R v Ghulaim

[2021] NSWDC 310

District Court

New South Wales

Medium Neutral Citation:	R v Ghulaim [2021] NSWDC 310
Hearing dates:	9 December 2021; 30 April 2021
Decision date:	11 May 2021
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	For NSW/State offence: Imprisonment for 1 year 6 months with a non parole period of 9 months; for Commonwealth offence: Imprisonment for 1 year 6 months, to be suspended after 9 months.
Catchwords:	CRIME - SENTENCE - Accessing child pornography material using a carriage service - possessing child abuse material.
Legislation Cited:	Commonwealth Criminal Code: s474.19(1)(a)(i); Crimes Act 1900 (NSW) s91H(2).
Category:	Sentence
Parties:	Regina (Commonweath Crown) Awather Ghulaim (The offender)
Representation:	Mr B. Stevens (Crown Prosecutor) Ms Jowett (Counsel for the Offender)
File Number(s):	2019/00089947
Publication restriction:	Nil

1. Awather Ghulaim, you appear for sentence today in relation to two offences.

2. The first offence is accessing child pornography material using a carriage service. This offence involves a contravention of s474.19(1)(a)(i) of the Commonwealth Criminal Code. The maximum penalty for that offence is 15 years imprisonment.

3. The second offence is possessing child abuse material. This offence involves a contravention of s91H(2) of the Crimes Act 1900 (NSW). The maximum penalty for that offence is 10 years imprisonment. There is no standard non-parole period.

4. The facts surrounding your offending can be summarised as follows.

5. In November 2017 you were 19 years old. As at March 2019 you were 20 years old.

6. The significance of those dates and ages will shortly be revealed.

7. On 21 March 2019, you were living with your parents in the Sydney suburb of Liverpool.

8. On that date, and acting on information from the Australian Federal Police, NSW Police attended those premises with the intention of executing a search warrant. As you were not present, the warrant was not executed. Rather, arrangements were made for you to voluntarily attend the Liverpool Police Station – which you did on that day.

9. During the interview which followed, you were informed that you were being investigated in relation to unlawful activities involving child abuse material on the internet.

10. You subsequently provided the police with the three mobile phones that you owned: a Blackberry; a Huawei; and a Samsung. It was the Samsung phone which turned out to be of significance.

11. When a Cellebrite examination was made of that phone, the subsequent report showed that between 29 November 2017 and 12 March 2019 you used it to access 23 images and videos of child pornography material. This material was subsequently classified according to the Interpol baseline categorisation system. Seven images and twelve videos were found to be in Category 1, and four images were found to be in Category 2.

12. Unlike the previously utilised CETS regime, reference simply to the Interpol baseline category does not assist in determining the nature of the material. Given the manner in which the sentencing hearing proceeded, I have assumed that the nature of the accessed material was not inconsistent with the nature of the material in the possession offence.

13. It is the accessing of these 23 images and videos that constitutes the (Commonwealth) offence.

14. In this Cellebrite examination, the police also found that you were in possession of 256 images and videos that were child abuse material. 159 images and 67 videos were, in accordance with the Interpol Baseline category regime, categorised as Category 1; and 30 images were categorised as Category 2.

15. The following is an agreed description of these images and videos.

16. One image was of a child under the age of 12 months lying on her/his back with two adult females in the immediate vicinity. One of these females was holding the legs of the baby and the other adult female was exposing her naked vagina and anus near the baby’s face. In this image the baby was clothed.

17. The majority of the other images and videos are of children (predominantly female) engaged in sexual intercourse with adult males. Some of the videos reveal very rough and forceful interaction with the young victims. The sexual intercourse consists of both penile-vaginal and penile-anal intercourse.

18.  In one particular video, a young female child, no older than approximately 10 years of age, was being anally penetrated by an adult male penis. The anus of that child appeared to have been torn and it was bleeding.

19. Other images showed young children performing oral sex upon adult males with those males ejaculating semen onto the children’s bodies or into their mouths.

20. Other images and videos showed young female children self-performing digital penetration of their vaginas as well as penetration of their anuses with objects such as toothbrushes, hairbrushes and broom handles. The majority of the female children in these images appeared to be between 3 and 14 years of age.

21. Also in this degraded and degrading material were three young male children who were being apparently masturbated by an adult female. The age of the children is not revealed other than being described as “young”.

22. Unsurprisingly, but disturbingly, the facial expressions on the young female children engaging in the sexual intercourse with the adult males showed that they were experiencing a great deal of pain and torment and that they were performing these acts very much against their will. Again, unsurprisingly, but disturbingly, the images and videos made it clear that the young female children were extremely frightened, withdrawn and confused.

23. It is the possession by you of these 256 images and videos which constitutes the (State) offence.

24. It is necessary for the Court to make a finding of the objective seriousness of each offence for an offence of its kind.

25. Although the amount of material for each offence is not as great as in other cases, the nature of that material was particularly depraved. In these circumstances, my assessment of the objective circumstances of each offence, for an offence of its kind, is that it is very slightly below the middle of the range.

26. You did not give direct oral evidence in the sentence proceedings. Your subjective circumstances were advanced through an affidavit made by you (upon which you were not cross-examined); the reports of two psychologists, Ms North and Ms Swaffield; and character references.

27. It would be a relevant factor in determining your subjective circumstances if you had accessed and possessed the child abuse material for sexual gratification purposes. As I indicated in the course of submissions on 30 April 2021, by reference to the final sentence at paragraph 31 of the report of Ms North dated 20 December 2020 - not challenged in cross-examination - the Crown has not persuaded me, beyond reasonable doubt, that you have a sexual interest in children.

28. On the other hand, I note that when you were interviewed by police and by Ms North, you advanced the explanation that you had access to, and possessed, this material because you were (as a result of your own sexual abuse as a child) engaging in a kind of vigilante exercise to track down and report to the authorities this type of material. However, there is no evidence that you did indeed ever report any of this material to any authority; and there is no other explanation in this context as to why you continued to possess the material. I am, therefore, not satisfied, on the balance of probabilities, of your exculpatory explanation as to why you accessed and possessed this material.

29. Consequently, the assessment of your subjective circumstances is to be undertaken on the basis of access and possessing of the material simpliciter.

30. As I have already mentioned, you were 19 years of age when the accessing of child pornography offence commenced. It is, in fact, covered by the period 29 November 2017 to 12 March 2019; and you were 20 years of age at the time of the possess child abuse material offence.

31. Your childhood was clearly a dysfunctional one, attracting the reduced moral culpability which the High Court in Bugmy v The Queen has directed sentencing Judges to take into account.

32. In this context, you were born in Iraq in 1998. Your family belonged to a religious minority in that country and was subject to a great deal of persecution which only increased when the Iraqi war broke out in 2003.

33. Your family fled to Syria in 2004; however, your family’s persecution only continued in that country.

34. In, or about, 2005, and when you were about 7 years old and still in Syria, an adult male member of the family began to sexually abuse you. This occurred 3 to 4 times a week and continued for approximately 4 years.

35.  In addition to being sexually abused by that member of the family, you were apparently subject to physical non-sexual abuse from your father and considerable bullying at school.

36. By the time your family fled Syria for Australia in 2009, when you were 12 years old, you had been subjected to accumulating traumatic experiences.

37. You left school in Australia in Year 11. Although you had been an above average student in Syria, your grades declined in this country because you couldn’t focus; you were easily distracted; and you began experiencing symptoms consistent with anxiety and depression. I am satisfied, on the balance of probabilities, that that anxiety and depression was a consequence of the accumulated trauma to which I have referred.

38. After you left school when you were 16 years old, you started an apprenticeship as a glazier, but this was discontinued.

39. It was discontinued because of an illicit drug and substance abuse that you started when you were 14 years old. At that age, you began using cannabis and you still use cannabis, although in a decreasing amount. You used methylamphetamines from the age of 15 until late 2018.

40. You also abused ecstasy, cocaine, benzodiazepines and pain medications.

41. I am satisfied, on the balance of probabilities, that, at least from the age of 14 until the present time, you have suffered from post-traumatic stress disorder as a consequence of the accumulated traumas to which I have referred; and that your illicit drug use was a direct consequence of those traumas.

42. Furthermore, I am satisfied, on the balance of probabilities, that there is a direct causal link between the underlying and (until recently) untreated post-traumatic stress disorder, your substance abuse issues, and your offending, as that was explained in Ms North’s report.

43. Before these offences were committed, you committed two offences in 2018: having goods suspected of being stolen; and driving a motor vehicle with an illicit drug present in your blood. In relation to the first offence, you received a section 10 bond; in relation to the second offence, you received a modest fine.

44. In these circumstances, I am prepared to treat you as a person who has no relevant criminal background – although, for offences of this kind, that consideration is of reduced significance.

45. In 2018, you first revealed to an appropriate health professional that you had been sexually abused as a child; and since 2020, you have been undertaking more targeted psychological interventions.

46. It is difficult to form an assessment as to whether or not you are genuinely remorseful for your offending. In this context, I cannot overlook your persistent (but unproved) assertion that you accessed and retained this material in order to provide it to “the authorities”. These assertions were, in fact, being made by you even as recently as 9 December 2020 – and indeed were not effectively abandoned until 30 April 2021.

47. You have the onus of proving remorse on the balance of probabilities and I regret to say that that onus has not been discharged.

48. Remorse is an important factor in assessing an offender’s prospects of rehabilitation.

49. Another factor is that even though the testing conducted by Ms North did not indicate the presence in you of a sexual interest in children, other testing conducted by her indicated that you “… posed an above average risk for engaging in future behaviour related to possession of child pornography and other sexual recidivism”. Unfortunately, what seems to be a tension between those 2 test results was not explored with Ms North when she gave oral evidence; nor was there any such exploration as to what she meant by “… other sexual recidivism.”

50. Another factor is that you are currently in a stable relationship with a young lady of a similar age to you.

51. Even though I am not persuaded of genuine remorse, I am of the opinion that, if you continue to receive effective treatment for your post-traumatic stress disorder and the consequential illicit drug use, your prospects of rehabilitation are cautiously guarded.

52. The Court of Criminal Appeal has made it clear that the principal sentencing consideration for offences involving accessing child pornography and possessing child abuse material is general deterrence – that is, fixing a sentence that will make it clear to like-minded persons within the community that these types of offences are abhorrent, and that offenders will be met with condign punishment to reflect the community’s attitude to child pornography and child abuse material. That is because, although you did not directly abuse the children concerned, you created the demand for the material which other more wicked people made and provided to you and others.

53. Whilst the full application of the principal of general deterrence is, to a degree, mitigated by your underlying mental health issues it nevertheless remains the principal sentencing consideration.

54. In your case, moreover, specific deterrence – that is, fixing a sentence that will deter you – is fully engaged; not least because, as I have already said on a number of occasions today, there is no clear explanation for your offending beyond the fact that it is causally linked with your substance abuse issues and the underlying and untreated post-traumatic stress disorder. Why those particular conditions manifested themselves in these offences remains unclear. And I repeat Ms North considered that you “… posed an above average risk for engaging in future behaviour related to possession of child pornography and other sexual recidivism.”.

55. In relation to each offence, the relevant statutory threshold for a full-time custodial sentence has been crossed and no sentence for either offence other than an immediate term of full-time imprisonment is appropriate.

56. Although the history of this matter in this Court was an unsatisfactory one, the Crown has conceded that you ought to be treated as if you had pleaded guilty at the first available opportunity. Notwithstanding that the Court is not bound by that concession, I propose to act on it. Therefore, in light of the concession, I shall allow, in each case, a discount of 25 per cent for the utilitarian value of the plea.

57. In relation to Count 2, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years. Applying the discount of 25 per cent, I sentence you to a term of imprisonment of 1 year 6 months.

58. I make a finding of special circumstances to vary the ratio of the head sentence to the non-parole period. I make this finding because of your age; this is your first period of imprisonment; and your underlying mental health issues will make imprisonment more difficult for you.

59. Accordingly, I fix a non-parole period of 9 months to date from today, 11 May 2021, and which will expire on 10 February 2022.

60. I fix a balance of 9 months to date from 11 February 2022 and which will expire on 10 November 2022.

61. In relation to Count 1, except for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years. After applying the relevant discount, I sentence you to a term of imprisonment of 1 year 6 months to date from 11 August 2021.

62. Pursuant to s20(1)(b) of the Crimes Act 1914 (C’wealth), I order that the execution of that sentence be partially suspended after you serve a period of 9 months (i.e. on 10 May 2022) upon condition that you enter into a self-recognisance without security in the sum of $500.00 for a period of 9 months.

63. Conditions of that recognisance order are:

1. to be of good behaviour;

2.  to accept the supervision of New South Wales Corrective Services; and

3. to report to Community Corrections Campbelltown no later than 4:00pm on the day after you are released – in the first instance via telephone.

64. I order that the reports of Ms North and Ms Swaffield (at tabs 2 and 3 of Exhibit 1) go with the sentencing warrants.

65. By consent, I make a forfeiture order in accordance with the short minutes of order signed by me and dated today.

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Decision last updated: 12 July 2021