R v Kamoun

[2023] NSWDC 110

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Kamoun [2023] NSWDC 110

Hearing dates:

24 April 2023

Date of orders:

24 April 2023

Decision date:

24 April 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 33

Catchwords:

CRIME – appeal and review – severity appeal from Local Court - sexual offences involving children

Legislation Cited:

Crimes Act 1900 (NSW) ss 66DB, 66DD

Crimes (Sentencing Procedure Act) 1999 (NSW) ss 3A, 5

Cases Cited:

Park v The Queen (2021) 395 ALR 193; [2021] HCA 37

Texts Cited:

Nil

Category:

Principal judgment

Parties:

Office of the Director of Public Prosecutions (ODPP)
K Kamoun (offender)

Representation:

Counsel:
Mr R Driels for the offender
Ms D Mansour (solicitor advocate) for the ODPP

Solicitors:
Abbas & Co Lawyers for the offender
ODPP

File Number(s):

2021/00047478

Publication restriction:

Non-publication of the victim’s name in accordance with s 578A Crimes Act 1900 (NSW)

 Decision under appeal 

Court or tribunal:

Local Court of NSW

Jurisdiction:

Criminal

Date of Decision:

22 December 2022

Before:

Magistrate G Walsh

File Number(s):

2021/00047478

EX TEMPORE REASONS FOR JUDGMENT

1. On 22 December 2022, the Bankstown Local Court sentenced Khadir Kamoun to a term of imprisonment for two years for the offence (seq 4) that, contrary to s 66DB(b) of the Crimes Act 1900 (NSW), on 18 February 2021, between 7:30pm and 8:00pm at Bankstown, the offender intentionally incited a child aged between 10 and 16 years of age to sexually touch a person. The maximum penalty for that offence, when tried in this Court, is 10 years but when tried summarily, as it was here, was 2 years and/or 100 penalty units.

2. This sentence was imposed after a plea of guilty on 24 October 2022, apparently the date of the hearing, yielding a modest 5% discount.

3. When sentencing the offender for the sequence 4 offence, the learned Magistrate was asked to take into account the offender’s acknowledgement of guilt to the additional offence on a Form 1 that in the same time range, date and place, and contrary to s 66DD(a) of the Crimes Act 1900 (NSW) the offender intentionally carried out a sexual act with or towards a child aged between 10 and 16 years, by masturbating in front of the child.

4. There is a discrepancy in the formal recording of the sentence. The offender’s record indicates that the sentence was to commence on 22 December 2022 and conclude on 21 December 2024. However, the Crown accepts that the learned Magistrate’s sentencing remarks indicated that the commencement date should be backdated to 18 February 2021 and thereby expire on 17 February 2023, a date which, of course, has come and gone. As a matter of fact, she has been in continuous custody since 21 April 2021.

Circumstances of offending

5. The parties placed before the Local Court a statement of agreed facts.

6. The victim is a young male who was 14 years 9 months old at the time of the offence. The offender was born on 21 July 1989 (31 years old at the time of the offence). The offender identifies as female and is referred to below as she/her. The offender and victim were not previously known to each other.

7. On or about 7:15pm on 18 February 2021, the victim was at Bankstown Centro Shopping Centre with his friend and young person NM and members of NM's family. The victim indicated to NM that he needed to use the toilet. The victim approached the toilets near the Boost Juice stand. NM and her family waited for the victim by the Boost Juice stand for approximately 10 minutes before they moved to the ground floor food court of the shopping centre.

8. The victim was wearing a grey t-shirt. As the victim was walking through the centre, he observed the offender. The offender was dressed in a red coloured t-shirt and white coloured short pants. She was in possession of a shoulder bag strapped around her shoulder.

9. The offender entered the male designated toilet before the victim. The toilet had two cubicles against one wall. The mirror and wash basins were on the opposite wall.

10. The victim saw the offender vacate one of the toilet cubicles. The victim approached the empty cubicle and saw that the offender had left her shoulder bag in the cubicle and did not enter. The offender went back into the cubicle and picked up her bag. The offender said, "It's okay go, go, go". The victim entered the cubicle, closed and locked the door.

11. The victim made himself decent and exited the cubicle. The victim moved to the wash basin to wash his hands. Out of the periphery of his vision, the victim noticed the reflection of the cubicle behind him. He could see the cubicle door was wide open, and the offender standing in the cubicle side-on to the victim. The offender was looking directly at the victim. The victim saw the offender's pants partially down and her penis was exposed. The victim saw the offender masturbating her penis with one of her hands . The offender told the victim "shh" and come towards her. The offender made a waving gesture with her other hand to beckon the victim over. The victim ignored the offender's request and dried his hands under the automated hand dryer.

12. When the Victim ignored the offender, the offender exited the cubicle and moved towards the victim. The offender was standing close to the victim. While the offender continued to masturbate her exposed penis with one hand, she reached out with the other hand and grabbed the victim's right hand. The offender started moving the victim's right hand towards her. Straight away, the victim pulled his hand away from the offender.

13. The victim ran from the toilet. The offender walked at pace out of the toilet. The victim was trying to look for NM and her family members. The victim noticed the offender following him and he ran through the mall faster. The victim used his phone to call a member of NM's family. The family member heard the victim crying on the phone. NM and her family found the victim in the food court area. He appeared upset, red eyed and crying. NM asked why the victim was crying and the victim made disclosures about what occurred in the toilet. He gave a description of what the offender was wearing.

Consideration of the objective seriousness of the offending

14. The offender’s Counsel characterised the offending as a one-off incident of exhibitionism, “with a bit more”. That to my mind substantially understates the seriousness of the offending.

15. True it was that the incitement was the physical act of grabbing the victim’s hand. As the offender’s Counsel argued the episode happened quickly. The offender did not know the victim. These are signs of a level of opportunism rather than premeditation. But not completely. The nature of what occurred was such as to justify the learned Magistrate’s epithet that the offender was “hunting prey”. As the learned Magistrate correctly pointed out, it was an obvious place where children (and others) might go. There was no evidence of her using the bathroom for any innocent purpose: there was no evidence to indicate that she was in the cubicle to urinate or defecate. She had seen the victim in the toilet room before she commenced to commit the sexual act that led to the committing of the additional offence. The circumstance that the offence creates an age range for the child victim is already factored in as an element of the offence does not preclude consideration of the actual age of the victim. In this case the victim was 14 (and approaching 15) which places him towards the upper end of that age range, at or about a time when the victim was reaching puberty and likely to be coming to deal with issues regarding his sexuality. Nor is consideration of the actual age differential between offender (who was aged 31) and victim precluded. That was very substantial. It also occurred in a public place even if the offending occurred at night time. But the particular night was a Thursday, still in summer, and there were likely to be many other persons in the shopping centre other than the victim and his friends family.

16. Although the absence of consent was not an element of the principal offence, it would have been readily apparent to the offender that the victim did not want to have anything to do with her. He had previously ignored her waving and other gestures to the victim to approach her. As unobtrusively as possible, he was minding his own business washing his hands. This frustrated the offender and prompted her to approach the victim and aggressively, or at least forcefully, grab his hand with the obvious intention of getting the victim to masturbate her. In this she met with the victim’s physical resistance. This was all a serious instance of offending of this kind.

17. Although no victim impact statement was before the Local Court, the agreed facts plainly support the inference that would otherwise have been drawn about how upsetting and distressful the experience was for the victim.

18. The conduct which sustains the offence on the Form 1 was itself serious and although related to the primary offence was nevertheless distinct. The offender had deliberately left the door to the cubicle open when masturbating herself was done in a way which not only gratified the offender but ‘engaged’ the victim in the way that sustained the element that the offender’s sexual act was ‘towards’ him. It was not exhibitionism at large, as the offender would have it, but specifically directed to a teenage boy. The offender took steps to engage the victim, by motioning him to approach her whilst she was masturbating. The circumstances of this additional offending do elevate the weight to be given to specific deterrence and retribution and not insignificantly elevates the penalty for the seq 4 offence.

The offender’s subjective case

19. The offender relied upon the evidence that was before the Local Court but also relied upon fresh evidence that was before the Court in the sentencing proceeding for unrelated offences I dealt with last Friday afternoon.

20. The offender was 31 years of age at the date of the offending. Born a biological male, she identifies as a female.

21. In the reasons for sentence in the Local Court, the learned Magistrate referred to matters concerning the offender’s background touched upon a report by Dr Oliv Neilson dated 2 July 2014. That report was not placed before this Court on this appeal and, with no disrespect, is now somewhat dated. Nevertheless, the learned Magistrate alluded to that professional’s reference to the offender’s difficult upbringing featuring violence perpetrated against the offender by her father arising from or relating to her gender or sexual orientation. The appellant had difficulties at school and an erratic employment history. The Magistrate also found that, notwithstanding the absence of any identified psychiatric condition, the offender had sustained a dysfunctional upbringing, whilst stopping short of finding that this caused or contributed to the offending. It nevertheless remained relevant in the sense connected with likely hardship to the offender, a matter to which I will later turn in these reasons.

22. As I noted in my sentencing remarks last Friday, a forensic psychologist, Kris North, diagnosed the offender as having gender dysphoria. A preliminary diagnosis was also made relating to PTSD or a mood disorder relating to depression, but in the offences the subject of the sentencing proceeding last Friday, there was no suggestion that those conditions materially contributed to the offending the subject of that proceeding. The same thing can be said about this severity appeal.

23. The offender did not give evidence of remorse in the Local Court. She did give evidence of remorse in the unrelated District Court sentencing hearing before me last Friday but that did not address in terms, acknowledgement of responsibility for the subject offending here.

24. As was noted more than once by the learned Magistrate, prior to this offending, the offender had committed serious offences of a sexual character. This included sexual and indecent assault. In December 2012 of using a carriage service to send indecent material, groom a child under 16 for sex, sexual assault and indecent assault. This is not a record that entitles her to leniency.

25. The Magistrate alluded to and accepted evidence of the offender having been assaulted on 6 April 2022, being subject to unwanted sexual advances in custody and inability to obtain hormone replacement treatment that she wanted. This is not to mention the inconvenience to her from being apparently placed in the male part of her correctional centre. All of this established hardship to the offender. That finding was reinforced further by the Magistrate’s acceptance of her being on remand during the Pandemic. I too accept those matters in mitigation.

26. The offender’s mother swore an affidavit for use in the Local Court. This was essentially to prove the level of hardship to her personally if the offender was subjected to incarceration. There was also Dr El-Jaam’s letter of 19 February 2021 about the offender’s mother, which I alluded to in my earlier sentencing remarks; as well as a letter of referral in connection to the condition of the offender’s mother’s left eye in July 2020. Having read a letter prepared by the offender’s mother in the sentencing proceeding, I think it is fair to say that the affidavit that she had sworn in the Local Court presented more emphatic statement of reliance upon the offender than the letter. In the affidavit, she described the offender as being her ‘full-time carer’, and deposed to her being heavily reliant upon the offender for financial, physical, emotional and medical support. But neither in that affidavit (nor in the letter before the Court on the sentencing proceeding) was there any detail of another family member or friend who might assist her if the offender was to be separated from her. (This was notwithstanding the reference in her letter to the offender expecting to obtain ‘family support’. The offender has 3 siblings). The evidence is not of such strength as to persuade me that exceptional hardship would arise from any sentence imposed that would be proportionate to the offending.

27. The learned Magistrate accepted the prosecutor’s submission that the plea that was entered was entered late, given on the date of the hearing when the case was ready to proceed. I adopt that position on this appeal.

28. There was, with respect, little evidence before the Local Court as to the offender’s prospects for rehabilitation or likelihood of re-offending. In the sentencing hearing I dealt with last Friday, there were messages of support for the offender’s rehabilitation not only from her mother, but two other friends. I accept also that Kris North opined that the offender had revealed some insight into her predicament. That can be fairly transposed to the current appeal. But references are also contained to some difficulty – which may not necessarily be all the fault of the appellant – in the efficacy of treatment she has received. The recency of other offending conduct however, leads me to conclude that her rehabilitation prospects are guarded.

This appeal

29. The offender submitted that weight had to be given to the prosecutor trying the offence in the Local Court, rather than in this Court. Counsel renewed an argument that he had raised in last Friday’s sentencing proceeding about the offender not being an appropriate vehicle for general deterrence. Counsel complained that the learned Magistrate may have given insufficient weight to rehabilitation as a relevant sentencing consideration. By comparison, Counsel alluded to my making a finding of special circumstances to the sentencing for the offences last Friday.

30. The Crown submitted that the learned Magistrate ordered an appropriate sentence.

31. I do not find persuasive the offender’s apparent or implied point that some further discount might be given to penalty on account of the prosecution electing to try the instant offence in the Local Court. The penalty imposed by the learned Magistrate represented the jurisdictional limit for the Local Court. That provides no indication of manifest excessiveness. A jurisdictional limit is not a guidepost. A sentencing judicial officer is required to apply the jurisdictional limit only after determining the appropriate sentence; and the appropriate sentence requires consideration of the maximum penalty, the objective seriousness of the offending, matters in aggravation or in mitigation, and a variety of sentencing considerations (Park v The Queen (2021) 395 ALR 193; [2021] HCA 37).

32. The maximum penalty for the offending, if tried in this Court, plainly indicates the inherently serious nature of the offence. I have expressed my view on the objective seriousness of the offending in this case. I have also noted that the offence on the Form 1, which itself was serious, not insignificantly elevates the penalty for sequence 4.

33. Of course, I have to weigh all of the considerations in s 3A of the Crimes (Sentencing Procedure Act) 1999 (NSW). The most important of those are general and specific deterrence, protecting the community, and imposing a penalty reflecting the harm to the victim. There must be a penalty also reflecting denunciation and retribution, the latter factor, as explained, being elevated because of the offence on the Form 1. I take into account the modest discount for the late guilty plea, hardship to the offender from the manner in which she is serving her period of incarceration and her need for rehabilitation, however, in the circumstances, neither of those circumstances overwhelm the need for a condign sentence. The s 5 threshold is crossed and it was not suggested that it was not. Taking into account the guilty plea, and subject to a potential qualification I will now shortly consider, I agree with the term imposed by the learned Magistrate, even taking into account time which notionally might have included a period on parole.

34. The offender’s Counsel invited me to consider totality in the broader sense, to encompass the sentencing I imposed at last Friday’s hearing for unrelated offences. He noted that when tallied up, the sentence imposed last Friday, in terms of the non-parole period, when added to the 2 years imposed by the Magistrate yielded a period in custody of 45 months. For myself, noting the unrelated offences, the different times when they occurred and against different victims, I do not agree that the overall effect of that sentence, when combined with the sentence imposed by the Local Court, is ‘crushing’ when viewing the offender’s criminality overall.

35. The severity appeal is dismissed and the sentence imposed by the Bankstown Local Court on 22 December 2022 is confirmed.

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Amendments

03 May 2023 - Amendments made

Decision last updated: 03 May 2023