R v Kheder - [2024] NSWDC 571

District Court

New South Wales

Medium Neutral Citation: R v Kheder [2024] NSWDC 571
Hearing dates: 28 November 2024
Date of orders: 29 November 2024
Decision date: 29 November 2024
Jurisdiction: Criminal
Before: Newlinds SC DCJ
Decision:
(1) The Offender is convicted.
(2) Taking into account the matter on the s 16BA schedule, and after applying a discount of 10% for the guilty plea, I impose a sentence of imprisonment of 3 years to commence on 28 November 2024 and expire 27 November 2027.
(3) Being satisfied that there are exceptional circumstances, I order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Offender be released forthwith on a Recognizance Release Order for a period of 3 years, commencing 29 November 2024, upon giving security himself in the sum of $5,000 upon conditions found at para [64]

Catchwords:
CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession — Using carriage service for child abuse material
SENTENCING — Federal offenders — Relevant considerations – Whether “exceptional circumstances” exist under s 20(b) of the Crimes Act 1914 (Cth)

Legislation Cited:
Crimes Act1914 (Cth) s 16A; s 16BA; s 19AB; s 19AC; s 20
Criminal Code (Cth) s 474.22(1)

Cases Cited:
DPP v Latham [2009] TASSC 101
Elias v R (2013) 248 CLR 483
Hili v The Queen (2010) 242 CLR 520
R v Bredal [2024] NSWCCA 75
R v Clarkson (2011) 32 VR 361
R v Hutchinson [2018] NSWCCA 152
R v Kelly (Edward) [1999] 2 All ER 13
R V Skinner [2016] SACFC 106
RE Crowder v The King [2024] VSCA 211
The Queen v Pham (2015) 256 CLR 550

Category: Sentence
Parties: Director of Public Prosecutions (Cth) (Crown)
Yassar Kheder (Offender)
Representation:
Counsel:
K Ng (Crown)
J Lawrence (Offender)
Solicitors:
CDPP (Crown)
Dehsabzi Lawyers (Offender)

File Number(s): 2022/338733
Publication restriction: Nil

JUDGMENT

Overview

Yassar Kheder (“the Offender”) is to be sentenced for the following offence, to which he pleaded guilty at the Downing Centre District Court on 26 September 2024:

Count

Offence

Description

Max. Penalty

1

s 474.22(1) Criminal Code (Cth)

Between about 11 July 2021 and 28 October 2022 at Wiley Park in New South Wales, did access material using a carriage service, that material being child abuse material.

15 years’ imprisonment and/or $199,800 pecuniary penalty

Pursuant to s 16BA of the CrimesAct1914 (Cth) (Crimes Act) the following further offence is to be taken into account:

Count

Offence

Description

Max. Penalty

On a s 16BA schedule

s 474.22(1) Criminal Code (Cth)

Between about 11 July 2021 and 28 October 2022 at Wiley Park in New South Wales, did possess or control child abuse material obtained or access using a carriage service.

15 years’ imprisonment and/or $199,800 pecuniary penalty

The Offender was arrested and granted bail on 11 November 2022. Any sentence of full-time custody will be backdated by one day.

General sentencing principles

The Court must impose a sentence of a severity appropriate in all the circumstances of the offence: s 16A(1) of the

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 Kheder

Details

AGLC: R v Kheder [2024] NSWDC 571
Case: [2024] NSWDC 571
Decision Date: 29 November 2024

CaseChat Overview and Summary

The case of R v Kheder involved the defendant, who was convicted on charges related to child sex offences, specifically the production, dissemination, and possession of child abuse material, as well as the use of a carriage service for such material. The case was heard in a federal court where the primary issues were the appropriate sentencing for these offences, considering the statutory guidelines and exceptional circumstances that might warrant a departure from the standard sentencing principles.

The legal issues the court had to address included the determination of the appropriate sentence for the defendant, taking into account the severity of the crimes committed, the potential impact on the community, and any mitigating factors. The court also had to decide whether there were exceptional circumstances that would justify a departure from the usual sentencing approach, particularly under section 20(b) of the Crimes Act 1914 (Cth), which allows for such a departure if deemed appropriate.

The court meticulously reviewed the evidence and arguments presented, ultimately concluding that while the offences were serious, the defendant’s early guilty plea and other personal circumstances warranted a discount in the sentence. The court imposed a sentence of imprisonment for three years, with a commencement date of 28 November 2024 and an expiration date of 27 November 2027. However, considering the exceptional circumstances, the court also ordered that the defendant be released forthwith on a Recognizance Release Order for the same period, requiring the defendant to provide a security sum of $5,000, subject to specific conditions.

Orders

Orders of the court

(1) The Offender is convicted.

(2) Taking into account the matter on the s 16BA schedule, and after applying a discount of 10% for the guilty plea, I impose a sentence of imprisonment of 3 years to commence on 28 November 2024 and expire 27 November 2027.

(3) Being satisfied that there are exceptional circumstances, I order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Offender be released forthwith on a Recognizance Release Order for a period of 3 years, commencing 29 November 2024, upon giving security himself in the sum of $5,000 upon conditions found at para [64]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Kheder [2024] NSWDC 571
Hearing dates:	28 November 2024
Date of orders:	29 November 2024
Decision date:	29 November 2024
Jurisdiction:	Criminal
Before:	Newlinds SC DCJ
Decision:	(1) The Offender is convicted. (2) Taking into account the matter on the s 16BA schedule, and after applying a discount of 10% for the guilty plea, I impose a sentence of imprisonment of 3 years to commence on 28 November 2024 and expire 27 November 2027. (3) Being satisfied that there are exceptional circumstances, I order, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the Offender be released forthwith on a Recognizance Release Order for a period of 3 years, commencing 29 November 2024, upon giving security himself in the sum of $5,000 upon conditions found at para [64]
Catchwords:	CRIME — Child sex offences — Child abuse material — Production/Dissemination/Possession — Using carriage service for child abuse material SENTENCING — Federal offenders — Relevant considerations – Whether “exceptional circumstances” exist under s 20(b) of the Crimes Act 1914 (Cth)
Legislation Cited:	Crimes Act1914 (Cth) s 16A; s 16BA; s 19AB; s 19AC; s 20 Criminal Code (Cth) s 474.22(1)
Cases Cited:	DPP v Latham [2009] TASSC 101 Elias v R (2013) 248 CLR 483 Hili v The Queen (2010) 242 CLR 520 R v Bredal [2024] NSWCCA 75 R v Clarkson (2011) 32 VR 361 R v Hutchinson [2018] NSWCCA 152 R v Kelly (Edward) [1999] 2 All ER 13 R V Skinner [2016] SACFC 106 RE Crowder v The King [2024] VSCA 211 The Queen v Pham (2015) 256 CLR 550
Category:	Sentence
Parties:	Director of Public Prosecutions (Cth) (Crown) Yassar Kheder (Offender)
Representation:	Counsel: K Ng (Crown) J Lawrence (Offender) Solicitors: CDPP (Crown) Dehsabzi Lawyers (Offender)
File Number(s):	2022/338733
Publication restriction:	Nil

Count	Offence	Description	Max. Penalty
1	s 474.22(1) Criminal Code (Cth)	Between about 11 July 2021 and 28 October 2022 at Wiley Park in New South Wales, did access material using a carriage service, that material being child abuse material.	15 years’ imprisonment and/or $199,800 pecuniary penalty