CDirector of Public Prosecutions v Bu Khader

[2021] VCC 1279

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00113

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

HUSSAM HASSAN BU KHADER

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2021
DATE OF SENTENCE:	9 September 2021
CASE MAY BE CITED AS:	CDPP v BU KHADER
MEDIUM NEUTRAL CITATION:	[2021] VCC 1279

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Using a carriage service to procure a person believed to be under 16 years of age for sexual activity (1 count) – Plea of guilty during the currency of the Covid-19 pandemic – Undercover police operative – Good prospects of rehabilitation – No prior convictions

Legislation Cited:         Criminal Code Act 1995 (Cth); Sentencing Act 1991 (Vic); Sex Offenders Registration Act2004 (Vic)

Cases Cited:DPP(Cth) v Singh [2017] VSCA 146; R v Verdins 16 VR 269; Worboyes v The Queen [2021] VSCA 169

Sentence:  Term of imprisonment of 3 months – immediate release on a recognizance release order – additional pecuniary penalty of $2,500

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APPEARANCES:	Counsel	Solicitors
For the CDPP	Ms N Stevic	Commonwealth Director of Public Prosecutions
For the Accused	Dr M Fitzgerald	Doogue + George Criminal Lawyers

HER HONOUR:

1Hussam Hassan Bu Khader, you have pleaded guilty to one charge of using a carriage service to procure a person believed to be under 16 years of age for sexual activity, contrary to section 474.26(1) of the Criminal Code (Cth). The maximum penalty for this offence is 15 years’ imprisonment. Instead of or in addition to a penalty of imprisonment, the Court may impose a pecuniary penalty, in this case, of no more than 900 penalty units, that is $189,000. As Charge 1 is a Class 2 offence under the Sex Offenders Registration Act 2004 (Vic) and is a registrable offence, upon sentence you will be a registrable offender required to comply with the reporting obligations, as set out in that Act, for a period of 8 years.

2The circumstances of your offending were set out in the Prosecution Opening upon Plea and may be summarised as follows.[1]

[1]        Exhibit 1.

3You were 24 at the time of the offending. You used an online platform, Kik (a freeware instant messaging mobile app), to send messages to the profile of a 14-year-old female child, identified as “Emz”. The profile was operated by an undercover police operative from the Joint Anti Child Exploitation Taskforce.

4During the period of offending, which lasted just under 3 hours commencing at 4.38 pm, you befriended Emz on Kik; started a text-based conversation with her and identified yourself as a 25-year-old male from Parkville called Toni.[2] Emz told you she was a 14-year-old female who was in year 8.

[2]        I note you gave your age of 25 according to the Lunar Calendar.

5You expressed surprise that she was on an adult chat site and asked her why she was there. You told her you were looking to have sex with a girl and asked if she had ever had sexual contact before. When she told you she had never had sex, you said: “I think we don’t match … I’m looking for another things”. She asked you what you were looking for, and you said oral sex. She said she had not had oral sex before. You again said: “That’s why I said we don’t match. Because I’m looking for these type of things and you are not I think”.  She asked if you wanted her to do those things and you said: “if you want”. You said you wanted to perform oral sex on her, and for her to perform oral sex on you.

6You arranged to meet her at McDonald’s in Ormond for that purpose and went there at the arranged time. She did not attend. You exchanged messages with her urging her to attend, offering to drive her home but she said she could not attend. You went home. You contacted her the next day to see if everything was alright, but she did not reply. 

7You were arrested and charged on 18 May 2020 and on 22 January 2021 indicated  at a committal mention that negotiations were ongoing. You were committed for trial and pleaded guilty to the charge on the indictment at a directions hearing on 25 March 2021.

8The prosecution provided written submissions dated 27 August and 2 September 2021 as well as a table of comparative appellate court decisions. In oral submissions, the prosecution conceded that the communications took place on an adult platform, that your offending was therefore not premeditated, and that at two points in those communications you expressed doubts about proceeding. The prosecution submitted that this offending should not be seen as falling at the lower end of seriousness because the communications escalated over a short period, you planned to meet Emz and went to the meeting point. Whilst also conceding that you have taken steps to address your offending, it was submitted that there was still a role for denunciation, just punishment, specific and general deterrence and protection of the public. Given the maximum penalty prescribed for this offending, it was submitted that an appropriate sentence would involve the imposition of a term of imprisonment requiring you to serve some time in jail.

9Your counsel tendered written submissions accompanied by comparable County Court cases;[3] a forensic psychological report from clinical and forensic psychologist Dr Angela Sorotos dated 3 August 2021;[4] a report from forensic counsellor Mr Geoffrey Burrows dated 4 August 2021;[5] and three character references (from your wife, a fellow student, and a friend).[6]

[3]        Exbibit A.

[4]        Exhibit C.

[5]        Exhibit B.

[6]        Exhibit D.

10The report of Mr Burrows indicates that you voluntarily participated in the Sex-Offender Treatment Program (“SOTP”) on seven occasions between 8 February and 30 July 2021 at your own expense. You expressed remorse to him for your offending. You told him that you resorted to online sex chat when you were having difficulty having intimate relations with your wife and to alleviate your feelings of loneliness and boredom. You identified that you had a poor understanding of female sexual development and sexual consent, of how to achieve meaningful intimacy or express your emotions, feelings of inadequacy and poor coping skills. You had a genuine but misguided belief that teenagers have the capacity to consent to sexual behaviour with adults and that such behaviour is harmless. Through therapy, you have understood that teenagers are not capable of providing sexual consent and that sexual behaviour with them can cause them many long-term problems. You learned strategies to manage your feelings of inadequacy, which included abstaining from online sex chat, and reported to him that you had successfully applied those strategies.

11In summary, Mr Burrows concluded that you made good progress in the SOTP, demonstrating insight into factors which contributed to your offending and into the impact of your actions, and have expressed an interest in ongoing treatment.

12Your personal circumstances were outlined in the report of Dr Sorotos. You are 25 years old and were 24 at the time of offending. You live with your wife and two children aged three years and nine months respectively. In June 2021, you graduated with a Bachelor of Civil Engineering, but have not yet secured employment in your field.

13You were born and raised in Saudi Arabia. Your father was a wealthy businessmen who had three wives and 13 children. The wives hated each other. You are the son of his first marriage, and have four siblings.  When you were 12 years old, your father moved all three families into separate floors of the same building. He would spend one night at a time with each family. Your parents did not get along, but you were close to your mother. You were a compliant child. You were bullied in primary school but learned to defend yourself. You were clever and enjoyed school. You had no sex education, and were sexually abused at the age of 12 and 14 by more than one male. You were shown adult pornographic movies by your cousin from the age of 12.

14After Year 12, you went to study English in Canada, then began a chemical engineering course.

15You married your wife, who is your first cousin, when she was 16 years old. It was an arranged marriage in Saudi Arabia in 2016. You first saw her when you got engaged. She joined you in Canada when she turned 18 in 2017.

16While you were in Canada, your father divorced his second wife and arrived there as a refugee, with his third wife and nine of his children. He was dispirited.

17You returned to Saudi Arabia in December 2018, but could not find work. You then decided to come to Australia in early 2019, and transferred to civil engineering. You plan to return to Saudi Arabia with your family after this matter is finalised. Your wife is studying IT at university but will be able to complete her course online. You have been feeling homesick and lonely since your brother returned home in 2019. You had a poor relationship with your wife and found COVID-19 very difficult, so much so that you would go to university overnight. You had a strong libido but found that, in 2020, your level of intimacy with your wife reduced dramatically due to your poor mental state. You reported no sexual interest in men or children but are attracted to mature looking adult tall blonde women. When you were lonely, you sometimes joined online chat groups with men and women. Some of the chats with adult women would turn into chats about sex, but you did not meet them.

18In relation to this offending, you told her that you did not know what the age of consent is in Australia, but that you told Emz that she should not be in the adult chat group. You expressed remorse for your offending and said you would never repeat the behaviour.

19Dr Sorotos considered that, at the time of offending, you were suffering an acute episode of a Major Depressive Disorder which had been going on for several years. This depressive episode created a condition in which you were more likely to employ maladaptive coping strategies, including opportunistic sexual encounters with underage girls. She noted that your understanding of the age of consent laws may have been influenced by the cultural context of Saudi Arabia but noted that you were explicit about your intentions and would only have sexually pursued the victim if she were willing. She noted that your offending did not involve any coercive or grooming elements, nor the callous, deviant or predatory nature sometimes seen in this type of offending. She conducted a sexual violence risk assessment and concluded that you pose an overall low risk of sexual offending. Given that your offending is not linked to any preference for teenage females or children, she considered that no offence specific intervention is required. However, she recommended psychoeducation and individual therapy to manage your precipitating factors (loneliness, depression, unhappiness in the marriage).

20Finally, she noted that due to your poor mental health and naïve disposition, as well as your history of being a victim of childhood sexual abuse, you are ill-prepared for exposure to the prison environment among other child sex offenders. She considered that incarceration and the separation from your children would exacerbate your mental health problems.

21Your wife, Mahibah Alzain, provided a letter of support in which she stated that you have been a loving husband and father but became depressed in 2019 when your parents separated. She stated that your mental state has improved since you started seeing a psychologist and you have become more socially connected and happier. She indicated that she does not drive and relies on you to take your son to child-care and to do the shopping and attend appointments. You also care for your young daughter 12 hours per week while she attends classes. She does not know how she would manage without you.

22A fellow student, Sajad Mehdi, wrote that you were a well-motivated student, and were kind and helpful to other students.

23A friend, Mahammad Nasser Y Alnuwaysser, wrote that apart from this offending, you are regarded as an upstanding member of the Saudi community. You have accepted responsibility for your offending and expressed deep remorse for it. You have benefited from psychological counselling.

24Your counsel made submissions in support of a disposition involving a term of imprisonment with release forthwith on recognizance. As I have largely accepted the submissions made on your behalf, I incorporate them in the discussion below. 

Findings and reasons

25It is well established that the offence of using a carriage service to procure a child to engage in sexual activity is a serious one, and is ‘”designed to protect young people from the considerable harm that may be done to them by [online] communications, even if physical sexual activity does not ensue”.[7] General deterrence is of prima facie importance and in many cases the offence will require a sentence of immediate imprisonment.

[7]        DPP (Cth) v Singh [2017] VSCA 146 [45].

26I turn to the gravity of the offending. I acknowledge that there is one aggravating feature of your offending, that is, that you made arrangements to meet with her and then attended the meeting place.

27However, for the following reasons I consider that your offending is a relatively less serious example of this type of offence than those canvassed by counsel in their submissions.

28First and foremost, the contact occurred on an open internet messaging platform, “Kik”, which is intended for use by adults, and there is no evidence that you were searching internet sites or chatrooms frequented by children or young people in order to establish contact for sexual purposes. You expressed surprise that Emz was in an adult group chat and also told her a bit later that you did not match because of her sexual inexperience. Secondly, in this context, the offending was opportunistic and there was no evidence of planning or preparation for sexual activity (such as arrangement of a hotel or the purchase of condoms). Thirdly, the communications were very limited, lasting less than three hours. Apart from urging Emz to attend the meeting point once you were there, the communications otherwise did not include threats, coercions or demands, or deviant content, nor any predatory or grooming elements, and did not include requests for indecent images or requests that she delete messages or not tell anyone about the conversation.

29Fourthly, in terms of your moral culpability, whilst I consider that you had some appreciation of the wrongfulness of your conduct, I am satisfied that you are a  relatively young person from a cultural background in which you received no sex education, your family organised your marriage with a girl, your first cousin, aged 16 and you had a genuine but misguided understanding of the capacity of teenagers to consent to sexual activity. In addition, I accept the opinion of Dr Sorotos that the offending occurred in the context of an acute depressive condition and an absence of problem-solving strategies or skills to cope with this condition as well as the problems in your relationship with your wife, which were compounded by the COVID-19 pandemic. I accept that your low self-esteem and sense of isolation contributed to your having recourse to sexualised internet communications as a form of escape. Nevertheless, given that you persevered with the communications with Emz, arranged to meet with her and attended the meeting place, your moral culpability remains significant.

30In mitigation, I note the following matters.

Plea of guilty

31You made significant admissions in a recorded interview on 18 May 2020 and you entered a plea of guilty at an early opportunity. Your early plea has utilitarian value in that it avoids the need for a trial, shows your willingness to facilitate the course of justice, and demonstrates remorse. You have also expressed remorse to Dr Sorotos and Mr Burrows. Very importantly, as a further indicator of your remorse and your prospects of rehabilitation, and notwithstanding the opinion of Dr Sorotos that such a program was not required or recommended for you, you have voluntarily participated in a SOTP which commenced in February 2021 prior to the formal resolution of the matter. You are also entitled to a further amelioration of sentence because your plea has been made during the currency of the COVID-19 pandemic.[8]

Criminal history and character

[8]        Worboyes v The Queen [2021] VSCA 169 [39].

32You have no prior criminal history in Australia or Saudi Arabia. Since leaving school and until your recent graduation, you have been a university student, supported by the Saudi government. 

Mental health

33As indicated above, I accept the evidence of Dr Sorotos that you were suffering from a Major Depressive Disorder at the time of offending, and that you resorted to internet-based sexual communications because of your isolation, loneliness, poor social and interpersonal skills and marriage problems. I consider that the fifth and sixth limbs of Verdins[9] are enlivened. In this regard, I accept the evidence of Dr Sorotos that, due to this condition and your personality factors, a sentence of imprisonment may weigh more heavily upon you than it would on a person in normal health. I also accept her conclusion that there is a serious risk that imprisonment will have a significantly adverse impact on your mental health given your depressed psychological state and your wife’s dependence on you for driving on a daily basis, for child care and financial support.

Prospects of rehabilitation

[9]        R v Verdins 16 VR 269 [20], [31].

34I note Dr Sorotos’ assessment that, overall, you pose a low risk of sexual reoffending as well as Mr Burrows’ assessment that you completed the SOTP and expressed insight into your offending, improved understanding of normative female sexual development and the requirements for sexual consent, and had developed skills to cope with the stressors in your life. I note that you are proposing to continue psychological therapy. I consider that your prospects of rehabilitation are very good for the following reasons. First, you have no prior convictions and this offending was committed over a short time-frame during a period of isolation, stress and depression. Secondly, you have just graduated in your field and are motivated to obtain work upon returning with your family to Saudi Arabia. Thirdly, you were relatively youthful at the time of offending, and rehabilitation remains an important sentencing consideration. Fourthly, you have the support of your wife and have rebuilt your relationship with her. Fifthly, you have been assessed as being at low risk of reoffending and, even though Dr Sorotos did not consider this was required, you have already completed a SOTP for six months and made important gains from it.

Conclusion

35In all the circumstances, I consider that all of the purposes of punishment can be satisfied by a sentence that does not require your immediate imprisonment.

36On charge 1, using a carriage service to procure a person believed to be under 16 years of age to engage in sexual activity, you are convicted and sentenced to a term of three months’ imprisonment, to be released forthwith on a recognizance release order upon giving security of $500 that you will comply with the condition that you are to be of good behaviour for two years. This means that if you are found guilty of another offence in the next two years, you could be brought back before me and you could be ordered to serve the term of imprisonment I have imposed today. You are also fined $2,500. This fine is imposed after taking into account your financial circumstances, which include that you are working as a kitchen-hand at McDonald’s receiving $500-$600 per week; that your wife receives $3120 per month from the Saudi government as an overseas student; that you jointly pay $1782 per month in rent; and that you and your wife have $8000-$9000 in cash savings, but otherwise no assets either here or in Saudi Arabia.

37In addition, I note that you are now a registrable offender required to comply with the reporting obligations as set out in the Sex Offenders Registration Act 2004 (Vic) for a period of 8 years. It is very important that you comply with these obligations as criminal charges punishable by a term of imprisonment can be laid against you if you do not comply.

38I indicate, pursuant to s 6AAA of the Sentencing Act 1991 (Vic), that if you had not pleaded guilty to the offending I would have sentenced you to a term of immediate imprisonment for a period of 6 months.