Director of Public Prosecutions v Houssein

[2025] VCC 458

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-24-01199

THE DIRECTOR OF PUBLIC PROSECUTIONS 

V

JEMAL HOUSSEIN

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JUDGE:	HER HONOUR JUDGE BRECKWEG
WHERE HELD:	Melbourne
DATE OF HEARING:	26 March 2025
DATE OF SENTENCE:	11 April 2025
CASE MAY BE CITED AS:	DPP v Houssein
MEDIUM NEUTRAL CITATION:	[2025] VCC 458

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - SENTENCING

Catchwords:              Two charges of sexual penetration of a child under 16; 2 female victims – repeated acts of oral penetration – public place – standard sentence – youthful offender – early plea of guilty – no criminal history – delay – rehabilitation limb – very good prospects of rehabilitation - general deterrence – denunciation- punishment.

Legislation Cited:      Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic).

Cases Cited:R v Verdins [2007] VSCA 102; Azzorpardi v The Queen [2001] HCA 25

Sentence:                  Convicted and sentenced to total effective sentence of 3 years imprisonment; non parole period of 18 months imprisonment; sex offender registration for life; 6AAA declaration - 6 years’ imprisonment with a non-parole period 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr B Hardisty	Solicitor for the Director of Public Prosecutions
For the Accused	Mr D Sala	Theo Magazis & Associates

HER HONOUR:

Introduction

1Jemal Houssein, you have pleaded guilty to two (2) charges of sexual penetration of a child under 16 years contrary to s 49B(1) of the Crimes Act 1958 (Vic).[1]

[1] As amended by the Crimes Amendment (Sexual Offences) Act 2016.

2Each offence carries a maximum penalty of 15 years imprisonment, with a standard sentence of 6 years pursuant to s 5A(1)(b) of the Sentencing Act 1991 (Vic).

Circumstances of the offending

3The agreed facts of your offending are set out in the Summary of Prosecution Opening for Plea (Exhibit A on the plea). In summary, in around July 2022, you sent a friend request via the social media application Snapchat to KL[2] who was a female child aged 14 years. KL accepted your request assuming that you must have been someone from her school. You introduced yourself to KL using the name Adrian Palama which matched your Snapchat account, and you told her you were aged 16 or 17. You asked KL what school grade she was in, and she told you she was in year 8. She also told you her date of birth and that she was 14 and you responded that ‘that was a perfect age’ and that you were only a couple of years older.

[2] A pseudonym.

4You continued to speak on-line with KL over the next few weeks, talking to her about various matters including life, relationships, family and pets. KL confided in you that she was not getting along with her teachers or peers and had been missing school as a result. You and KL exchanged photographs, although those you sent did not capture your face. You also communicated with KL using another Snapchat account in the name TXKIAS which you said belonged to a friend as you had been banned from snapchat several times. You later asked KL for her telephone number, and you were eventually calling KL almost every evening. You told KL that you could envision a relationship with her and that she was ‘wifey’ material.

5Three to four weeks after you started talking to KL, you asked her to perform oral sex on you. When KL said she would think about, you offered to pay her $100 and said, “surely you’ll do it”, it’s “easy money” and “it won’t take long”. You told KL that it was not abnormal to do it, everyone her age was doing it and that you had done it with people younger than her. Eventually, in early August 2022 you arranged to meet KL at a shopping centre. KL attended with a friend, but you called and said you could not attend as you had to work which caused KL to feel a sense of relief.

6You and KL arranged to meet at a shopping centre on 28 August 2022, for the purpose of her performing oral sex on you. KL had told her friend DH[3] that she had been conversing with you on Snapchat and that you had offered her money to perform oral sex on you, and she asked DH if she would go with her to meet you. KL said that when she met you, she was confused as you appeared older, taller and thinner than in the photographs you had sent her. DH also observed that you looked older than 17 which is the age you told KL you were. KL introduced DH to you, and you then asked in short if you and KL should just get on with it. You took KL by the hand and, with DH following, walked around the shopping centre, with you indicating that you were looking for a bathroom.

[3] A pseudonym.

7When you reached a toilet, DH asked if she should go in as well and you told her “yeah”. You followed both girls inside the toilet and locked the door. When KL expressed reservations, you told her not to “pussy out” and said “I came all this way, surely you’re just gunna give me something? you’re getting money out of it. It’s easy money” and “I thought you were gunna be different, clearly not”. KL then went to the end of the bathroom and began performing oral sex on you whilst you were standing and laying down. When KL was doing so, you rubbed and grabbed at her breasts on top of and under her clothing, and you tried to expose her breasts by pulling down her bra. You also touched her bottom under her pants and tried to pull her pants down. KL said this surprised her as she had told you some 2 weeks earlier that she did not want to be touched, and you had responded that you would respect that. When KL told you not to touch her there, you said “it’s part of the money that you’re gunna earn”. You had your hands mostly on KL’s head and became rougher, shoving her head down aggressively which she told you to stop doing.

8You then asked DH, who was sitting near the bathroom door, if she was sure she didn’t want to join in and said, “I know you want to”. You offered her $100 to participate. DH asked KL if it was good, and KL replied ‘yeah’ as she felt pressured to do so because you were looking at her. DH said no, but after being asked further, agreed because she felt she did not know how else to communicate that she did not want to. Then, both KL and DH were on either side of you and took turns performing oral sex on you, with you directing them “okay you…now you”. You touched both complainants notwithstanding they told you not to. You asked both KL and DH to swallow and offered an additional $50 if one of them did so. You kept asking whose mouth you could finish in and when neither KL nor DH agreed, you ejaculated in DH’s mouth which she swallowed. The entire incident took place over about 45 minutes.

9You then accompanied KL and DH to a bank in the shopping centre and on the way, you told KL that you were older than you had first said you were. You withdrew $200 from an ATM and gave KL and DH $100 each. You did not pay the extra $50 you had promised if a victim swallowed your ejaculate. You purchased a bottle of water and gave this to KL and DH. You told them you wanted to keep walking around the centre but KL and DH said they had to go. They caught the bus home, still feeling disorientated. On their departure, you told KL you would text her. The same day as the incident, DH told her best friend what had happened. The day after the incident, on 29 August 2022, KL told her friend Alex[4] what had happened.

[4] A pseudonym.

10By way of context, after the offending on 28 August you constantly messaged KL asking her if you could do it again. You told KL she was very good and you missed her mouth, and you missed her doing it. You also asked if DH could do it with you and KL again and KL gave you DH’s Snapchat account name after you asked for it. KL ultimately lied and told you that DH had a boyfriend, and KL began to distance herself from you until your accounts were no longer connected as friends. In around December 2022 you contacted KL one final time asking her if she could do it again and telling her she was relationship material. KL told you she had a boyfriend, yet you kept asking and reassured KL it would be your “little secret”.

11On 1 December 2023, KL disclosed the incident to police. Both KL and DH provided pre-recorded evidence in March 2024.

Record of Interview

12On 27 March 2024 you participated in an interview with police during which you stated:

·        You had no recollection of communicating with KL or calling KL on your mobile phone around 28 August 2022. You said you had Snapchat but only used it to talk to your friends and your girlfriend.

·        You had no recollection of the oral penetration of KL, and you were in a relationship during August 2022.

·        You said you honestly did not know who KL was and you had no memory of how KL’s mobile number under the name ‘K’ came to be a contact in your phone list from 16 August 2022.

·        You said you did not know who DH was and had no recollection of DH engaging in oral sex with you.

·        You said you could not recall your whereabouts on 28 August 2022 and did not think you had visited the shopping centre that day. When told there was an automatic number plate scan showing a vehicle registered to you was in the area at the time, you said it could have been your mother. Later you said it could have been you or your mother, but you had no recollection.

·        You said you had to report your bank card stolen which could have been in August 2022 but when shown bank records revealing 2 bank withdrawals at the shopping centre on 28 August 2022 from your account, you stated that you had no explanation for this, and you barely ever take cash out.

·        You said you had no idea about Snapchat account TXKIASC and when shown messages between this account and KL, you said you could not comment on something you did not recall.

·        You denied using the name Adrian Palama on social media and you do not know any person by that name.

·        You denied ever offering money for sexual favours, and told police “…I don’t think I’m the type of person who would need to offer anyone money…”

Victim impact statements

13Victim impact statements were prepared and tendered by KL (Exhibit E), her father (Exhibit D) and her mother who read her statement to the court (Exhibit B). A joint Victim Impact Statement was also prepared by the parents of DH (Exhibit F) and by DH herself (Exhibit C). I take the contents of these statements into account. Your conduct has caused considerable distress to the victims and their families and has led to immense upheaval in their lives. Even if there were no victim impact statements, it is well accepted that there is a presumption that children are harmed, which includes the possibility of long-term psychological harm, because of sexual offending against them.

14DH described how she was shocked and confused by the crime, she was constantly thinking about what had happened when she was alone, and she felt sick at the thought of what had happened. She said that afterwards she struggled with eating, missed school, slept a lot of the time and distanced herself from many of her friends. She lost friends because she lacked the energy to socialise and was unsure who she was. DH said she felt she could not tell her parents because she didn’t know what they would think of her, and she felt she had no one to talk to about it. She was scared that she would see you and you would talk to her so she would avoid the shopping centre.

15DH’s parents described the devastation they experienced following the offence against their 14-year-old daughter. They stated that they did not know about the offence until months after it occurred but had noticed DH had become withdrawn, cautious and scared which all made sense once they learned of the offending. The offence has placed a significant strain on the family unit and much emotional effort was, and continues to be, needed to support DH during her ongoing trauma. DH’s parents spoke of how she has been affected in terms of her school performance and her changed friendships, and she no longer has the same trust in adults and no longer participates in activities she once loved.

16KL described feeling constant isolation and anxiety after the offending. Her mental health declined, and she lost her best friend, KL, due to the offending. She no longer feels comfortable at school and struggles to make new friendships. She hopes that with time she can accept and understand what happened to her.

17The mother of KL, read her statement to the court. She spoke of how she has lost the version of her daughter she knew. KL has been in therapy for over 12 months, has been hospitalised and on 6 different types of medication. Her daughter was an easy target because she was vulnerable and felt invisible at home with an unwell older sister and a younger brother with autism. She was manipulated and exploited, and others have placed blame on her which has isolated her socially and cemented her belief that she is a bad person. She said she had to take leave from work because KL was a high risk of harming herself.

18Her father described KL as a happy, outgoing and caring person, who loved spending time with her family prior to the offending. Since the offending he described her as someone who has become distant, angry, suicidal, has low self-esteem and a dislike for men which has impacted on his relationship with her. The offending has had a huge impact on his family, and he knows things will never be the same.

Personal circumstances

19You are 21 now and were 19 at the time of the offending. At 21, you are still a relatively youthful offender, and your continued rehabilitation must carry weight in the sentencing discretion.

20You were born in Victoria and raised in the Delahay area. You have an older sister and a younger brother. You completed Year 12 and took up employment at a fast-food restaurant. Your father died in November 2021 when you were just 19. Following his death, you had to take on extra employment to be able to maintain mortgage repayments on the family home plus you had to handle gambling debts your father had incurred unbeknownst to you. You then tried to join Victoria Police but had difficulty with one of the entrance exams. In March 2023 you worked for 12 months in another position, but your employment was terminated once you were charged. You are now employed full-time as a forklift driver and delivery man. Your employer is aware of the charges against you and is supportive. You have had no difficulties with drugs or alcohol in your life. In November 2023, after the offending, you became engaged to be married and reside with your fiancé and her parents who are aware of the charges and are all supportive of you. You still manage your mother’s finances and contribute financially to your family.

21You have no prior convictions and no subsequent or outstanding matters. I have had regard to the content of ten (10) character references from your family, friends and work colleagues tendered on your behalf (Exhibit 2) and I heard evidence from the authors of three (3) of those reports.  In summary, the references all speak unanimously that you are a hardworking, responsible and compassionate young man. They all state you have confided in them about the offending, you have expressed deep regrets and remorse for your actions, and they all consider your offending as completely out of character. They also speak of the hardship you have endured by the loss of your father and grandfather, and how you have had to assume the role of providing financial support to your mother and younger brother.

22I have had regard to the contents of a psychological report from Mr Cummins (Exhibit 1). Mr Cummins opined that at the time of the offending you were suffering from a persistent Complex Bereavement Disorder arising from the deaths of your father and grandfather. Mr Cummins noted that this disorder is a trauma and stress related disorder, that you are still suffering its effects, and you would benefit from mental health treatment to address residual grief symptoms. Additionally, Mr Cummins opined that you are presently experiencing symptoms of depression and stress reactive to your legal situation. Mr Cummins assessed, and I accept, that your risk of sexual re-offending is low.

23Whilst the principles espoused in limbs 1 to 5 of Verdins do not have application in your case, I accept the opinion of Dr Cummins that given you are only 21 and are mildly psychosocially immature, imprisonment would be more onerous for you than a prisoner without these attributes because you may inadvertently draw negative attention to yourself which would place you at risk.

Sentencing considerations

24You pleaded guilty to the charge at the first available opportunity. Your plea warrants a clear reduction in the sentence to be imposed to reflect its utilitarian value in saving the community the time and expense of a trial and witnesses, especially the victims, from having to give evidence, and to reflect its demonstration of acceptance of responsibility, and willingness to facilitate the course of justice.

25Your plea itself also demonstrates a degree of remorse. In terms of remorse in addition to your plea, you denied your offending when interviewed and after the offending you contacted KL and attempted to engage the victims in further sexual activity for monetary reward. You told Mr Cummins that at the time of the offending you believed the victims were not underage and you said you did not think there was anything seriously wrong with what you had done saying “Well, I thought the first girl was up for it and I offered to pay her some money and then I thought well, the second girl was up for it so I offered to pay her money…”  You said you enjoyed what they did to you, and you did not think you were abusing or coercing the victims. You were also minimising or justifying your offending as recently as February 2025 when assessed by Mr Cummins who noted that you displayed little understanding of how paying the victims money for sexual activity was relevant.

26Notwithstanding these matters, Mr Cummins said he was satisfied that you are now remorseful and regret your offending, but he did acknowledge that it had taken some time for you to accept the seriousness of your offending and how the victims may have been negatively impacted by it. Mr Cummins said that you indicated that you felt shocked, worried and depressed about your legal situation, including because you would most probably receive a jail sentence. In my view the report of Mr Cummins does not reflect the demonstration of much remorse outside that evident from the fact of the plea itself. I do however accept, based on the contents of character references and Mr Cummins finding, that you have demonstrated at least some small degree of additional remorse outside your plea of guilty. 

27Mr Sala, who appeared on your behalf, submitted that delay, which was in no way attributable to you, is a matter to be given significant weight in sentencing you. I accept that delay is a matter of some relevance to the exercise of the sentencing discretion in your case. First, the offending occurred in August 2022 but was not reported to police until over 12 months later in December 2023. Both KL and DH gave their evidence in March 2024. You were interviewed, and charges were laid, on 27 March 2024. Whilst this is the passage of events as they occurred, it is almost 19 months after the offending. This delay, it was submitted, is especially relevant in circumstances where you were 19 at the time of the commission of the offence and the delay made you now ineligible for consideration for any youth justice order. I accept that submission.

28Secondly, the delay is relevant in that since the offending, you have not been involved in any criminal activity, you have become engaged and matured and have been doing very well in your employment. Accordingly, the ‘rehabilitation limb’ of the delay principle is particularly relevant in your case.

29You are now 21. At 21 you are still a relatively youthful offender and in accordance with the principles espoused in Azzopardi, promotion of your rehabilitation must be afforded weight in the sentencing exercise.

30As to your prospects of rehabilitation, I am of the view that these are very good given your age, lack of prior convictions and subsequent or pending matters, your solid family and pro-social supports, your acceptance of responsibility for your actions, the fact that you have no deviant sexual interest in underage children and have now developed some insight into the harm your offending caused to the victims and you are a low risk of reoffending.

Offence gravity of the offending

31Sexual penetration of a child under 16 is clearly a very serious offence as is made clear with the maximum penalty of 15 years imprisonment. It is an offence that may be committed in many different circumstances. In your case, your offending involved simultaneous offending against two (2) separate female children. Both were aged only 14. You were aware that KL was only 14 and there is nothing to suggest, given your plea and the surrounding circumstances of the offending, that you were unaware DH was also under 16.  As your counsel accepted, your offending was serious, the victims were vulnerable and principles of general deterrence, denunciation and punishment play a significant role in sentencing.

32You were 19 years of age at the time of the offending – some 5 years older than the victims. Whilst numerically this is not as large an age gap as is often seen in these cases, you were not in a relationship with either victim (indeed one was effectively a stranger to you) and the age gap must also be viewed in terms of what is a not insignificant developmental difference in your level of confidence and sexual experience compared to that of the victims who were only 14 and were still in high school.

33It was you who initiated contact with KL. You did not know her previously. When you made contact, you lied to her by telling her your name was ‘Adrian Palama’ and that you were aged 16 or 17. You also engaged in further subterfuge aimed to conceal your identity when you sent photographs of yourself to KL that did not reveal your face. At the outset of your communications with KL you fostered a friendly relationship with her, asking about her life and interests, and as your conversations progressed, she confided in you about personal matters, and you even told her you thought she was someone who you could have a relationship with. In my view, the initial dialogue makes it clear that you were seeking to build KL’s trust and to make her feel comfortable with you. I am aware however, that I am not sentencing you for the offence of grooming.

34It was put by your counsel that yours was largely opportunistic offending. I am mindful however of the fact that it was you who contacted KL. You told her of your desire to meet her and then arranged the meeting. Indeed, you also arranged an earlier meeting which you were unable to attend. You were persistent in your efforts. You offered KL money as an inducement for her to perform oral sex on you and when DH also came to be present, you took the opportunity to offer her money effectively to coax her to perform oral sex on you simultaneously with KL. When KL expressed reluctance to participate both before and at the meeting, you told her that what you wanted her to do was normal and everyone her age “was doing it”, and you chastised her for contemplating not going ahead with the ‘agreement’ once you met up.

35You directed the actions of the victims, telling them to take turns fellating you and directing when it was the turn of each victim. In this way, each victim was exposed to the assault of the other. During the sexual activity, you did not wear a condom, you continually touched the girl’s bodies when they told you not to and you ejaculated in the mouth of DH when you did not have consent to do so. KL also testified that you forced her head down onto your penis in an aggressive manner. The offending involved repeated acts of oral penetration. The offending all occurred in a public toilet which is a further indicator of your treatment of the victims as mere sexual objects. I have no doubt your offending was to achieve sexual gratification.

36I accept that the age gap between you and the victims was not nearly as large as is often seen as you were also a teenager, but as stated above, I still consider it has some relevance notwithstanding I accept that you are not a paedophile or hebephile with a particular sexual interest in underage children.  Your offending did not involve violence, threats of violence or a breach of trust whereby you were a family member, employer or teacher as examples.

37General deterrence is a paramount sentencing principle in offending of the type you committed. Where general deterrence is primary, personal mitigatory factors such as prior good character, age, prospects of rehabilitation etc. must therefore be given less weight than might otherwise be given.[5] As noted above however, the weight to be given to factors such as general deterrence and punishment in your case will nevertheless be tempered by the need to promote your rehabilitation given your relative youth.

[5] Heathcote (a pseudonym) v The Queen [2014] VSCA 35 [at 35]; DPP (Cth) v Thomas [2016] VSCA 237 at [193]; Gajjar v R (2008) 192 A Crim R 76 at [27]-[28].

38I must also have regard to the need to impose a sentence that represents just punishment and denunciation of your offending.

39Specific deterrence and protection of the community are also relevant sentencing factors but the weight these are afforded in sentencing you will be considerably moderated given the same matters articulated above in the assessment of your prospects of rehabilitation.

40Finally, in addition to those matters set out under s 5(2) of the Sentencing Act 1991 (‘Sentencing Act’), I must also take the standard sentence for the offence of sexual penetration of a child under 16, which is 6 years’ imprisonment, into account. The standard sentence for an offence is a sentence that, by reference only to the objective factors affecting the relative seriousness of that offence, is in the middle range of seriousness. The standard sentence is to be treated as a legislative guidepost having the same function as the maximum penalty. The standard sentencing regime does not interfere with the instinctive synthesis approach the court must carry out, which involves distilling all relevant factors to arrive at the appropriate sentence. The standard sentence must not be treated as the starting point from which to add or subtract time.[6]

[6] DPP v Lindemann [2024] VSCA 220, [117].

41Accordingly, I have taken the standard sentence for the offences into account as just one of the many factors to consider in my instinctive synthesis of all the relevant features of your case. 

42Pursuant to s.11A of the Sentencing Act 1991, the non-parole period imposed for a standard sentence offence must be at least 60% of the total effective sentence unless I consider it is in the interests of justice to impose a lower non-parole period.

Submissions on sentence

43In your case, the prosecution submitted that your offending was a “moderate example of severity for such an offence” and accordingly a sentence should be imposed which requires the imposition of a non-parole period. It was further submitted that there was no basis to justify the imposition of a non-parole period lower than the prescribed percentage of 60%.

44Your counsel submitted that in all the circumstances of your case a Community Correction Order is within range. Alternately it was argued that a sentence involving the imposition of a sentence of imprisonment not exceeding 12 months, combined with a requirement to complete a community correction order on release, was appropriate. Mr Sala submitted that if I did impose an overall term of imprisonment with a non-parole period, it would be in the interests of justice to impose a non-parole period lower than 60% of the head sentence because of your very good prospects of rehabilitation and the need to promote your continued rehabilitation.

45I have balanced the serious nature of your offending, which involved two (2) victims at the same time who were only 14 years, and the strong need for general deterrence with your very good prospects of rehabilitation, your age, lack of prior convictions, and the important requirement to promote your rehabilitation. However, in my view, in all the circumstances, neither a Community Correction Order alone nor a combination sentence can sufficiently meet the primacy to be given to general deterrence or reflect the objective seriousness of your offending.

46However, the sentence of imprisonment I will be imposing on each charge will be lower than the standard sentence. In concluding that it is appropriate to impose sentences below the standard sentence, I have synthesised what I consider to be the relevant factors in assessing sentence including my assessment of the objective gravity of your offending, with all the matters relied on in mitigation of penalty, which include your age, lack of priors, the delay in resolution of the matter and the consequences that has had for you, the increased burden of imprisonment and your very good prospects of rehabilitation.

47In terms of the non-parole period, I consider it in the interests of justice that I impose a period below 60% because of your youth, very good prospects of rehabilitation and, importantly, the need to promote your rehabilitation in the interests of the community.

Totality and cumulation/concurrency

48I consider that there should be a degree of cumulation between the sentences imposed on the charges to reflect the separate harm caused to each of the two distinct victims. I do so mindful of the principles of totality and proportionality.

Comparative sentences

49Your counsel referred me to four (4) cases as examples of where non-custodial and combination sentences were imposed for charges for the kind of offending you are being sentenced for. I have had regard to those sentences but do not find them of assistance in the present sentencing exercise. Not only have there been cases where sentences involving non-custodial and combination sentences have not been imposed for the offences you are being sentenced for, but the cases I was referred to feature very different factual circumstances and very different and significant mitigating factors which are not present in your case. 

Sentence

50Please stand.

51On charge 1, you are convicted and sentenced to 2 years imprisonment. This is the base sentence.

52On charge 2, you are convicted and sentenced to 2 years imprisonment. I direct 12 months of the sentence be served cumulatively on the sentence imposed on charge 1.

53That makes a total effective sentence of 3 years imprisonment.

54I direct that you serve a minimum non-parole period of 18 months before being eligible for release on parole. 

55You have been on bail since your arrest and there are no days to be declared as pre-sentence detention.

56Both charges are Class 1 offences listed in Schedule 1 of the Sex Offenders Registration Act 2004 (Vic) which means you are required to comply with reporting obligations for life.[7]

[7] Sex Offenders Registration Act 2004, s 34(1)(c)(i).

57Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), but for your plea of guilty, I would have imposed a total effective head sentence of 6 years imprisonment with a non-parole period of 3 years.