Director of Public Prosecutions v Chaouk

[2024] VCC 759

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR -23-01150

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMAD CHAOUK

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2024
DATE OF SENTENCE:	27 May 2024
CASE MAY BE CITED AS:	DPP v Chaouk
MEDIUM NEUTRAL CITATION:	[2024] VCC 759

REASONS FOR SENTENCE

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Subject:	CRIMINAL LAW
Catchwords:	Engaging in sexual activity with person under 16 years – Using a carriage service – Persistent sexual abuse of a child – Outside Australia – Possessing or controlling child abuse material – Accessed or obtained using a carriage service – Procure a child to engage in sexual activity outside Australia - 25 percent discount applied for early plea of guilty and police co-operation – charge 2 aggravated – No prior convictions – Sentenced as youthful offender – Strong prospects of rehabilitation
Legislation Cited:	Commonwealth Criminal Code; Sentencing Act 1991
Cases Cited:	R v Mills [1998] 4 VR 235
Sentence:	4 years imprisonment, non-parole period of 18 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Carlander-Munro	Commonwealth Director of Public Prosecutions
For the Offender	Mr P. Smallwood Mr K. McLaughlin

HER HONOUR:

1Mohamad Chaouk, you have pleaded guilty before me to one charge of engaging in sexual activity with a person under 16 years using a carriage service contrary to sub-s474.25A(1) of the Commonwealth Criminal Code, one charge of persistent sexual abuse of a child outside Australia contrary to s272.11) sub-s(1) of the Commonwealth Criminal Code and possessing or controlling child abuse material obtained or accessed using a carriage service contrary to sub-s474.22A(1) of the Commonwealth Criminal Code.

2Normally I would proceed immediately to the facts underlying this offending but I am aware that this is a case involving a great deal of anxiety insofar as the family is concerned, so I will announce my sentence first so that everybody knows what it is rather than having to wait until I reach the point at the end of my sentencing remarks.

3Before I hand down that sentence, I hope it is clear that under the current sentencing regime pursuant to the Commonwealth Criminal Code, I have no choice but to impose a term of imprisonment and that I have done.

4I have applied the 25 per cent discount in relation to both an early plea of guilty and co-operation with police, in combination with, in the latter case, other matters peculiar to your case.

5I have determined, therefore, that on Charge 1 you will be sentenced to two years and six months’ imprisonment.

6On Charge 2, three years and six months’ imprisonment.

7And on Charge 3, 12 months’ imprisonment.

8I have taken into account, with your consent, Mr Chaouk, the further charge of procuring a child to engage in sexual activity outside Australia and that is contrary to s272.14(1) of the Commonwealth Criminal Code in reaching that decision.

9The base charge will be the sentence imposed on Charge 2, which is three years and six months.

10I order that four months of the sentence imposed on Charge 1 and two months of the sentence imposed on Charge 3 be served cumulatively to the sentence imposed on Charge 2, giving a total effective sentence of four years.  I order that a minimum term of 18 months be served before becoming eligible for parole.

11So the family does know, and you, Mr Chaouk, what that sentence is.

12I now turn to the facts underlying this offending.

13At the time of this offending you were aged between 23 and 24 and living in Melbourne. The complainant was aged between 13 and 14 and living with her family in New Zealand.

14Charge 1 is a rolled-up charge which encompasses three video calls between yourself and the complainant between 13 January and 15 April 2022, while you were both living in your respective countries.

15Charge 2 is an aggravated offence which concerns the persistent sexual abuse of the complainant between 7 May and 12 May 2022 by you engaging on at least four occasions in sexual intercourse and two occasions of sexual activity with the complainant whilst you were in New Zealand.

16The two of you met in around late August 2021 while you were both playing a game Black Ops 111 on PlayStation 4.  You were playing with another man named Sean[1] and you spoke using a headset function.  During one of the games the two of you requested to be a friend to the complainant on PlayStation.  She was playing on her brother’s account and did not know either of you, and at the time you thought she might be 16 or 18.

[1] A pseudonym.

17For about a week the three of you played together almost every day, sometimes, however, Sean would take a break and the two of you would chat.  You had a girlfriend at the time.

18Around this time the three of you discussed their ages and at this time the complainant told you she was 16 or 17 or 18. 

19Sean began to play less frequently and you and the complainant chatted more, at some point exchanging Instagram accounts.  Around this time through chatting on Instagram the conversation became more flirtatious and then matters progressed where Sean said he no longer wanted to be friends with  you or the complainant because the two of you began talking more and more on PlayStation and more and more on Instagram.  After about three months you became much closer and conveyed to each other that you cared for each other.

20Around Christmas time formally you told each other that you liked each other.  You told the complainant her age and she told you she was 13.  You then suggested that because of the complainant’s age you should just stay friends and the complainant agreed.  The two of you continued to text for a few days on a non-sexual basis but after about a week went back to “liking” each other.

21On around 20 February 2022 the complainant’s parents became aware she was communicating with an older male online, confiscated her devices and found some of your interactions.  They were able to determine the person communicating with their daughter lived in Australia and on 8 March 2020 the complainant’s uncle sent you an email specifically outlining that the complainant was 13 years old and warned that if you persisted in trying to contact her, her family would take the information to the authorities, the email ending ‘And have you reported and identified as a paedophile and banned from entering this country?  Do not contact our daughter/my niece, [the complainant], again.’

22However, in April 2022 the complainant received a phone for her birthday and although her parents told her not to speak to you again, began communicating with you and eventually you planned to meet in person.

23On 12 April 2022 you booked an Airbnb in regional New Zealand for a period from 8 to 15 May 2022, contacting the Airbnb host to ask if you could have a friend visit there.

24On 8 May 2022 you flew to Auckland, hired a car and drove to the area in regional New Zealand where the complainant lived.  That evening she sneaked out of her house to meet you, you picking her up from a bus stop on a street, taking her to the Airbnb where the two of you sat on the couch and kissed, which was the first occasion of sexual activity which is the subject of Charge 2.

25Eventually you moved to the bed, the complainant undressed herself and the two of you had penile/vaginal intercourse in which you used no protection and ejaculated.  This was the first occasion of sexual intercourse which is the subject of Charge 2.

26The two of you then went to McDonalds, returned to the Airbnb where you napped for two or three hours and at about four o’clock in the morning on 9 May 2022 you kissed the complaint, this being the second occasion of sexual activity the subject of Charge 2.

27You then again had penile/vaginal intercourse, and whilst you did not use protection did not ejaculate inside her.  This was the second occasion of sexual intercourse the subject of Charge 2.

28Later that day the two of you bought snacks and food for the week and went out for lunch, then went back to the Airbnb, kissed and talked and at 4.00 pm you took the complainant home. 

29You repeated this behaviour, the two of you, during your stay in New Zealand whereby the complainant would sneak out of her house at night and stay at the Airbnb, you would spend the day together and you would drop her home at about 4.00 pm, as her parents worked and did not get home until 5.00 pm.

30During the stay the two of you would get ice-cream and sushi and go for walks on the beach, the complainant saying in her statement that you ‘wanted to do what everyday couples do.’

31Ultimately, as I have said, Charge 2 relates to four occasions of sexual intercourse where it is said that you ejaculated in her vagina twice but on other occasions on the side of her leg onto a towel.

32Later in the week the complainant stayed the night at the Airbnb and in the morning her mother rang to ask where she was.  The complainant said she was on the school bus.  Her mother asked why her brother could not find her then told her to go to school and that she would talk to her when she got home.  You drove the complainant to school but she left soon after.  The two of you spent the day together the complainant saying this was probably the last time the two of you would see each other.  You bought the complainant a necklace and asked her to be your girlfriend.

33When the complainant got home her parents took her phone but she had already deleted everything from it relating to what had gone on between you.  Ultimately, she told her parents the truth about where she had been and her parents reported the matter to police.

34In about June or early July the complainant got her phone back and began speaking to you again.

35The charge to be taken into account, procuring a child to engage in sexual activity outside Australia, relates to conversations between yourself and the complainant about the fact that she had not had sex before.  You said she did not have to have sex if she did not want to.  You said the two of you could just kiss and you spoke about contraception.

36During the relationship between the two of you, you spoke about your future, about how she wanted to be a stay-at-home mum.  The two of you planned on buying land, building a house, you giving her free reign of how she wanted the kitchen to look.  You told her that you had never thought about this when you were with someone else and she said it was the same for her because she had never thought of the future with her previous boyfriends.  There was a plan that when she was 19 or 20 she could come to Australia, by which time you would have finished university and have a job and the two of you could start living your lives together.

37The prosecution case is that these communications before your travel to New Zealand were intended to procure her for sexual activity when you arrived in New Zealand, which then occurred.

38At some point after 12 May 2022, as I have said, the complainant’s family reported the offending to the New Zealand police who executed a warrant at her home and seized devices.  They obtained her bank account showing you had transferred her $2 in July and $150 in August.  After identifying that you lived in Melbourne the matter was referred to the Joint Anti Child Exploitation Team. 

39You were arrested on 13 January 2023 while you were trying to travel from Melbourne to Denpasar.  You were asked to provide your phone and passcode, which you did.  Investigators located images of the complainant on your device.  You participated in a record of interview, mostly responding ‘no comment’ but confirming that you had last travelled to New Zealand in April or May in 2022.  You told police you had travelled to New Zealand, stayed at an Airbnb but did not recall what you did on that trip or where you went after you landed in New Zealand.

40Analysis of your iPhone revealed that on three occasions you took screenshots of a live video call between yourself and the complainant.  I will attach the prosecution opening to my sentencing remarks but in summary those screenshots depicted the complainant exposing her breasts, vagina and buttocks while undressing, of you masturbating while she watched on the other end and other sexual activity that took place between you.  Those images were obtained on 13, 14 and 15 April 2022.

41At the time that the analysis of your phone took place 57 explicit images of the complainant that you had received from her via Instagram were also found on your phone.  You had screenshotted the material so it could be retained for your own collection.  Each of those images was categorised as Category 1 abuse material.

42You indicated an intention to plead guilty at a second committal mention on 7 July 2023 and it is accepted by the prosecution that this was a plea that was made at the earliest opportunity.

43You have no prior convictions.

44The offending is such that it falls within a category pursuant to the Sex Offenders Registration Act which makes it mandatory that upon conviction of these charges you will be placed on the Sex Offenders Register for life.

45The maximum penalty in relation to Charge 1 is 20 years’ imprisonment and a mandatory minimum head sentence of five years’ imprisonment is imposed in relation to that charge.

46In relation to Charge 2, the maximum penalty is 30 years’ imprisonment with a mandatory minimum head sentence of seven years.

47The maximum penalty for Charge 3 is 15 years’ imprisonment.  No mandatory minimum head sentence is required.

48I now turn to your personal circumstances.

49You are now 25 years old.  You are the third of four children born to your parents who emigrated here from Tripoli in 1988.  You come from a hard-working and pro-social family.  Your father worked long hours as a taxi driver before dying in 2020.  Your mother is currently on a disability support pension due to a chronic pain condition in her back and legs.  Your eldest sister is a teacher, married with children, and another sister is a lawyer.  Your younger brother is undertaking tertiary studies. 

50You are the first member of your family ever to have engaged in criminal offending and you, yourself, have no prior or subsequent offending history.

51Your counsel informed me you enjoyed a stable and happy upbringing but at school you struggled with numeracy and literacy, although no learning disorder was ever diagnosed.  You repeated Year 8 and continued your secondary education to mid-way through Year 12 at Victoria University High School when after failing several exams you took up the school’s suggestion that you might be better suited to employment than study.  You then obtained a Certificate 2 in Building and Construction and then began a Diploma of Engineering at RMIT. 

52However, in 2019 your father, to whom you were extremely close, was diagnosed with an aggressive brain cancer, he quickly became extremely ill in what your counsel described as a rapid and graphic decline and you left your studies to care for him.

53In her reference to the court, your sister Noef Sarah wrote that you witnessed your father suffering seizures during which he would fall to the ground and lose mobility and described your care of him as including helping him to eat, walk and shower.

54Your counsel told me that during this period you became isolated at home, mainly engaging in the care of your father and spending much of the rest of your time in your bedroom in online gaming, through which you ultimately met the complainant.

55Following your father’s death you remained unmotivated to return to study.  You eventually took up consistent work as a store person and then as a labourer, which work you held until about two weeks before the plea hearing, having been advised of the inevitability of a gaol sentence for this offending and wishing to spend more time with your family.  Recently you have again become motivated to return to your studies.

56You have also been continuously involved in the care of your mother, doing housework and shopping and taking her to medical appointments.

57Importantly, since being charged with these offences between 3 May 2023 and 6 May 2024 you have attended 20 sessions of a sex offender treatment program run by psychologist, Peter Hanley.

58In his report dated 14 May 2024 Mr Hanley said that following the death of your father you became socially withdrawn, unable to assume the role of man of the house in your father’s stead, instead spending most of your time in your room fantasising about ways to escape feelings of loss and failure.  It was in this context that you met and then described that you ‘fell in love’ with the complainant despite being fully aware of the inappropriateness due to her age.

59Mr Hanley said that as your connection with the complainant grew you ‘overlooked her age and maintained the interaction even though it had become inappropriate in its levels of intimacy and the gradual development of sexual communication.’  You told Mr Hanley, ‘the more I got into it the more I fell in love’, and described, for example, the two of you sleeping together on calls - by that I mean that you left your phones on and fell asleep and spoke to each other in the morning – and that you ‘felt comfortable in telling her anything.’  You told Mr Hanley you travelled to New Zealand because the complainant’s best friend had told you she was feeling depressed and you wanted to make her happy.

60Mr Hanley said you presented as an emotionally immature man with a people-pleasing temperament, unresolved grief relating to your father’s death and an under-developed sense of direction in life.

61Mr Hanley said your description to him of the offending included ‘significant distortions.’  He wrote:

‘Notwithstanding his acknowledgement of the inappropriate, illegal and harmful nature of their relationship, Mr Chaouk initially expressed feelings of love, emphasising the complainant’s initiative taking as aspects of their interactions that had appeared mutual and consensual.’

62Under the heading ‘Progress and Conclusion’ Mr Hanley wrote that you had made good progress on the program.  He wrote:

’It has been evident as his treatment has progressed that Mr Chaouk views the victim and his offending in more realistic terms, that is, he has expressed the belief that he exploited a vulnerable child.  That realism has allowed Mr Chaouk to reflect on the self-centred harmful nature of his offending.  Those realisations have been accompanied by noticeable distress from Mr Chaouk during our consultations.  He has reported ruminating about the harm he has caused to the victim and he has expressed feelings of regret, guilt and a desire for just punishment.’

63Mr Hanley also wrote:

’While Mr Chaouk presents as remorseful, his understanding of the psychological issues underpinning his offending remains surprisingly simplistic, which points to a relatively unsophisticated thought process and a very immature approach to relationships and personal responsibility.  Those issues appear to have contributed to his offending behaviour and remain a key target for the future intervention.’

64I regard the fact that you have undergone this treatment as significant, both in terms of any danger you might represent by way of similar future offending and in making an assessment of the offending you engaged in.  Without in any way seeking to excuse that offending, I am satisfied that despite the extent and nature of your sexual dealings with the complainant and the harm undoubtedly done to her as a result, this did not amount to deliberate predatory conduct on your part.

65As Mr Hanley said, you presented and continue to present as immature, simplistic, and to an extent despite your obvious devotion to your parents and family, somewhat self-centred, and I am satisfied that this, in the context of the aftermath of your father’s distressing and unexpected death, underly your offending.

66This is an important finding in light of the principles which surround sentencing for the offences to which you have pleaded guilty.  While the presumption of harm and protective aims of the legislation underly the mandatory minimum sentences attached to Charges 1 and 2 mean you must receive a term of immediate imprisonment – I have no discretion in that respect – I am satisfied there are significant mitigatory features in this case.

67It was very fairly conceded by Ms Breckweg for the CDPP that much of the legislation surrounding this offending is aimed at predatory adults deliberately and callously targeting vulnerable children living overseas in order to satisfy their sexual appetites, specifically the child sex tourist trade, and that your case does not fall into that category.

68Given your previous unblemished history, your pro-social and supportive family, the fact that you have undertaken voluntarily extensive sex offender treatment, which I accept has at times been distressing for you and resulted in greater awareness of the harm you did, together with the development of genuine remorse, I am satisfied you do not present as a danger of re-offending and I assess your prospects of rehabilitation as strong.  You also fall to be sentenced as a youthful offender where preservation and promotion of rehabilitation according to the principles laid down in Mills are significant.

69It is well established, and particularly in relation to youthful offenders, that rehabilitation of an offender ultimately results in the greater good to the community.  I am concerned that a term of imprisonment, which I accept you will find particularly difficult to bear given your age and history, which is of a particularly non-criminal type, and the innate personality that I have described, given those matters I am concerned to impose a sentence that does not result in you ending up with the sort of trauma and exposure that unfortunately can lead persons sentenced to a term of imprisonment to continue life in an anti-social way.  Had you not offended in this way, Mr Chaouk, had you not been so caught up in this fantasy and daydream which I accept it was, I do not expect a court would ever have seen you before it.

70I make the comment that it is concerning that the court does not have the opportunity to deal with you in a way that does not involve a custodial sentence.  However, it must be understood there is a presumption of harm in relation to under-age victims of sexual offending. 

71No victim impact statement was tendered in this case but I can certainly assume that in the aftermath of the fantasy relationship with you that the complainant engaged in there has been much bitter fallout.  First, I can certainly assume enormous stressors within her own family.  The experience of this court is that young complainants who think they have found a great love and engage in sexual activity well before they are emotionally ready can go on to develop great emotional suffering in the aftermath of the end of that relationship.  I do not wish to comment too graphically upon what that might involve for this complainant, from whom I have received, as I have said, no victim impact statement. 

72As I have said, it is the experience of these courts that underage complainants who have engaged in a consensual sexual relationship with an inappropriately older man can go on to suffer a great deal of emotional pain and trauma after that relationship has ended, and I assume that to be the case.

73Additionally, the tendency of underage complainants to immerse themselves in a relationship usually occurs at a time when other matters such as education are extremely important for them.  It can be seen that the complainant has behaved in precisely that way during the time that you were in New Zealand.  She wagged school for a week, basically, and no doubt had the relationship continued undetected this could have resulted in an enormous disruption to her education in a way that would have affected her for the rest of her life.  She was simply too young to make sensible decisions about the way she was leading her life and this is but one of the many reasons why the presumption of harm to underage complainants, no matter how willing they might be to have engaged in that relationship, has found its way into the law and into the purpose of this legislation.

74It is accepted that you pleaded guilty at the first available opportunity, and again Ms Breckweg conceded that you were entitled to a 25 per cent discount on that basis in relation to Charges 1 and 2.

75The way in which the legislation works and the way in which the authorities have directed that sentencing courts must regard their task in that way means that a number of factors personal to you may not be taken into account in determining the minimum maximum term.

76I do accept, however, that although you conducted a ‘no comment’ record of interview, you were co-operative with police to the extent that you provided them with your phone, passcode and confirmed your travel to New Zealand. 

77It was your counsel’s submission that your youth, good character and the absence of certain otherwise aggravating features such as an even greater age difference, a more significant power balance such as via a position of trust, payment for the sexual abuse of material that you were engaging in child sex tourism with multiple victims, were such that the discount for both pleading guilty and co-operation should be applied.  I do accept that submission. 

78Again, I regard the fact that the court has been able to be provided with a psychological report from a treating psychologist, who was seeing you specifically for the purpose of sex offender treatment, has been of enormous assistance to this court both in determining your state of mind at the time you engaged in this offending as well as your psychological state, together with your progress and the opinion as to the factors underlying your offending, cannot be overstated.  Ultimately, I have sentenced you in the way that I have.

79Pursuant to s6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of seven and a half years and ordered that you serve a minimum term of five and a half years.

80Is there anything else that I need to attend to?  I think there is one day, is there, of pre-sentence detention?

81MS CARLANDER-MUNRO:  It’s two days.

82HER HONOUR:  I declare that two days of this sentence have been served by way of pre-sentence detention.

83MR McLAUGHLIN:  Your Honour, in terms of the SORA paperwork ‑ ‑ ‑ 

84HER HONOUR:  Yes, we prepare that and get that to Mr Chaouk.  Thank you very much.  Is there anything else that I need to attend to?

85MR McLAUGHLIN:  Just in terms of custody management, just noting that it’s the first time in custody, but other than that nothing further.

86HER HONOUR:  Yes, I do note that it is his first time in custody and in fact it’s his first time before the court.  So I make that point at least to the prison officers here when he’s taken down.  Thank you very much.  Yes, we will stand down until 10.30.  Thank you.

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