MOKHAIBER, Tarek v R

The Facts 15A statement of agreed facts was tendered which the sentencing judge recited in his remarks on sentence. Although his Honour's recitation is lengthy, it is necessary to quote his remarks verbatim in order to properly understand the offences. "In around December 2007 the offender was thirty-two years old. The complainant was fourteen years and seven months. In the period in which the offences were committed, February 2008 through to August 2008 the complainant was aged between fourteen years and nine months and fifteen years and three months. The complainant lived at Canley Vale. In order to get home from school she would take a bus to Guildford train station, then a train to Merrylands, then she would walk from Merrylands train station to her house. This journey would take between forty-five minutes and one hour. On three separate days during December 2007 whilst at Guildford between her bus trip and train trip the offender who was unknown to her approached her in a white van with registration number AR7 7KN. He offered her a lift home. He also complimented her appearance. She was wearing a school uniform on these occasions. She declined these offers. On the second occasion he asked her for her phone number. She told him that she did not have a phone. Shortly after this in December 2007 the offender again approached her whilst he was driving a black car. The complainant was wearing a school uniform. Part of that uniform was a skirt. He said, "We are like friends now, you should get in the car." The complainant got in the car because the offender had told her that he would drive her home. On this journey the offender told the complainant that he was around eighteen to twenty-five. As he was driving the offender told the complainant his phone number. She entered this phone number into her mobile phone. The complainant gave the offender her mobile phone number. The offender drove the complainant to her house. She directed him there. On this occasion the complainant kissed her on the cheek and told her not to worry. He told her not to tell. He dropped her at the front of her house. The kissing on the cheek gives rise to the first offence contrary to section 61M(1) to which the offender has pleaded guilty. ... Around the beginning of the school year in 2008 the offender was in the Guildford area in the van that she had seen him in earlier. He saw the complainant and spoke to her. She got into the van with him. She was wearing her school uniform as it was a school day. He drove the complainant to a park near Yennora where they both got out of the van. The offender touched the complainant on her back near her neck. She told him that she wanted to go home. They got back into the van. The complainant thought the offender was taking her home, however, rather than driving towards Fairfield and then Canley Vale he drove her to a location near Guildford. The offender started touching the complainant on the thigh using his left hand, rubbing her thigh from the middle to her knee area. He rubbed her thigh up towards her waistline. His hand touched her underwear that she was wearing underneath her skirt. He reached over and pulled her body towards him. He started touching her neck slowly and kissing her neck. As he was kissing her he unbuttoned her skirt. He kissed her on the lips and he kissed her towards her belly button area. The offender unbuttoned his pants and took the complainant's hand and placed it on his penis. He told her to play with it. She said that she did not know how. He said, "Come on, come on", and used his hand on the back of her head to pull her head towards his penis. She described his penis as being circumcised and that it was a tanned colour that got lighter when his penis was erect. The complainant sucked on the offender's penis for around a minute. As she was doing this he was rubbing the back of her neck. He was making sounds as the complainant was sucking his penis. This conduct involving fellatio forms the basis of the first offence on the first Form 1. The complainant did not continue as she did not like the taste of the saliva in her mouth as she was doing this. He told her to go to the back of the van. There was a seat in the back of the van. She jumped over the front seats towards the back seat. The offender sat next to the complainant. He kissed her and touched her breasts. He tried to remove her singlet. He was touching her up her skirt. The offender removed the complainant's clothing including her underpants. He said, "I only want what's best for you." He said, "Don't worry, it's only going to be about twenty minutes". This was painful. The complainant said, "t really hurt." He inserted his penis in and out of the complainant's vagina. He pulled his penis out of her vagina and ejaculated on her upper thigh. He took some tissues out of his jeans and used it to wipe the ejaculate from her thigh. He and the complainant got dressed. The conduct of the offender in inserting his penis into the complainant's vagina on this occasion gives rise to the first offence contrary to section 66C(3) to which the offender has pleaded guilty. The offender drove the complainant to her house. Before she got out of the van he reminded her not to tell anyone. After she got into the house she had a shower and was in pain. On a weekday a few days after the incident described above, the complainant was at her school. She received a phone call from the offender. He told her that he had finished work and wanted to meet her outside her school after school had finished for the day so that he could drive her home. After school finished that day the complainant met the offender and got into his van. They drove around for some time. The offender stopped the van at a park in Canley Vale. The offender then leaned over to the complainant and kissed her on the neck and lips. Whilst doing this he touched her on the stomach, bottom and breasts. The offender pulled his pants down and exposed his erect penis. He said, "Come on", suggesting that she perform fellatio on him. She placed her mouth around his penis. As she did this he said, "Come on, baby, do it faster." The complainant sucked on his penis for a period of time. When she stopped the offender ejaculated. Some of the ejaculate went into the complainant's mouth and some went onto the offender's body. The complainant wiped the ejaculate off the offender with a tissue. This conduct of fellatio gives rise to the second offence contrary to section 66C(3) to which the offender has pleaded guilty. The offender moved to the back of the van and asked the complainant to join him. She did so. He started kissing her on the neck and touching her thighs and buttocks. He took his clothes off and took the complainant's clothes off. She used her hands to make him sit down and she performed fellatio on him. She thought that this would mean that she would not have to have penile/vaginal intercourse with him. She could not stand the taste of the saliva on his penis so she stopped. The conduct of fellatio on this occasion gives rise to the first charge on the second Form 1. The offender moved towards the complainant and inserted his penis into her vagina. This caused her pain. She described the pain as "like trying to get something that is four or five centimetres into a hole that is one centimetre." He inserted his penis into and out of her vagina for a period of time before he ejaculated on her body. He wiped the ejaculate off with a tissue. He told the complainant to take care of herself. He hugged her and said, "It's all right, don't be scared." He then tickled her and made her laugh. He told her to, "be a good girl". This act of fellatio give [sic] rise to the second offence on the second Form 1. The complainant did not tell anyone about this because she was scared. She was afraid of how her family would react. The offender drove the complainant home. After this occasion the offender and the complainant remained in regular telephone contact. They would meet regularly and have penile/vagina intercourse and she would perform fellatio on him. On a weekday afternoon believed to be around February or March 2008 the offender met with the complainant after she had finished school for the day. He drove her in his van to either Guildford or Fairfield. They kissed each other in the front seat. They moved to the backseat of the van where the complainant performed fellatio on him. This act of fellatio gives rise to the second charge on the first Form 1. The offender asked her, "Do you want to try something different?". She asked what he meant. He told her to turn around and he was about to put his penis into her anus when the complainant said, "No". She understood that he was asking her for penile/anal intercourse. The offender said, "Okay then if you don't want to that's all right." The complainant and the offender then had penile/vaginal sexual intercourse in the back of the van. This conduct involving penile/vaginal intercourse gives rise to the third charge on the first Form 1. On a weekday afternoon around March 2008 the complainant was at Fairfield shopping when she received a telephone call from the offender requesting that they meet. She agreed and he told her he would pick her up from Fairfield. She unexpectedly met with her brother-in-law. This delayed her meeting the offender by about forty minutes. The offender was waiting for the complainant in his van. He called her on her mobile telephone many times. The offender picked up the complainant and drove her to a park at Fairfield where he parked the van. The offender was angry that she had kept him waiting. While they were inside the van the complainant performed fellatio on him until he ejaculated. This act of fellatio forms the basis of the first charge on the third Form 1. The offender then asked the complainant to get out of the car. She said, "I'm really sorry about what I did, but I don't like this area", and requested that they stay in the car. He encouraged her to get out of the car and they walked to an isolated area where they both sat down. The complainant was uncomfortable due to the presence of bugs and insects. They had penile/vaginal intercourse for a period of time. This act of penile/vaginal intercourse gives rise to the second charge on the third Form 1. Then the complainant performed fellatio on him until he ejaculated. She described that, "when he was about to ejaculate he forgot to tell me and then, like I had, like sperm in my mouth and it was disgusting...like one of the worst feelings ever, worst taste." The complainant spat out the ejaculate. This conduct involving fellatio gives rise to the third offence contrary to section 66C(3) to which the offender has pleaded guilty. They were at this location for around twenty minutes. After this incident as he was driving her home he told the complainant, "I just waited for you. You should feel special." When they arrived at her house the complainant kissed the offender on the cheek and he told her to take care of herself and "have fun". On a date in the April school holidays in 2008 (between 14 April and 25 April) the offender called the complainant and asked to meet her. She was home with her mother at the time. She told her mother that she was going to the shops to get some lollies. She met with the offender and he drove her in his van to an isolated location near the train station at Canley Vale. He parked the van and they moved to the back of the van where they engaged in penile/vaginal sexual intercourse. He then took her back home. The act of penile/vaginal intercourse on this occasion gives rise to the third charge on the third Form 1. Around the end of July 2008 on a school day the offender met the complainant in his van. The complainant was wearing her school uniform. He drove her to a quiet cul-de-sac in the Fairfield area. They had been to this location on previous occasions when they had sexual intercourse. The offender parked the van. He and the complainant talked and kissed each other for a short time before they moved to the backseat of the van. She told him that she did not want to do anything. He asked her why that was the case. She said, "I just don't feel like it." The offender undid his pants and touched the complainant on the breasts. He also used his mouth to suck her breasts. The complainant performed fellatio on him. He caressed her body including her breasts while she was doing this. The act of fellatio on this occasion gives rise to the first charge on the fourth Form 1. The offender put his hand into her pants and touched her vagina for a period of about five minute. Whilst he was doing this he inserted three fingers into her vagina and digitally penetrated her vagina. This act of digital penetration gives rise to the second charge on the fourth Form 1. The complainant was wearing a skirt. She opened her legs and the offender put his penis in her vagina. They had penile/vaginal intercourse for around two minutes. After this time the offender withdrew his penis from her vagina and ejaculated onto her thigh. This conduct involving penile/vaginal intercourse gives rise to the fourth offence contrary to section 66C(3) to which the offender has pleaded guilty. The offender held the complainant around the waist and said, "Hold on...I'll just be very gently [sic]." He manipulated her into a position where she was kneeling on the seat in the rear of the van and bending over and then he inserted her penis into her anus for around two minutes. The complainant was surprised that the experience was not as painful as she had expected. She did not however enjoy it. He removed his penis from her anus. He kissed her and gave her a hug before they both got dressed and he drove her to her home. The act of anal intercourse on this occasion gives rise to the fifth offence contrary to section 66C(3) to which the offender has pleaded guilty. On a Saturday around July or August 2008 the complainant was at home and she had a telephone conversation with the offender. He suggested that they meet. He picked her up from outside her home in his van and drove her to an empty building site on Bekenham Street, Canley Vale. The complainant and the offender moved to the back of the van where they engaged in penile/vaginal sexual intercourse. This act of penal/vaginal sexual intercourse gives rise to the sixth offence contrary to section 66C(3) to which the offender has pleaded guilty. The complainant then performed fellatio on him. This act of fellatio gives rise to the third charge on the fourth Form 1. In the afternoon on a date between February and August 2008 the complainant was at home preparing to go for a run when she received a phone call from the offender. He asked her to meet. She arranged to meet him at a park near her home. The offender came to pick her up in his van and drove her to another park nearby. He parked the van and both he and the complainant got out of the can and went for a walk in the park. When in an isolated area of the park the offender took his jumper off and placed it on the ground. They sat on the jumper and kissed for a short time before having penile/vaginal sexual intercourse. The offender withdrew his penis from the complainant's vagina and ejaculated onto the ground. This act of penile/vaginal intercourse gives rise to the seventh offence contrary to section 66C(3) to which the offender has pleaded guilty. They returned to the van and the offender drove her home. In the afternoon on a date between February and August 2008 the complainant was alone at home. She and the offender had a telephone conversation and the offender suggested that they meet. She told him that she was at home alone and told the accused that he could come to her house. He said, "No, we might get caught", and arranged instead to pick her up from outside her home. He picked her up in his vehicle and drove her to an area in Canley Vale where they had penile/vaginal intercourse in the back of the van before he drove her back home. The act of penile/vaginal intercourse on this occasion gives rise to the eighth offence contrary to section 66C(3) to which the offender has pleaded guilty. On 11 August 2008 the complainant and the offender were together in the back of the van in an isolated car park near a boat ramp at Lansvale. In the back of the van they kissed each other. The offender tried to open her pants and he touched her breasts. The kissing and touching on this occasion gives rise to the tenth offence, which is the second offence contrary to section 61M(1) to which the offender has pleaded guilty." 16The sentencing judge found that each of the s 66C(3) Crimes Act offences involving fellatio fell "just below the middle range of objective seriousness" whereas each of the s 66(3) offences involving penile/vaginal intercourse fell into "the middle range of objective seriousness" and the offence involving anal intercourse (count 6) fell "just above the middle range of objective seriousness" for a s 66(3) offence. His Honour determined that the objective seriousness of count 1, being the kissing on the cheek, fell into the very bottom of the range of objective seriousness of aggravated indecent assault contrary to s 61M(1) Crimes Act . The kissing and the touching of the complainant's breasts (count 10) was found by his Honour to fall "towards the lower end of the range of objective seriousness for such offences." 17In sentencing the applicant, his Honour noted that general deterrence was of particular importance as was specific deterrence. He remarked that "a young girl such as the complainant is entitled to considerable protection from men who are substantially older, such as the offender." 18A victim impact statement was read in court during the sentencing proceedings in which the complainant stated, inter alia , that what the applicant did to her "most of all damaged [her] family life. In the Congolese culture it is a disgrace for a woman to lose her virginity before marriage. Such a woman is treated as dirt and rejected by everyone: her family and the community." 19His Honour observed that it was apparent that the complainant had become isolated and shunned by her family and her victim impact statement confirmed the traumatic and adverse psychological impact that these offences had and were continuing to have upon her. 20A discount of twenty-five per cent for the utilitarian value of the pleas of guilty which had been entered in the Local Court was allowed by the sentencing judge.

Subjective Circumstances 21The applicant was born in July 1975 and is 35 years old. He does not have a prior criminal history. Saleh Mokhaiber, the applicant's brother gave evidence during the sentencing proceedings. The sentencing judge summarised the applicant's subjective case as follows: "The offender is thirty-four years of age. He has no prior criminal history. Accordingly he will receive the leniency to which a person of prior good character and no prior convictions is entitled. The subjective circumstances of the offender, all of which have been taken into account, are contained in evidence given by the offender's brother. Briefly, as stated, the offender is thirty-four years of age. He has a total of twelve brothers and five sisters. Six brothers live in Australia. He left Lebanon and came to Australia in 2001. Six months before he came to Australia he married his present wife in Lebanon. They now have three children aged three, five and seven. While in Lebanon the offender had worked as a farmer helping his father on the family farm from the age of ten. After arriving in Australia he became a tiler and worked with his older brother in his older brother's tiling business. On his arrival in Australia the offender spoke no English, however, he can now speak some limited English. The offender's wife who looks after the children does not work. She presently receives Social Security benefits and the offender's brothers also support her when required. It is apparent that the offender was the sole wage earner for his wife and children, who lived at Guildford. His wife apparently has a thyroid problem for which she has received some treatment. The offender's extended family in Australia is close and they are supportive of each other. When released the offender hopes to return to work as a tiler with his older brother." 22His Honour said that on the "very limited subjective material" before him, he was unable to reach a conclusion about the applicant's prospects of rehabilitation or the unlikelihood of him re-offending. Special circumstances were found so as to justify a variation in the statutory ratio referred to in s 44(2) Crimes (Sentencing Procedure) Act 1999 being the applicant's first custodial sentences, the benefit to him of an extended period of supervision to assist his rehabilitation and the partial accumulation of sentence.

The Fresh Evidence 23Dr Procopis reports that no treatment is available for metachromatic leukodystrophy. Sara's condition has progressed quite considerably so that she is no longer able to walk or talk and requires total care. She needs to be fed and has some difficulty with fluids although solid foods are not causing any problem at present. Dr Procopis opined that Sara's prognosis is one of progressive deterioration and it is likely that as time goes on she will need to be tube-fed. 24In an affidavit sworn 20 September 2010, Nada Mokhaiber, the applicant's wife states that she is Sara's fulltime carer who is responsible for every element of her daily life. She feeds Sara, dresses her, takes care of her personal hygiene and takes her to medical appointments. Sara is still in nappies and wakes her mother two to three times a night. Mrs Mokhaiber is exhausted and depressed caring for Sara and feels overwhelmed and tired psychologically. She feels that as she has to look after Sara alone her daughters Yasmin, who is eight years old, and Nisren, who is five years old, are being deprived of a mother. Mrs Mokhaiber states that the applicant could help her emotionally and financially. Although the applicant has five brothers in Sydney, she states that they all have their own families and work and are unable to help her. 25In a report dated 30 July 2010, Tim Watson-Munro, a consultant forensic psychologist, reports that Mrs Mokhaiber presents "as a cooperative though clearly distressed woman whose psychological state has been significantly aggravated by her husband's incarceration." In addition to the stress referable to her husband's imprisonment, Mr Watson-Munro considered that Mrs Mokhaiber had been dramatically affected by Sara's condition. The psychologist diagnosed a Major Depression with Adjustment Disorder. He opined that Mrs Mokhaiber requires professional assistance for her condition. As her daughter's condition deteriorates further, Mr Watson-Munro reports that Mrs Mokhaiber's sense of despair will escalate and "in the absence of her husband to support her on a daily basis and the lack of a structured family dynamic in Sydney, in the absence of treatment her condition may well reach a point where she could require hospitalisation." 26The applicant in an affidavit sworn 17 September 2010 states that for the first three months after being informed of Sara's diagnosis he "hardly ate, only enough to stay alive", now barely eats and has lost eight kilograms. He tries to talk to Sara six or seven times a day and waits in the telephone queue up to the last minute. When he talks to his wife on the telephone, he finds that she is very stressed and depressed. His wife is doing her best but is not coping and he wishes that he could be with her to help. He asks this Court to give him the chance to support his wife. 27Mr Watson-Munro in a report dated 30 July 2010 reports that the applicant, though highly anxious, was well orientated with no indications of psychosis or gross psychiatric disturbance. The psychologist reports that the applicant expressed strong feelings of despair and guilt and was socially isolated in gaol. The applicant's ultimate fear relates to Sara and the fact that she may die whilst he is still in custody. 28There is one aspect of the evidence of Mrs Mokhaiber which requires comment. During the proceedings on sentence, Saleh Mokhaiber told the sentencing judge that he and his brothers were close and supportive of each other and his family had helped the applicant's wife in relation to the raising of the children. 29He testified that when Mrs Mokhaiber needed "to go to a doctor or something we all be there for her, whatever she need" (AB95). This evidence stands in contrast to Mrs Mokhaiber's evidence in her affidavit that the applicant's brothers were not able to help her. Mrs Mokhaiber was not required for cross-examination and it seems, notwithstanding Saleh Mokhaiber's testimony in the District Court, the applicant's brothers have not supported his wife.

Intervention? 30It is settled principle that hardship to members of an offender's family is generally irrelevant as it can be assumed that imprisonment will cause hardship to others in the offender's family. Hardship to family members caused by a prison term can only be taken into account in "highly exceptional circumstances": R v Edwards (1996) 90 A Crim R 510 at 516-517 per Gleeson CJ. It seems to me in the present case that the applicant's wife who is sadly burdened with Sara's terminal condition and the care of two other young children will suffer overwhelming hardship because of the applicant's imprisonment such that the circumstances may be regarded as highly exceptional. 31I also give modest weight to the applicant's distress at being unable to assist his wife with the care of Sara and his daughters during this difficult time as it will make the experience of his imprisonment more onerous: Markovic v R; Pantelic v R [2010] VSCA 105 at [20]. 32These considerations by themselves, however, cannot determine the sentences to be imposed upon the applicant. The applicant's offending was indeed serious. He preyed salaciously upon a 14-year-old schoolgirl and persuaded her to enter into a sexual relationship with him. The sentencing judge correctly identified general and specific deterrence as being important factors in his sentencing task. This Court has emphasised the community's great concern about the molestation of children by adults to which his Honour referred when he cited the observations of Lee J in R v Dent (NSW Court of Criminal Appeal, 14 March 1991, unreported). 33Neither the applicant nor the Crown suggests that the total effective sentence was inappropriate on the material available to the sentencing judge. I am persuaded, however, that this is a highly exceptional case where the imposition of a sentence less than would otherwise be appropriate is justified. I propose a reduction in the total effective sentence to 5 years 6 months. A non-parole period of 3 years 6 months is, in my opinion, the minimum that could be imposed to reflect the objective seriousness of the offences.

Orders 34Accordingly I propose the following orders: 1.Leave to appeal granted. 2.Appeal against sentence allowed. 3.Quash the sentence imposed for count 5. 4.In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 2 years commencing 18 March 2010 and expiring 17 March 2012 with a balance of term of 1 year expiring 17 March 2013. 5.Quash the sentence imposed for count 6. 6.In lieu thereof, sentence the applicant to imprisonment with a non-parole period of 2 years commencing 18 March 2010 and expiring 17 March 2012 with a balance of term of 2 years expiring 17 March 2014. 7.In all other respects confirm the sentences imposed by the sentencing judge. The applicant is eligible to be released on parole on 17 March 2012. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 February 2011