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

1. 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

2. 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

3. 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

4. The Court must impose a sentence of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act1914 (Cth) (“Crimes Act”). In addition to any other matters, the Court must take into account those matters listed in s 16A(2) of the Crimes Act that are relevant and known to the Court.

Sentencing principles in relation to child abuse material offences

5. The offence carries a maximum penalty of 15 years' imprisonment, which provides an unequivocal indication that the offending is viewed by Parliament as being of the utmost seriousness: Elias v R (2013) 248 CLR 483 at [127].

6. The objective seriousness of offending involving the accessing of child abuse material is ordinarily determined by reference to the following factors:

1. The nature and content of the material, the number of children, the age of the children, the gravity of the sexual activity depicted, and the number of items or images;

2. Whether the material is for the purpose of sale or further distribution and/or profit; and

3. The length of time over which the material was accessed.

7. Whilst volume of material is an indicator, it has been held that the type of material and degree of its depravity is the primary focus, and quantity is secondary: see DPP v Latham [2009] TASSC 101 at [35].

Sentencing factors relevant to this matter

The s 16BA Crimes Act matter

8. The Offender has asked that the Court take into account an offence under s 474.22A(1) of the Criminal Code (Cth), being possession of child abuse material.

9. This means that, while the primary focus remains on the offence for sentence, it is proper for the Court to have regard to the s 16BA matter and give greater weight to the need for specific deterrence and also the community's entitlement to exact retribution.

The nature and circumstances of the offences: s 16A(2)(a) Crimes Act

The facts

10. The Offender used a peer-to-peer file sharing program known as "e-mule" to access child abuse material over the period between 11 July 2021 and 28 October 2022.

11. In total, the Offender accessed 73 images that were child abuse material.

12. The Offender accessed another 17 videos, which were located on his hard drive, but which had been deleted. Those videos are accepted to be child abuse material, but the contents of those videos is not known.

13. The Crown submits that the following matters are relevant to the assessment of the objective seriousness of the offending:

1. The images depicted real children engaging in various acts of sexual intercourse with adults, and also acts of a sexual nature between children.

2. The acts depicted in the images include actual penetration of the genitals and anus of children by adults.

3. The manner of the access was not entirely unsophisticated, as it required the use of peer-to-peer software;

4. The period of time over which the access occurred spanned some 15 months.

14. Given the combined effect of these matters, the Crown submits that the offending falls somewhat below the mid-range of objective seriousness, but not towards the low end of objective seriousness.

15. The s 16BA matter relates to the same 73 images but concerns the criminality of the Offender's possession of that material, rather than the Offender's access of that material (when he downloaded it) through the use of the "e-mule" program. There is therefore a significant overlap between the conduct.

16. The Offender submits:

1. Most of the images involved touching only.

2. The ages of the children range between 8 and 16 years.

3. The images or file names do not depict any physical harm or cruelty.

4. The offending images were small in number.

5. The offender's purpose in accessing the materials was for personal use and he deleted the material after viewing it.

6. While he searched for the files, there is no planning, organization, or sophistication in acquiring these materials. It is not alleged that the activities took place over 15 months, in the sense that there is no evidence that these images were accessed over that duration.

17. The Offender observes that the schedule 16A materials fully overlap the material contained in the indictment and there is no evidence of retrieval of these images.

18. In summary, the Crown has asked me to conclude that the offending falls somewhat below the mid-range of objective seriousness, but not towards the lower end of objective seriousness. Whilst the Offender has submitted that the offending falls into the low end of seriousness for these type of offences.

19. I prefer to avoid these types of labels. They are notoriously unhelpful. The fact is, whilst there were not many images involved, some of the images involved acts of the most depraved and disgusting kinds.

20. The simple fact is that the Offender downloaded and viewed the material which is self-evidently harmful to the children involved and constitutes a significant departure from acceptable standards of behaviour.

General and specific deterrence: s 16A(2)(ja) and (2)(j) Crimes Act, ss 3A(b) and (a) CSPA

21. General deterrence is of particular significance when sentencing for offences of this kind. The sentence to be imposed upon the Offender must make clear to other like-minded persons within the community that offences of this type are abhorrent and that offenders will be met with punishment reflective of the broader community's attitude towards activities involving the sexual exploitation of children.

22. There is also a need for weight to be afforded to specific deterrence. It is clear from the nature and gravity of the offences that the Offender has a sexual interest in children, and as such any sentence to be imposed should be of such a severity as to act as a personal deterrent from him engaging in further offending.

23. The Offender submits, I think correctly, that the strict bail conditions over the last two years and the continued treatment orders and community-based orders would be of sufficient general deterrence given the low level of severity of the offence and the exceptional mitigating circumstances of this offender. The continued rehabilitation of the Offender is of great significance to the community and would be acknowledged by the public at large as a means of further protection to the community. The Offender contends that specific deterrence has already been addressed.

Any injury, loss or damage resulting from the offences: s 16A(2)(e) Crimes Act

24. The images depict real children being sexually abused. It is axiomatic that caused real damage to real children: R v Clarkson (2011) 32 VR 361.

Guilty plea: s 16A(2)(g) Crimes Act, ss 21A(3)(k); Remorse and Contrition: s16A(2)(f) Crimes Act

25. The NSW mandatory discount scheme does not apply to federal offences.

26. The fact of the plea may be relevant for its subjective value as evidence of genuine contrition, acceptance of responsibility and/or a willingness to facilitate the course of justice.

27. The strength of the Crown case may be taken into account in assessing the subjective value of a guilty plea, including whether the Offender's plea was simply "recognition of the inevitable". It follows that a guilty plea entered in the face of a strong Crown case may be afforded less weight (in the assessment of its subjective value) as a plea entered in circumstances where the Crown case is weak.

28. That being said, the Court must have regard to the utilitarian or objective value of a guilty plea, even in the absence of any subjective value.

29. The Offender's plea was entered at a late stage in proceedings. However, I think that is explicable by his mental health conditions, to which I will come to.

30. It is accepted by the Crown that the Offender's significant admissions made to police are matters that the Court can properly take into account in determining whether the Offender is contrite or remorseful.

31. The Offender’s submission is as follows. He has demonstrated his contrition for the offence. He called the police to self-report prior to the execution of search warrant. He fully cooperated and admitted to his offence. He pleaded guilty. His delay in entering the plea is largely explained by his mental health issues. Although Dr Martin found him fit to plead, he was struggling with his PTSD and his guilt and shame. His remorse included feelings of guilt and shame; this is demonstrated by his self-reporting to the police. At first, he did not know it was illegal to watch such materials however he has since shown substantial progress in understanding his behaviour and consequences. In considering all the circumstances the court can come to the view that his contrition is genuine.

32. The Offender pleaded guilty to the offence prior to trial. I find that his delay was largely due to his struggle with mental health issues, and skills in dealing with interpersonal relationships. His plea of guilty had a utilitarian value to the court. He has saved the court time and costs; witnesses were spared from attendance; and exposure of child abuse material was limited to few and produced to court in print format.

33. Whilst the guilty plea was made in the context of a very strong Crown case, it was also made in circumstances where the Offender had effectively admitted his guilt from the earliest stages of the investigations. Somewhat inconsistently having done that, the Offender then delayed entering a plea of guilty. I accept the submissions made on behalf of the Offender, that this delay is not something that should be taken into account so as to find that the Offender has not shown any real remorse or contrition. To the contrary, I think it is a consequence of his state of mental health and find that the Offender is genuinely contrite and remorseful in relation to his conduct and is entitled to an arithmetical discount for the plea of guilty, albeit late, of 10% and significant additional weight for what I consider to be his genuine remorse and contrition and commitment to rehabilitation.

Character, antecedents, age, means and physical or mental condition: s 16A(2)(m) Crimes Act

34. The Offender is aged 41 and was between 37 and 38 at the time of the offences.

35. He has no recorded criminal history.

36. The Offender is single, never having a long-term relationship or children. He lives in a shared rental accommodation. He has recently obtained a part -time job as a car detailer. Although he studied languages in TAFE post his year 10 education, he mainly worked in the hospitality industry.

37. His personal circumstances, especially his mental health resulting from his past trauma are fully set out in the two reports by Dr Martin and Mr. Camacho. By way of background, he reports violence including threats of kill from his father. He was abandoned by his mother and had disruptive upbringing. He was a witness in a trial in which he reported his father for sexually assaulting his sister. His father was convicted. Mr. Camacho reports the physical acts and emotional abuse by this father towards him and his sisters including the sexual abuse of his sister 'have profound implications for his mental health.... The trauma associated with such experiences can lead to a range of psychological issues, including anxiety, depression, PTSD, and feelings of shame and guilt.'

38. Dr Adam Martin's report dated 16 October 2023 (a report commissioned by the Crown into his fitness to plead) also connects his past trauma to the Offender’s present symptoms. Significantly, Dr Martin opines that “... his experience of paranoia and various other symptoms including mood dysregulation are most likely in the context of childhood trauma and disrupted attachments, in my view, it is likely that he has complex posttraumatic stress disorder and has been significantly impaired in his level of function around work and relationships. There is some suggestion of possible autism spectrum disorder, given his restricted activities and problems around interpersonal functioning, which in formulation may be framed as part of chronic trauma and adverse childhood experience. There is a strong suggestion of instability growing up and his father having problems around emotional and sexual regulation, and a significant forensic history”.

39. The opinion of Dr Martin is consistent those of Mr. Camacho. The Offender’s feelings of guilt and shame together with the PTSD predated this offence. He has suffered from mental health issues at least from age 20. He had a mental health crisis and was admitted to the Mental Health Unit at St. George Hospital in 2020 and prescribed various medications. In November 2022, he was again admitted to hospital for worsening suicidal ideation, compounded by the charges in addition to his pre-existing PTSD.

40. Mr. Camacho states that 'Mr. Kheder's offences appear to be closely linked to his psychological state, which significantly affected his decision making.' This is consistent with the observations at paragraph 13 of that report that “the psychological ramifications of experiencing violence and instability during formative years often manifest in adulthood as challenges related to mental health, emotional regulation, and interpersonal skills.” “The trauma associated with such experiences can lead to a range of psychological issues, including anxiety, depression, PTSD, and feelings of guilt or shame”. His scores of depressions and anxiety were assessed to be at the severe levels.

Prospects of rehabilitation: Crimes Act ss16A(2)(n) and 16A(2AAA)

41. The objective of rehabilitation does not displace the requirement that the sentence must be of a "severity appropriate in all the circumstances of the offence". That is, while the requirements of s 16A(2AAA) must be taken into account, the objective of rehabilitation should not overwhelm other important sentencing considerations such as general and specific deterrence and adequate punishment. The principal purpose of rehabilitation in this context is to protect the community by ensuring offenders are required to undertake treatment in custody or upon release from custody to prevent reoffending.

42. The Offender has shown a keen interest in his treatment and is undertaking treatment under Mr. Camacho, who opines that his prospects of rehabilitation are good subject to continuing treatment. Mr. Camacho opines that in a medico legal context, 'this capacity of self- reflection and acknowledgement of responsibility can be integral to assessing his readiness for rehabilitation and community reintegration'.

43. I am satisfied, firstly, that the Offender’s conduct was directly linked to his mental health issues, which significantly reduces his moral culpability and makes him an unattractive candidate to be used as an example for general deterrence.

44. Perhaps more importantly, I am satisfied that the Offender has shown a genuine commitment to changing his ways and has entered into a treatment program with Mr Camacho and appears to be participating in it enthusiastically and diligently.

45. Mr Camacho's opinion is that he has good prospects of being rehabilitated if he continues on this course, and consequently, in my view he has a very low prospect of reoffending.

46. The author of a Sentencing Assessment Report has assessed him as medium-low risk of offending but took a rather negative view to the Offender’s remorse and insight. I think the problem is that the Offender has difficulty explaining his state of mind and, from time to time, does seek to justify his actions, but all of this is a consequence of his mental health conditions.

47. Notwithstanding the observations made in the Sentencing Assessment Report, my own view is that he has shown real remorse and contrition and that is prospects of reoffending are low.

Setting the sentence in this case

Commonwealth offences

48. Where the sentence of imprisonment imposed is more than 3 years, the Court must fix a non-parole period unless reasons are provided as to why it has declined to do so: s 19AB Crimes Act.

49. In the event that the Offender is sentenced to a term of imprisonment of 3 years or less, the Court must impose a recognizance release order, and must not fix a non-parole period, pursuant to s 19AC(1) Crimes Act. For Commonwealth child sex offences, the Court is also required to impose mandatory conditions as part of the order, as outlined in s 20(1B) of the Crimes Act.

Presumptions applying to Commonwealth child sex offences

50. Pursuant to s 3(1) of the Crimes Act, the offence for sentence is a 'Commonwealth child sex offence'.

51. The effect of s 20(1)(b)(ii) of the Crimes Act is that, if a court determines to sentence a Commonwealth child sex offender to imprisonment but release them on a recognizance release order, there is a presumption that they will serve some period of actual imprisonment unless there are exceptional circumstances that justify the offender being released immediately on a recognizance release order. This amendment was intended to ensure "that child sex offenders receive sentences that reflect the exceptionally serious nature of their crimes".

52. The meaning of "exceptional circumstances" has recently been considered in the decision of R v Bredal [2024] NSWCCA 75 (“Bredal”), where Dhanji J quoted, with approval, the observation made by Lord Bingham in R v Kelly (Edward) [1999] 2 All ER 13 (“Kelly”) at [20] where his Lordship, also in the context of sentencing legislation, said:

“We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”.

Sentences imposed in other cases

53. In Hili v The Queen (2010) 242 CLR 520, the High Court of Australia, by majority, affirmed that consistency in federal sentencing is achieved when regard to what has been done in other cases through the work of the intermediate courts of appeal. This was reaffirmed by the High Court of Australia in The Queen v Pham (2015) 256 CLR 550 at [28].

Conclusion

The competing submissions

54. The Crown submits that, having regard to the sentencing considerations above - in particular the objective gravity of the offences, the maximum penalties applicable, and the importance of general deterrence, that, absent exceptional circumstances, the only appropriate sentence is a period of full-time imprisonment.

55. On behalf of the Offender, it is accepted that a penalty of imprisonment is inevitable, but it ought be less than 3 years and that the Offender meets exceptional circumstances for the purposes of sentencing, so that he qualifies to be released on a Recognizance Release Order under strict conditions.

56. The combination of factors relied upon for a finding of exceptional circumstances are as follows:

1. low severity and quantity of child abuse materials;

2. the strong mitigation factors especially the mental health issues of the offender and its association with his PTSD arising from violence and emotional neglect at early age;

3. the surrounding circumstances set out in the mitigation factors such as plea of guilty, self-reporting to the police, co-operation;

4. good character of nearly 40 years, he has no prior convictions;

5. strict bail conditions for over 2 years;

6. future challenges due to his mental health issues compounded with having a conviction on his record which will affect his future prospects of employment and access to services; and

7. good prospects of rehabilitation, which is already in progress.

8. his need for continuity in his mental health treatment;

9. continued stability such as housing and employment to progress his rehabilitation; and

10. continued transition into society where he is supporting himself without further burdening society.

Resolution

57. I do not accept the description by the Offender that the material was "low severity and quantity”. True it is that there are not that many images, however, at least some of them are extreme.

58. I do accept the balance of the submissions made on behalf of the Offender and find that there are exceptional circumstances as that phrase is explained in Bredal and Crowder (a pseudonym) v The King [2024] VSCA 211 at [67]. I consider the combined effect of all the factors I have discussed in relation to both the objective seriousness of the offending and the offenders subjective case to, at the very least, make the circumstances unusual, special, or uncommon, in particular, because of the significant mental health issues confronted by the Offender and what I consider to be his good prospects of rehabilitation and low prospects of reoffending.

59. In my opinion, the Offender’s conduct is explicable by his mental health conditions, which in turn are the consequence of a difficult childhood which involved trauma and disrupted attachments. Looked at in that way, his moral culpability is low, he is not a good candidate to be held up as an example for general deterrence.

60. I consider the treatment he is undergoing at the moment to be appropriate and that, if he continues on the path he currently is on, his prospects of being rehabilitated are high and his prospects of reoffending correspondingly low.

61. Taking all those matters into account and without seeking to downplay the objective seriousness of the offending and the need for general deterrence, denunciation, and the like, I am satisfied that, notwithstanding that the only appropriate sentence is a term of imprisonment, the Offender ought be released forthwith on a Recognizance Release Order on conditions.

Orders

62. My orders are as follows:

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 the following conditions:

1. To be of good behaviour.

2. To, within 7 days of this order, report to Bankstown Community Corrections, and thereafter to be subject to the supervision of a Community Corrections probation officer.

3. To obey all reasonable directions of the probation officer.

4. To not travel overseas or interstate without the written permission of the probation officer.

5. To undertake such treatment or rehabilitation programs that the probation officer reasonably directs.

6. To continue under the care of Mr Camacho, psychologist

7. To continue with the treatment plan recommended by Mr Camacho at paragraphs 34 to 39 of his report of 18 November 2024, as varied from time to time by Mr Camacho.

4. The Court orders that, pursuant to s 23ZD of the Crimes Act 1914 (Cth) and upon the application of the Director of Public Prosecutions (Cth), the following items are forfeited to the Commonwealth:

1. One (1) Toshiba Laptop (X0003063111)

2. One (1) Toshiba Hard Drive (X0003063112)

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Decision last updated: 29 November 2024