R v Kheder

R v Kheder - [2024] NSWDC 571 - NSWDC 2024 case summary — Zoe

[8]

The facts

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

[11]

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

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

[12]

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

The Offender is aged 41 and was between 37 and 38 at the time of the offences.
He has no recorded criminal history.
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.
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.'
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".
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.
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.

[13]

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

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.
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'.
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.
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.
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.
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.
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.

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Cases Cited (8)