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R v Mikhaiel

R v Mikhaiel

Case [2025] NSWDC 453 3 October 2025

Aggravated Sexual Assault

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District Court

New South Wales

Case Name:	R v Mikhaiel
Medium Neutral Citation:	[2025] NSWDC 453
Hearing Date(s):	3 October 2025
Date of Orders:	3 October 2025
Decision Date:	3 October 2025
Jurisdiction:	Criminal
Before:	Haesler SC DCJ
Decision:	Aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years
Catchwords:	CRIME — Sexual offences — Aggravated sexual assault — Victim <16 years — Victim under authority — Sexually touch without consent SENTENCING — Penalties —Sentencing after trial — Imprisonment SENTENCING — Relevant factors on sentence — Deterrence — Moral culpability — Multiple offences — Aggregate sentences — Objective seriousness — Proportionality — Extra-curial punishment considered SENTENCING — Subjective considerations on sentence — Age of offender — Good character — First time in custody — Impact of custody on physical or mental health — Protective custody — Mental disorders and trauma — Pro-social family support — Unlikely to re-offend
Legislation Cited:	Bail Act 2013 (NSW) Child Protection (Offender Registration) Act 2000 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases Cited:	Blackman and Walters [2001] NSWCCA 121 BT v R [2010] NSWCCA 267 Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571 Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41 Cowling v R [2015] NSWCCA 213 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 Engert v The Queen (1995) 84 A Crim R 67 Hogan v Hinch [2011] HCA 4 LB v R [2019] NSWCCA 151 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 R v Daetz [2003] NSWCCA 316 R v Geddes (1936) 36 SR (NSW) 554 R v Herring (1956) 73 WN (NSW) 203 R v Holyoak (1995) 82 A Crim R 502 R v NJK [2011] NSWCCA 151 R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 R v Windle [2012] NSWCCA 222 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Yardley and Betts (1979) 22 SASR 108
Category:	Sentence
Parties:	Magda Fawzi Mikhaiel (the offender) Director of Public Prosecutions (NSW) (Crown)
Representation:	Counsel: P Coady SC with D Pace (for the offender) G Steedman (for the Crown) Solicitors: Oxford Lawyers (for the offender) Director of Public Prosecutions (NSW) (Crown)
File Number(s):	2022/381345
Publication Restriction:	Pseudonyms have been used for the name of the child complainant. Pursuant to s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any information, picture or other material that identifies or is likely to lead to the identification of the child. Identifying information has been removed from this version of the judgment to comply with the statute.

JUDGMENT – EX TEMPORE REVISED

Introduction

On 23 May 2025, after a ten day trial, a jury found Magda Mikhaiel guilty of four counts relating…

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 Mikhaiel

Details

AGLC: R v Mikhaiel [2025] NSWDC 453
Case: [2025] NSWDC 453
Decision Date: 3 October 2025

CaseChat Overview and Summary

In the matter of R v Mikhaiel, the accused was convicted of aggravated sexual assault against a victim. The case was heard in a relevant Australian court, where sentencing was the primary focus following the conviction. The court was tasked with determining the appropriate sentence, considering the principles of deterrence, moral culpability, the objective seriousness of the offence, and the proportionality of the punishment. Additionally, the court examined subjective considerations, including the age of the offender, their good character, the impact of custody on their physical and mental health, the likelihood of re-offending, and the support from their family.

The court assessed the gravity of the offence, recognising the severe nature of aggravated sexual assault and the need to protect society. It considered the multiple offences committed by the offender and the necessity for an aggregate sentence that reflected the cumulative impact of these crimes. The court also balanced these factors against the subjective circumstances of the offender, such as their age, first-time status in custody, potential mental health issues, and the support they would receive from their family. The court determined that a sentence of 5 years and 6 months with a non-parole period of 3 years would appropriately address the objectives of punishment and deterrence while considering the offender's individual circumstances.

The court ultimately concluded that the aggregate sentence was proportionate to the crimes committed, taking into account both the objective seriousness and the subjective factors. The decision underscored the importance of a balanced approach in sentencing that considers both the needs of justice and the individual circumstances of the offender. The final orders mandated that the offender serve a total imprisonment term of 5 years and 6 months, with a non-parole period of 3 years, reflecting the court's comprehensive evaluation of the case.

Orders

Orders of the court

Aggregate sentence of imprisonment of 5 years 6 months with a non-parole period of 3 years

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Mikhaiel [2025] NSWDC 453

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 17 of 17 shown

LB v R
[2019] NSWCCA 151 Para 4

…s 61M(2) Crimes Act . The ratio there was described by judges of the Supreme Court as “absurd” or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. However, another court noted that where such a high standard of non-parole period “has been prescribed by the legislature … the courts must give effect to i…
Cowling v R
[2015] NSWCCA 213 Para 6

…which the events occurred is not a measure of liability but “in every case what matters is the context in which the assault occurs”: Cowling v R [2015] NSWCCA 213 at [16] and [17]. Accordingly, while each offence was committed, the duration of shortness of the offence must have some impact on my assessment of objec…
Bugmy v The Queen
[2013] HCA 37 Para 1

…he crime. Here, I have evidence of the effects of childhood deprivation, poverty, exposure to violence and religious persecution: Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.…
R v Windle
[2012] NSWCCA 222 Para 3

…n them if they commit similar offences: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.…
R v NJK
[2011] NSWCCA 151 Para 4

…t where such a high standard of non-parole period “has been prescribed by the legislature … the courts must give effect to it”: R v NJK [2011] NSWCCA 151 at [40].…
Hogan v Hinch
[2011] HCA 4 Para 4

…er, rehabilitation is also an important consideration and if it can be achieved, is the most durable guarantor of community protection: Hogan v Hinch [2011] HCA 4 at [32] (French CJ).…
BT v R
[2010] NSWCCA 267 Para 4

…ratio in the now repealed s 61M(2) Crimes Act . The ratio there was described by judges of the Supreme Court as “absurd” or “curious”: BT v R [2010] NSWCCA 267; LB v R [2019] NSWCCA 151. However, another court noted that where such a high standard of non-parole period “has been prescribed by the legislature … the co…
DPP (Cth) v De La Rosa
[2010] NSWCCA 194 Para 2

…D and MDD attracting the principles set out by the Chief Judge at Common Law in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.…
Cahyadi v R
[2007] NSWCCA 1 Para 1

…have many common features, and the purposes of sentence apply to each, and those purposes overlap. They require considerable concurrence: Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41.…
Markarian v The Queen
[2005] HCA 25 Para 3

…just to look to either the standard non-parole period or the maximum and then proceed by way of making proportional deductions: Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at [30] and [31].…
Regina v Vu
[2003] NSWCCA 316 Para 1

…licity. So much is to be expected. The material before me indicates they were fair reports, and they do not engage extra-curial principles: R v Daetz [2003] NSWCCA 316 ; R v Holyoak (1995) 82 A Crim R 502. However, it appears that some inmates heard about what had occurred, leading to the transfer to the BIU, and th…
R v Simpson
[2001] NSWCCA 534 Para 2

…t the minimum period for which she should be imprisoned must properly reflect the gravity of her offences and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
R v Blackman and Walters
[2001] NSWCCA 121 Para 5

…t offenders and others who, as here, have not developed settled criminal habits: Yardley and Betts (1979) 22 SASR 108 applied in Blackman and Walters [2001] NSWCCA 121.…
Ryan v The Queen
[2001] HCA 21 Para 3

…t others know the retribution that will fall on them if they commit similar offences: R v Herring (1956) 73 WN (NSW) 203 at [205]; Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267; R v Windle [2012] NSWCCA 222.…
Regina v Simpson
[1999] NSWCCA 367 Para 2

…d for which she should be imprisoned must properly reflect the gravity of her offences and the purposes of sentencing: R v Simpson [2001] NSWCCA 534; 53 NSWLR 704 at [59].…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…55]-[556]. Giving weight to the conflicting purposes of sentencing is what makes the exercise of its discretion so difficult: Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at [476]…
Yardley v Betts
(1979) 22 SASR 108 Para 5

…t assumes particular importance in the case of first offenders and others who, as here, have not developed settled criminal habits: Yardley and Betts (1979) 22 SASR 108 applied in Blackman and Walters [2001] NSWCCA 121.…

Legislation cited in this decision · 5

Crimes (Sentencing Procedure) Act 1999 (NSW)
30E(5), 5(1) 3 mentions (from Para 1)
Bail Act 2013 (NSW)
22B 2 mentions (from Para 1)
Crimes Act 1900 (ACT)
61KD(1)(a) 2 mentions (from Para 4)
Child Protection (Offender Registration) Act 2000 (NSW)
1 mention (from Para 1)
Children (Criminal Proceedings) Act 1987 (NSW)
1 mention