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District Court 11 May 2021

R v Ghulaim

[2021] NSWDC 310

Sexual offences
CRIME SENTENCE POSSESSING CHILD ABUSE MATERIAL.

Citation: R v Ghulaim [2021] NSWDC 310
Court: District Court of New South Wales
Date: 11 May 2021
Judge: Colefax SC DCJ

Background

The offender, a young man who was 19 to 20 years old at the time of the offending, appeared for sentencing on two charges. The first was accessing child pornography material using a carriage service, contrary to Commonwealth law. The second was possessing child abuse material under New South Wales law.

Police attended the offender's Liverpool home in March 2019 acting on information from the Australian Federal Police. The offender attended Liverpool Police Station voluntarily and surrendered three mobile phones. A forensic examination of his Samsung phone revealed the offending material.

The accessed material comprised 23 images and videos accessed between November 2017 and March 2019. The possession offence related to 256 images and videos found on the device. The material included depictions of very young children subjected to serious sexual abuse, some of which the court described as particularly depraved.

  • What was the objective seriousness of each offence, assessed for an offence of its kind?
  • Whether the offender accessed and possessed the material for sexual gratification, and what the Crown was required to establish in that regard.
  • Whether the offender's exculpatory explanation (that he was engaged in a vigilante exercise to report the material) was accepted on the balance of probabilities.
  • How the offender's significant subjective circumstances, including his age, traumatic childhood, history of sexual abuse, mental health issues, and drug use, should affect the sentence.
  • Whether a full-time custodial sentence was required, and what structure that sentence should take.
  • Whether special circumstances existed to vary the standard ratio of head sentence to non-parole period.
  • What discount applied for the utilitarian value of a guilty plea.

Decision

Objective seriousness: Colefax SC DCJ assessed both offences as falling very slightly below the middle of the range for offences of their kind. Although the volume of material was not as large as in some comparable cases, the nature of it was particularly depraved.

Subjective circumstances: The court rejected the Crown's contention, beyond reasonable doubt, that the offender had a sexual interest in children. However, the court was also not satisfied on the balance of probabilities that the offender's claimed vigilante explanation was genuine, noting there was no evidence he ever reported any material to any authority. The sentencing assessment therefore proceeded on the basis of access and possession of the material without any exculpatory purpose.

Background and moral culpability: The offender's personal history significantly informed the sentencing exercise. He was born in Iraq, experienced persecution as a religious minority, fled to Syria and then Australia, and suffered sustained sexual abuse by a family member from approximately age 7 for around four years. He also experienced physical abuse and severe bullying. The court found these accumulated traumas caused the anxiety and depression he later experienced, and applied the principle from Bugmy v The Queen that a dysfunctional childhood attracts reduced moral culpability. His history of illicit drug use from age 14, and his diagnosis with PTSD, were also noted.

Sentence structure: The court found the threshold for full-time imprisonment was crossed for both offences. A 25 per cent discount was applied to each sentence for the utilitarian value of a guilty plea, treating the offender as though he had pleaded at the first available opportunity. Special circumstances were found, based on his youth, the fact this was his first period of imprisonment, and the particular difficulty his mental health issues would cause in custody. For the State offence (Count 2), the offender received 18 months imprisonment, with a non-parole period of 9 months commencing 11 May 2021. For the Commonwealth offence (Count 1), the offender also received 18 months imprisonment, commencing 11 August 2021, with execution partially suspended after 9 months served, subject to a recognisance and conditions including supervision by Corrective Services.

Orders Made

  • Count 2 (State offence): Term of imprisonment of 1 year 6 months, with a non-parole period of 9 months from 11 May 2021, expiring 10 February 2022; balance of term of 9 months from 11 February 2022, expiring 10 November 2022.
  • Count 1 (Commonwealth offence): Term of imprisonment of 1 year 6 months commencing 11 August 2021, partially suspended after 9 months (from 10 May 2022) pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), subject to a self-recognisance of $500 for 9 months.
  • Conditions of recognisance: good behaviour; supervision by New South Wales Corrective Services; reporting to Community Corrections Campbelltown no later than 4:00pm the day after release.
  • Psychological reports of Ms North and Ms Swaffield ordered to accompany the sentencing warrants.
  • Forfeiture order made by consent in accordance with signed short minutes of order.

Key Takeaways

  • The District Court assessed both child pornography offences as very slightly below the mid-range of objective seriousness, with the quality of the material, not just its volume, being central to that assessment.
  • Where the Crown seeks to establish that an offender accessed or possessed child abuse material for sexual gratification, it must prove that beyond reasonable doubt. Failure to do so does not mean an exculpatory explanation is accepted; it may simply mean sentencing proceeds on the bare facts of access and possession.
  • An offender's unverified explanation for possessing child abuse material (here, a claimed vigilante purpose) will not be accepted on the balance of probabilities without corroborating evidence.
  • Under the principle in Bugmy v The Queen, a severely dysfunctional childhood, including prolonged sexual abuse and displacement from conflict zones, attracts reduced moral culpability and must be taken into account at sentencing.
  • Special circumstances justifying a variation to the standard non-parole period ratio can be established by a combination of youth, a first custodial sentence, and mental health vulnerabilities that make imprisonment more onerous.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 474.19(1)(a)(i)
- Crimes Act 1900 (NSW), s 91H(2)
- Crimes Act 1914 (Cth), s 20(1)(b)

Cases:
- Bugmy v The Queen (cited for the principle that a dysfunctional childhood attracts reduced moral culpability to be considered at sentencing)