R v Hakem

[2024] NSWDC 473

District Court

New South Wales

Medium Neutral Citation:	R v Hakem [2024] NSWDC 473
Hearing dates:	23 September 2024
Decision date:	23 September 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment of 7 years with a non parole period of 5 years 3 months
Catchwords:	CRIME - SENTENCE - sexual intercourse with a child under 10 years of age; intentionally incite a child to sexually touch.
Legislation Cited:	Crimes Act 1900 (NSW), s66A(1)
Category:	Sentence
Parties:	Rex (Crown) Junaid Sheikh Hakem (Offender)
Representation:	Ms J. Anderson (ODPP Parramatta) Ms Gallagher - (Counsel for offender)
File Number(s):	2023/00069164
Publication restriction:	To the extent necessary, confirm Statutory non publication order made of the name of the victim and any other information which might, directly or indirectly, identify her.

JUDGMENT 

1. Junaid Sheikh Hakem, you appear for sentence today in relation to two principal offences.  Each of those offences is an offence of sexual intercourse with a child under 10 years of age. 

2. Each of those offences (which are respectively sequences 2 and 4) involve contraventions of s 66A(1) of the Crimes Act 1900 (NSW). The maximum penalty for each offence is imprisonment for life; and there is a standard non-parole period of imprisonment for 15 years.

3. In relation to each principal offence, you have asked me to take into account one matter on a Form 1 which I have certified.  The matter on the Form 1 (sequence 1) referable to sequence 2, is intentionally inciting a child to sexually touch you.  The matter on the Form 1 (sequence 3) referable to sequence 4, is intentionally sexually touch a child. 

4. The facts surrounding the two principal offences and the two matters on the two Form 1s are contained in an agreed statement of facts and may be summarised as follows.

5. Your offending took place between June 2019 and February 2023. 

6. In those years, you were variously aged between 38 and 42 years and the victim of your offending, who was the daughter of family friends, was aged between 4 and 7 years. 

7. The first offending occurred somewhere between 3 June 2019 and 31 October 2020, when the victim was aged either 4 or 5 years.  She was, at some point, with you in your bedroom in the premises at which you lived with your wife and your own children.

8. Whilst you were in that bedroom, alone with that child, you removed your penis from your pants and coerced the child into holding your penis.  It does not seem that this incident went on for long. It is that incident which is sequence 1, which is to be taken into account with sequence 2.  By having regard to the nature of that matter, it will result in a slight but nevertheless meaningful sentence for sequence 2.

9. The second incident occurred in the period September 2020 to May 2021.  In circumstances not more clearly revealed, the victim was alone with you in your motor vehicle, which was in the basement carpark of the home unit block in which you lived with your wife and children.  Whilst you and she were alone in that motor vehicle, you performed cunnilingus on the 5 year old child.  This incident again, does not appear to have gone on for too long.  Although that said, any length of time was disgraceful.

10. It is that act of cunnilingus which is sequence 2. 

11. The third incident occurred on 26 December 2022.  You and your family, and the victim and her family, were staying at mutual friends' premises in Castle Hill.  During the night, the victim expressed a desire for a drink of water and, as you were taking her to a place to get the water, you kissed her on her lips and cheeks.  She was seven years old.  It is that intentional sexual touching of that child which is the matter on the Form 1, sequence 3, which is to be taken into account with the principal offence, sequence 4, to which I shall now come.

12. On 27 February 2023, the victim (who was then aged 7) was attending school and, at least on that date, she was being looked after by you and your wife at the premises you shared with your wife in Sydney. 

13. In circumstances described in paras 14 to 20 of the agreed statement of facts, you effectively isolated the child, performed cunnilingus on her, kissed and licked her face and took photographs. 

14. Fortunately, following this incident, the victim revealed to her mother what had been occurring between you and that victim - not just on the 27th of February but on the other occasions I have referred to - and the police were swiftly involved.

15. You were arrested on 1 March 2023.  You were not granted bail and you have been in custody continuously since the date of your arrest, solely referable to these two principal offences and the two Form 1 matters. 

16. It is necessary for the Court to make a finding of the objective seriousness of each of the principal offences for an offence of their kind.  In each case, I am satisfied that the objective seriousness is slightly below the midrange.

17. Each offence is significantly additionally aggravated by the breach of trust that was involved. 

18. I have already said that the first Form 1 matter will result in a slight but meaningful increase for the relevant principal offence to which it refers.  Similarly, the second Form 1 matter will result in a slight but meaningful increase in the sentence for the second principal offence.

19. Before turning to the subjective material you rely on, I have not overlooked the powerful victim impact statement that was read in court today from the victim’s mother.

20. It was read in open court because I wanted you to hear from that child’s mother of what you did. You had not had the opportunity of reading the document before today.  That document graphically sets out the damage you did to that child and her family.  There is, therefore, not just one victim. 

21. The victim impact statement graphically underlines the statement made by the President of the Royal Commission into Institutional Abuse of Children who, at the first sittings of the Royal Commission, said words to the effect of:

“Incidents which in the past might have been regarded as even low level sexual abuse of children, can have graphic, serious lifelong consequences”

(not that the two principal offences would have been described in the past as "low level"). 

23. The statement of this victim’s mother is an example of what his Honour was referring to.

24. That said, there is nothing to suggest that the profound consequences to this child were more severe than what would ordinarily be expected from a crime of this kind.  Therefore the impact on the child, as graphically described by her mother, is not an additional aggravating factor. 

25. You did not give sworn evidence in the sentence hearing today.  Rather, your subjective circumstances have been placed before the Court through a number of documents.  First, the sentencing assessment report.  Secondly, a psychological statistical profiling document.  Thirdly, the report of Dr Nielssen, a psychiatrist, dated 1 August 2024.  And lastly, through a collection of references from your wife and your brother.

26. You have also written two letters, one to the Court and one to the victim and her family, although there is no evidence that the latter document has been supplied to them (but that is neither here nor there, for present purposes). 

27. In making an assessment of your subjective circumstances, I can only make a finding adverse to your interests if I am satisfied of that finding beyond reasonable doubt.  Any finding in your favour to mitigate the sentence, must be established by you on the balance of probabilities.

28. I have already mentioned your age at the time of your offending. 

29. You were born into a wealthy family in Pakistan.  You had a privileged upbringing.  You are well-educated. 

30. There may or may not have been problems in the marriage of your parents, but those problems are not much a moment in this sentencing exercise.

31. You graduated from university and have pursued a significant career in IT. 

32. One matter that has received but little attention in the expert’s report is the fact that you yourself were sexually assaulted at age 11.  What impact that has had on your life has received very little comment from the expert; but I have noted it.  You certainly were not treated for any consequences as a result of it, although the sexual abuse was well-known to your family - your mother knew all about it. But I am prepared to accept that in Pakistan, as you told Dr Nielssen, mental health was and is treated differently to this country. 

33. You married in Pakistan, before you and your wife came to Australia in about 2015, I think.  You have two children.  One is now 8, the other 11. 

34. The marriage, you told Dr Nielssen, was an arranged marriage and it is an unhappy one.  You told Dr Nielssen you remained in the marriage only for the children.

35. Because of the conviction which will follow the sentencing today, your future employment prospects will be difficult. 

36. You have no prior offences of any kind.  Ordinarily, an offender who has no prior offences, can rely on that for a meaningful reduction in the sentence.  That consideration is of much less relevance where offending against children is concerned, because the primary sentencing consideration is general deterrence. However, the fact that you have no prior offences, is still a relevant consideration - just of less weight. 

37. Another important sentencing consideration is specific deterrence.  General deterrence is concerned with fixing a penalty that will deter others from doing what you have done.  Specific deterrence is concerned with fixing a penalty that will deter you. 

38. I have noted that in the interview for the purposes of the preparation of the sentencing assessment report, knowing that the document would be placed before a judge of this Court, you sought to deflect blame from your criminal misconduct.

39. You also have limited insight into your criminal conduct.  You denied a sexual attraction to children when, clearly, the facts of this case indicate that, at least in relation to this child, you had a sexual interest.

40. For the avoidance of doubt, I am not persuaded on the balance of probabilities that you are genuinely remorseful for your misconduct, in part, because you have limited and impaired insight as to why you committed these offences. 

41. The expert who was engaged to examine you has not addressed, in any meaningful way, the causes of your offending against this child. 

42. The only rational inference in the circumstances is that you do have a sexual interest in children generally. 

43. Your prospects of rehabilitation are, at best, guarded. 

44. No sentence other than a sentence of imprisonment is appropriate for either offence. 

45. You entered pleas of guilty at the earliest opportunity.  I intend imposing an aggregate sentence.  The discounts of 25 per cent flowing from those pleas will be applied to the indicative sentences underpinning the ultimate aggregate sentence.

46. The aggregate sentence will be backdated to the date of your arrest.

47. In relation to sequences 2 and 4 (and taking into account the matter on the relevant Form 1), except for your plea of guilty, the indicative sentence would have been imprisonment for 7 years. After the discount, the indicative sentence in each case is 5 years, 3 months.  The indicative non-parole period is 3 years 11 months. 

48. By having regard to totality, I impose an aggregate sentence of 7 years imprisonment.

49. I decline to make a finding of special circumstances.  There is no evidence that a longer period on parole would benefit your prospects of rehabilitation.  In declining to make a finding of special circumstances, I  acknowledge that you have not previously spent any time in custody. However, I am not persuaded, on the balance of probabilities, that your psychological conditions, as described by Dr Nielssen, would make prison more onerous for you than for many other offenders.

50. I fix a non-parole period of 5 years and 3 months, to date from 1 March 2023 and which will expire on 31 May 2028. 

51. I fix a balance of 1 year, 9 months, to date from 1 June 2028 and which will expire on 28 February 2030. 

52. You may now go with the officers, thank you. 

Decision last updated: 11 October 2024