to be taken into consideration when determining what that period should be.

43. See also, in this jurisdiction, DPP v Moala (No 3) [2023] ACTSC 306 at [56]. Orders

44. I sentence the offender as follows: (1) For the offence of act of indecency upon a person under the age of 10 years pursuant to s 61(1) Crimes Act 1900 (ACT) (CC 2024/52), the offender is convicted and sentenced to imprisonment for two years, commencing on 20 August 2024, and expiring on 19 August 2026. (2) I set a non-parole period of 18 months, which will expire on 19 February 2026.

I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman. Associate: Date: 30 October 2025