R v Moh'd

[2024] NSWDC 522

District Court

New South Wales

Medium Neutral Citation:

R v Moh’d [2024] NSWDC 522

Hearing dates:

9/7/24-6/8/24, 27/9/24

Date of orders:

27 September 2024

Decision date:

27 September 2024

Jurisdiction:

Criminal

Before:

Bourke SC DCJ

Decision:

Convicted and sentenced to an aggregate term of imprisonment of 5 years 2 months with a NPP of 3 years 6 months (5/8/24-4/2/28). I find special circumstances.

Indicative sentences:

Count 1 – 12 months with NPP 8 months

Count 2 – 18 months with NPP 12 months

Count 5 – 4 years 2 months with NPP 33 months

Count 6 – 12 months with NPP 8 months.

Catchwords:

Crime – Sentence -

Legislation Cited:

Crimes Act 1900

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1

Mohindra v R [2020] NSWCCA 340

MRW v R [2011] NSWCCA 260

Category:

Sentence

Parties:

NSW DPP – Crown
Ali Moh’d - Offender

Representation:

Ms S Beaumont for Crown
Ms L Barnes for Offender

File Number(s):

22/93559

Publication restriction:

Statutory non-publication in relation to the identities of the victims

remarks on sentence

1. The offender, Mr Ali Moh’d, stood trial before a jury between 8 July and 6 August 2024 on an indictment containing eight counts. On that latter date, the jury found him guilty of counts 1, 4, 5 and 6 but not guilty of the remainder.

2. The offences for which he is therefore to be sentenced involve three counts of aggravated sexual touching. Those being counts 1, 4 and 6. Each of those are offences under s 61KD(1)(a) of the Crimes Act 1900 and each of them carry a maximum penalty of seven years imprisonment and each of them have specified a standard non-parole period of five years. Furthermore, there is count number 5 which is an offence under s 61J(1) of the Crimes Act being an offence of aggravated sexual assault. And, of course, in the case of all of the offences, they involve a circumstance of aggravation, that being that the victim in each case was under the authority of the offender. In the count 5 offence, the maximum penalty specified is 20 years imprisonment and a standard non-parole period is specified of ten years.

3. The maximum penalty and the standard non-parole periods are, of course, important guideposts or yardsticks in the sentencing exercise to which I must have and have had regard.

FACTS

4. Turning then to factual matters. The facts for the purposes of sentence are to be determined by myself but must be consistent with the verdicts of the jury. Any matters of aggravation must be proved beyond reasonable doubt. However, matters in mitigation need only be proved on the balance of probabilities.

5. I find the following facts. The offender was at all relevant times a nurse. At the time of the offences, he was employed as a Clinical Nurse Specialist and worked at Nepean Private Hospital and Norwest Private Hospital and generally worked in the intensive care and coronary care areas.

6. The count 1 offence occurred on 12 December 2018 at Nepean Private Hospital. It was committed upon a 21-year-old graduate nurse, who is referred to in these proceedings as EL, who was doing a practical placement at the hospital and who was allocated to work with the offender. The offence occurred when the offender took EL into an empty room with the stated intention of showing her the method for listening to bowel sounds.

7. This commenced with the offender placing the diaphragm of a stethoscope against his own abdomen. It then progressed to the offender handing the stethoscope to EL and suggesting that she listen to her own abdomen. However, when EL placed the diaphragm onto her abdomen over her shirt, the offender told her that it had to be on the skin. And so EL, who was feeling awkward, placed the stethoscope diaphragm under her shirt, which was arranged at that time in such a way that her abdomen was still covered.

8. When the offender asked if she could hear any bowel sounds, EL said she could not but added words to the effect of “but it’s okay, don’t worry about it” because she felt awkward about the situation. The offender, however, quickly took the diaphragm from her saying “sometimes you need to go lower”.

9. Although it is accepted that the jury’s verdict means that it must have been satisfied beyond reasonable doubt that there was at this point a form of sexual touching, there is a dispute as to exactly what this involved.

10. It was argued on behalf of the offender that this touching was limited to touching EL’s underwear and her lower abdomen. There were, as counsel for the offender submitted, some inconsistencies in the earlier accounts given by EL in her complaints to others and in her police statement, and I have considered these aspects. However, they are not such that they cause me to have a reasonable doubt about the essence of the evidence given by EL in the trial.

11. In this regard, her evidence, which I accept beyond reasonable doubt, was that the offender touched her lower abdomen with his hand and that he then used a finger or fingers to touch her underpants, which he pulled away from her skin, after which he looked down at her exposed pubic area. In part of EL’s evidence, which was entirely consistent with an actual memory, she recalled that when the offender let go of her underwear, she felt and heard the underwear flick back onto her skin.

12. My findings about these events are not only consistent with the evidence given by EL, who I found to be a genuine and understated witness, but it is also consistent with the particulars set out in the elements document, MFI 45, which was given to the jury during my summing up. As a result of the offender’s actions, the victim EL was frozen and in shock and did not know what to do, although she later made complaints to hospital staff.

13. Counts 4 and 5 relate to JR. The offences both occurred on 17 September 2021 when JR was aged 25 and was a patient at Norwest Private Hospital. She had been admitted into the hospital on 15 September 2021 for the purposes of a heart study.

14. This procedure required the insertion of a catheter device by accessing a vein in the groin. The offences occurred when the offender went to JR’s hospital bedroom after he had been asked by another nurse to check the surgical wound site on JR’s groin. The clinical need for such an inspection to be done was to check for any problematic clots or other complications with the wound site.

15. The sexual touching offence, which is the subject of count 4, occurred in the following circumstances of which I am satisfied beyond reasonable doubt based on the evidence given by JR. In my view, although there were some inconsistencies in her evidence, she was nonetheless an honest and essentially reliable witness, albeit one who was understandably very uncomfortable in giving evidence about such intimate and embarrassing matters. As I have said, I accept beyond reasonable doubt her evidence that the offender entered the room and told JR that he needed to inspect her wound. He told her to pull down her pants and underpants which she did. The offender then touched both sides of her groin area but then commenced to use his hand to massage her genital area, including in the area of her clitoris, while leaning over and looking at her genital area. The massaging was not brief but went on for some minutes.

16. The sexual intercourse offence, which is the subject of count 5, occurred when the offender, while still leaning over and looking at JR’s pubic region, used his hands to part her labia and then inserted a finger into her vagina. I am unable to determine for how long his finger remained inside her vagina, but it was at least a number of seconds.

17. Count 6 relates to RK who was admitted to Nepean Private Hospital on 28 February 2022 for the purposes of an angiogram. As a result of that procedure, RK, who was then aged about 67 years, was told that she would need to have quadruple bypass surgery and that she had to stay in hospital until that surgery was done. While awaiting that surgery, RK spent about four to five days in Nepean Private before being transferred to Norwest Private Hospital where the surgery was to be performed.

18. During that waiting period, RK had heart monitoring stickers attached to her body so as to monitor her vital signs. On the day of the offence, RK buzzed the nurses’ station, seeking help with removing the heart monitor leads so that she could shower. It was the offender who attended upon her on this occasion, and the offence occurred when the offender returned to replace the stickers after RK had showered.

19. Based on RK’s evidence, which she gave in a clear and forthright manner, I find beyond reasonable doubt that, at a time when her breasts were exposed, the offender, while in the process of replacing the monitor stickers, used a hand or hands to touch RK’s breasts while making a comment to the effect of “you have nice breasts for a woman your age”.

20. Those are the objective facts of the various offences upon which I proceed to sentence.

OBJECTIVE SERIOUSNESS

21. It is necessary that I make an assessment of the objective seriousness of each of the offences. There can be no doubt that the offences before the Court are serious. The maximum penalties and the standard non-parole periods that apply make that clear. However, that observation can be made about any example of these types of offences, and so it is necessary that I make an assessment of the relative seriousness of the particular examples of offending that are before the Court.

22. Firstly, I accept that all of the offences were opportunistic. In other words, they did not involve planning or any sophistication. However, it is appropriate, I think, to observe that offences like those before the Court are particularly insidious by reason of the context in which they occurred. That context was one where the offender occupied a position of trust and authority because of his professional standing as an experienced nurse.

23. In the case of EL, her contact with the offender was to receive appropriate practical training from him. In the case of JR and RK, their contact with the offender was because of their medical needs. The offender manipulated and abused his position of authority for his own sexual gratification. That is the irresistible conclusion to be drawn from the various incidents which were all clearly of a sexual nature.

24. The fact that the offences did not involve the offender exposing his penis and that he did not demonstrate to the victims any overt signs of sexual arousal does not alter my conclusion that the offences were insidious and carried out for the offender’s sexual gratification. Of course, if the offences had been accompanied by obvious signs of sexual arousal in the offender or had involved other actions, such as exposing his penis, this would likely have rendered the offences more serious and may have involved additional offences. But in my view the absence of such aspects does not reduce the seriousness of what the offender actually did.

25. In stating that all of the offences involved a breach of trust and of authority, I do not intend to suggest that I have treated these as additional aggravating factors. Firstly, the aspect of authority is an element or essential ingredient of each of these offences. In other words, the aggravating aspect of under authority is built into the maximum penalty. Secondly, while I think that all of the offences involved a breach of trust, I do not treat this as a matter that increases their objective seriousness because, in the circumstances, and as I will discuss further in a moment, the trust aspect was in this particular case, really another facet of the element of under authority.

26. The offence in count 1 that involved EL was committed upon a 21-year-old student nurse. It involved unwanted skin-to-skin touching of her body in the area of her lower abdomen. It also involved the offender pulling EL’s underwear away from her abdomen so as to look at her exposed genital area. This was obviously very shocking and embarrassing for EL and caused her to freeze. While I cannot determine exactly how long this went on for, I am satisfied that it was for at least some seconds and was not momentary. The offender abused his senior position and teaching role, in other words, his “authority” in order to carry out this offence. However, this is an element that is built into the offence and does not further aggravate its seriousness.

27. The Crown also argued that this offence involved a breach of trust by reason that the offender had developed a sense of obligation in EL by giving her special care and attention. I accept that in some cases a breach of trust may be made out in addition to a breach of authority and that they are separate concepts: see MRW v R [2011] NSWCCA 260 at para 77. However, much depends on the circumstances of the case: see Mohindra v R [2020] NSWCCA 340.

28. In this case involving count 1, it seems to me that, while the circumstances and the jury verdict support the element of “under authority”, they do not support a finding that there was also a breach of trust. The relationship between the offender and the victim was very brief and was completely work-related, and in my view the offence is better seen as a breach of authority only. In my view, the offence in count 1 is comfortably below the mid-range of seriousness and towards the lower end, although it is not in the lowest range of objective seriousness.

29. The count 4 sexual touching offence committed on JR involved direct skin-on-skin contact with her genitalia, which the offender had deliberately required her to expose, so that he could touch her in that area and in the area of her clitoris while looking at her genital region. That was obviously a horrifying experience for the victim who initially and understandably believed that the offender was acting professionally. The touching was not at all brief but went on for some minutes.

30. The Crown submitted that JR was vulnerable due to her psychological condition and that the offender took advantage of this. I have considered this submission. But it seems to me that the greater vulnerability of this victim, like any person being attended to by a medical professional, arose from the patient-nurse relationship. In other words, it was the fact that JR was in need of medical attention which most made her vulnerable. This was, in my view, an aspect of the way in which the offender’s authority was being abused. I am therefore not satisfied that it is appropriate to treat the offence as more serious because of any additional vulnerability in this particular victim. Having regard to the various matters I have discussed, I consider that this offence in count 4 sits around the mid-range of objective seriousness.

31. The count 5 offence occurred at about the same time. It involved the offender using his hands to part JR’s labia and to then, while peering towards her genital area, place his finger briefly inside her vagina. In my view, this is an offence that is below the mid-range for this type of sexual intercourse offence and towards but not in the lower range of objective seriousness.

32. The count 6 offence involved the offender, for no legitimate purpose, using his hand or hands to touch the breasts of RK while commenting that she had “nice breasts”. Again, this involved an abuse of the position of authority which the offender occupied. But, as I have said a number of times, this is an inherent element OF the offence and does not further increase its seriousness. While I accept that the victim was vulnerable, it seems to me, as I have earlier set out when discussing counts 4 and 5, that her vulnerability really arose from the nurse-patient relationship which is always based on trust. However, in saying this, I am not suggesting that breach of trust is an aggravating matter. Rather it is, as I have earlier said, inherent in the position of authority which any person providing medical treatment usually occupies.

33. In my view, the count 6 offence lies comfortably below the mid-range of objective seriousness and towards the lower end, although it is not in the lowest range of objective seriousness.

VICTIM IMPACT STATEMENTS

34. The Court has received a Victim Impact Statement from each of RK and EL. It was not suggested by the Crown that these statements aggravate the offending such that the injury or emotional damage should be regarded as an aggravating feature for the purposes of s 21A subs (2)(g) of the Crimes (Sentencing Procedure) Act 1999. However, the Crown points to these Victim Impact Statements as confirmation of the serious impact that sexual offending usually can be expected to involve.

35. The two Victim Impact Statements speak in very clear terms of the fear, confusion, shock and sense of violation that the victims experienced at the time of the incidents. They speak also of the lasting impacts that the assaults continue to have on them, including their loss of trust and fears of something similar happening in the future. While there is no victim impact statement from JR, I have no doubt that the offending in her case has left its mark in a similar way.

36. While the offending must be treated very seriously, especially given that the offences involved a breach of authority, I accept, as I have said, that the offences were opportunistic and did not involve sophistication or planning. As I also said, the breach of authority is, of course, an element or essential ingredient in each of the offences.

37. I also accept that the offender has no previous history of offending. It was argued that he is to be treated as a person of prior good character. While that might be so to some extent, the weight that I attach to this is not great, given that these offences were committed over a period of more than three years and given that it was his prior good character that enabled him to be in the clinical environment where these offences were committed.

SUBJECTIVE MATTERS

38. I turn then to consider subjective matters relating to the offender himself. He is now aged 44. He has no prior criminal history. His subjective case has been placed before the Court by means primarily of the report of psychologist Ms De Santa Brigida and some other written material.

39. The offender was born in Kuwait, and he has two sisters and four brothers. His mother apparently still lives in Kuwait and is aged 67. His father apparently was living in Jordan but died last year aged 83. The offender told the psychologist, Ms Brigida, that after the Gulf War in 1990, he lived with his mother and siblings in Iraq, while his father, who worked in hospital administration, remained in Kuwait to earn money to send to the family. The offender reported that, for two years after the end of the war, the family were unsure of the father’s whereabouts or whether he was still alive. However, the family eventually moved and were reunited with the father apparently in Jordan.

40. The offender did not report exposure to physical or sexual abuse in his family. However, he told the psychologist that during his developmental years there was some physical abuse from people in the community because his family were considered to be Palestinian refugees.

41. After completing high school in Jordan, the offender did a Bachelor of Nursing Science degree and was employed for three years as a nurse in Jordan before moving to Saudi Arabia where he also worked as a nurse for about three years. The offender came to Australia when he was aged 29 and worked initially in aged care with a Salvation Army nursing home for five to six years. After this, he gained employment as a nurse at Nepean Hospital. Between 2020 and 2022, he also worked as a clinical nurse specialist at Norwest Private Hospital.

42. The offender has no history of problems with alcohol, drugs or gambling.

43. He married his wife, who now works as a medical practice manager, when the offender was aged 29. They have two children together who are now aged 11 and 14. The offender reports that his wife remains very supportive of him despite his convictions. I note that the offender’s wife was present during much of the trial and indeed is present currently and was during the sentence hearing this morning.

HARDSHIP TO FAMILY

44. The letter from the offender’s wife describes the very significant impact that the offender’s incarceration has had on her and their children. This is understandable and regrettable but an almost inevitable consequence of serious criminal offending such as this. Families who have themselves done nothing wrong usually suffer collateral damage. It has not, in this case, been argued that the impact upon the offender’s family rises to the level where it can significantly ameliorate the sentence. However, it is an aspect that I have taken into account as part of the offender’s overall subjective case and as part of the instinctive synthesis which I must perform in sentencing him.

MENTAL HEALTH

45. The psychologist, Ms Brigida, concluded that the offender meets the diagnostic criteria for Post-Traumatic Stress Disorder based on his childhood experiences which included growing up in a war-torn country, facing the possibility that his father had died and the absence of his father from a young age. The psychologist appears to have excluded, as a contributor to this diagnosis, the offender’s experience working as a nurse in Jordan when the hospital where he worked had to deal with multiple patients who had been injured in a terror attack.

46. In addition to the continued support of his wife, the offender is supported by character references from two surgeons who speak of their experiences of the offender in very positive terms. I have no doubt that these are genuinely held views which have been informed by their exposure to the offender in his capacity as a nurse. However, the weight that I attach to these is limited, given that it was the offender’s nursing which placed him in a position where he was able to commit the offences.

REMORSE AND PROSPECTS OF REHABILITATION

47. There is no remorse in this case, despite the verdicts of guilty and the compelling evidence supporting them. Rather the offender maintains his innocence and intends to appeal his convictions.

48. The psychologist, Ms De Santa Brigida, applied a number of tests aimed at assessing the risk of re-offending and concluded that the offender is probably within the average and not in the medium to high range of risk for sexual recidivism. This is reasonably consistent with the result noted in the Sentencing Assessment Report which is based on the LSI-R assessment tool. However, these assessments are, of course, largely actuarial ones and are not necessarily predictive of the risk in a particular offender like this one.

49. I accept that the offender is a low risk of committing offences within a medical setting in the future. However, that is because he will never in the future be permitted to work in such an environment.

50. On the other hand, these offences, which I accept beyond reasonable doubt that he committed, were in their essence examples of opportunistic preying upon women who were effectively under the offender’s authority or control. In my assessment, the offender will continue to be some risk of opportunistic sexual offending in the future should he be given the opportunity. However, given his family supports, his lack of other offences and the availability to him of work in a different area upon his release, I consider his prospects of rehabilitation to be reasonable.

51. I have earlier set out the psychologist’s conclusion as to the offender suffering a mental health condition. I have taken that into account in the sense that it may render his time in custody more difficult in the manner suggested or discussed in the well-known case of Commonwealth DPP v De La Rosa (2010) 79 NSWLR 1. However, the weight that I attach to this aspect is not great, given that the offender is a person who seems, until recent times, to have navigated his family and working life with little obvious problems.

DETERMINATION

52. In determining the overall sentence, I have had regard to the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999 which involve the importance of adequate punishment, of deterring the offender and others, of protecting the community, of making the offender accountable, of denouncing his conduct, and of recognising the harm done to the victims and the community generally, but also, of course, to the extent that it is possible, promoting the rehabilitation of the offender. It seems to me that all of those factors are important in this case, in particular the aspect of general deterrence.

53. I am satisfied for the purposes of s 5 of that same Act that, in relation to each of the offences, the so-called threshold in that section is passed. In other words that no sentence other than one of imprisonment is appropriate.

54. I intend, given that there are four offences, to impose an aggregate sentence. I will make an adjustment, by reason of a finding of special circumstances, to the ordinary ratio between the non-parole period and the head sentence. I make that finding based upon this being the offender’s first experience of custody and by reason of the mental health issues to which I have referred.

55. Given that I am imposing an aggregate sentence, it is necessary that I set out the indicative sentences that I would otherwise have imposed.

56. Mr Moh’d, these are what are called indicative sentences. These are not the final sentence. The final sentence will be made clear in a few moments.

57. The indicative terms are as follows. For count 1, a head sentence of 12 months imprisonment with a non-parole period of eight months. For count 4, a head sentence of 18 months imprisonment and a non-parole period of 12 months. For count 5, that being the sexual intercourse count, a head sentence of four years two months and a non-parole period of 33 months. And for count 6, a head sentence of 12 months with a non-parole period of eight months.

TOTALITY

58. In determining the final sentence, I have had close regard to totality principles. In other words, the extent to which there should be any notional accumulation among the various indicative sentences when determining the overall head sentence and non-parole period. In my view, there does need to be some degree of accumulation, particularly having regard to the fact that there are three individual victims and given the fact that the offending upon them occurred at different times and times that were separated by considerable periods of time. On the other hand, there should be only minimal notional accumulation between the sentences imposed for counts 4 and 5, given that they were committed on the same victim and were effectively part of a single episode.

59. Mr Moh’d, if you stand up, I will announce the sentence. I impose an aggregate head sentence of five years, two months imprisonment. I impose a non-parole period of three years, six months. They will date from 5 August 2024. The head sentence therefore will expire on 4 October 2029. The non-parole period will expire on 4 February 2028. You can take a seat. Ms Crown, Ms Barnes, anything to say about those dates or any factual matters?

60. SPEAKER: No, your Honour.

61. HIS HONOUR: All right. Thank you. Mr Moh’d will have to be taken back into custody.

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Decision last updated: 06 November 2024