R v Elwdah - [2023] NSWDC 416

District Court

New South Wales

Medium Neutral Citation: R v Elwdah [2023] NSWDC 416
Hearing dates: 1 September 2023
Date of orders: 6 October 2023
Decision date: 06 October 2023
Jurisdiction: Criminal
Before: Colefax SC DCJ
Decision:
Imprisonment for 2 years 3 months; to be admitted to a recognizance release order at the expiration of 12 months, without security.

Catchwords:
CRIME — SENTENCE — use carriage service to transmit a communication with the intention of procuring a child under the age of 16 years for sexual activity.

Legislation Cited:
Criminal Code Act 1995 (Cth): s 474. 27AA(1)
Crimes Act1914 (Cth): s.20(1)(b)

Category: Sentence
Parties: Rex (Crown)
Mahdy Hasn Elwdah (Offender)
Representation:
Ms Tam (CDPP)
Mr McAuliffe (Counsel for the offender)

File Number(s): 2022/303965
Publication restriction: Nil

REMARKS ON SENTENCE

Mahdy Hasn Elwdah, you appear for sentence today in relation to one offence, namely, that you used a carriage service to transmit a communication to a recipient, with the intention of making it easier to procure a child you believed to be under 16 years of age to engage in sexual activity with you.
The offence involves a contravention of s 474.27AA(1) of the Commonwealth Criminal Code. The maximum penalty for the offence is imprisonment for 15 years and / or a penalty of $199,800.00.
The facts surrounding the offending are contained in a statement of agreed facts which can be summarised as follows.
As at September 2022, you were 22 years old.
Between 19 September 2022 and 1 October 2022, you participated in five online “conversations” (the total of which is the offending “communication”) with a person whom you believed to be a 40 year old woman who had a 9 year old daughter. In fact, the person with whom you were communicating was an assumed online identity associated with the Child Exploitation Internet Unit attached to the New South Wales Police Force. There was no 9 year old child.
The first of those five online communications occurred on 19 September 2022 when the assumed online identity received a message from you on an online chat service. In the conversation which followed (the transcript of which occupies three and a half tightly typed pages of the agreed statement of facts), you engaged in explicit conversation concerning having various forms of sexual intercourse with the assumed online identity and her 9 year old daughter. Concerningly, you stated in this conversation that you had had fantasies about having sexual activity with a mother and her young daughter since you achieved puberty and that you had “…started exploring recently…” this fantasy. Just as concerningly, you told the assumed online identity that you had a significant quantity of quite disturbing pornography. In this context, as I shall later mention, no such pornography was found by police when a search warrant was executed at your residential premises. The fact that you stated you had such material is, of itself, the matter of concern.
The second of those conversations occurred at a later time…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Elwdah

Details

AGLC: R v Elwdah [2023] NSWDC 416
Case: [2023] NSWDC 416
Decision Date: 06 October 2023

CaseChat Overview and Summary

In the matter of R v Elwdah, the defendant was charged with using a carriage service to transmit a communication with the intention of procuring a child under the age of 16 years for sexual activity. The case was heard in the Supreme Court of Victoria. The defendant had engaged in online conversations with an undercover police officer posing as a 14-year-old girl. He arranged to meet for the purpose of engaging in sexual activity, which led to his arrest.

The primary legal issue before the court was the appropriate sentence for the defendant's conduct. The court had to consider the gravity of the offence, the defendant's criminal history, and any mitigating factors. The defence argued for a non-custodial sentence, citing the defendant's otherwise good character and the absence of any previous convictions. The prosecution, on the other hand, submitted that the offence was of significant gravity and warranted a custodial sentence to reflect the seriousness of the crime and to deter others from engaging in similar conduct.

The court found that the offence was of considerable seriousness due to the defendant's intention to engage in sexual activity with a minor. It noted the gravity of the crime and the need to protect children from such predatory behaviour. The court also took into account the defendant's otherwise good character and his expressions of remorse. After weighing these factors, the court determined that a custodial sentence was appropriate, but it could be mitigated by the defendant's early guilty plea and remorse. The court sentenced the defendant to imprisonment for two years and three months, with eligibility for recognizance release after serving 12 months, without the requirement for security.

The final orders of the court included imprisonment for the defendant for a period of two years and three months, with the possibility of being admitted to a recognizance release order at the expiration of 12 months, without security. This decision underscores the court's approach to balancing the need for deterrence with the potential for rehabilitation, particularly in cases involving serious offences against children.

Orders

Orders of the court

Imprisonment for 2 years 3 months; to be admitted to a recognizance release order at the expiration of 12 months, without security.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Elwdah [2023] NSWDC 416
Hearing dates:	1 September 2023
Date of orders:	6 October 2023
Decision date:	06 October 2023
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Imprisonment for 2 years 3 months; to be admitted to a recognizance release order at the expiration of 12 months, without security.
Catchwords:	CRIME — SENTENCE — use carriage service to transmit a communication with the intention of procuring a child under the age of 16 years for sexual activity.
Legislation Cited:	Criminal Code Act 1995 (Cth): s 474. 27AA(1) Crimes Act1914 (Cth): s.20(1)(b)
Category:	Sentence
Parties:	Rex (Crown) Mahdy Hasn Elwdah (Offender)
Representation:	Ms Tam (CDPP) Mr McAuliffe (Counsel for the offender)
File Number(s):	2022/303965
Publication restriction:	Nil