Citation: R v Hakem [2024] NSWDC 473
Court: District Court of New South Wales
Date: 23 September 2024
Judge(s): Colefax SC DCJ
Background
The offender was sentenced for two principal offences of sexual intercourse with a child under 10 years of age, contrary to s 66A(1) of the Crimes Act 1900 (NSW). Each offence carries a maximum penalty of life imprisonment and a standard non-parole period of 15 years. Two additional offences (one of intentionally inciting a child to sexually touch, and one of intentionally sexually touching a child) were taken into account on Form 1 documents.
The victim was the daughter of family friends. The offending occurred between June 2019 and February 2023, when the offender was aged 38 to 42 and the victim was aged 4 to 7. The offences involved the offender coercing the young child to hold his penis, performing cunnilingus on the child on two separate occasions, and kissing the child on her lips and cheeks. On the final occasion, the offender also took photographs.
The victim disclosed the offending to her mother following the last incident in February 2023. Police were contacted and the offender was arrested on 1 March 2023. He had been in continuous custody since that date.
Legal Issues
- What was the objective seriousness of each principal offence?
- What weight should be given to the offender's subjective circumstances, including his lack of prior criminal history, his own childhood sexual abuse, and his claimed remorse?
- What discount was appropriate for the early guilty pleas?
- Whether special circumstances existed to warrant a longer parole period relative to the non-parole period
- What aggregate sentence appropriately reflected totality?
Decision
Colefax SC DCJ assessed the objective seriousness of each principal offence as slightly below the midrange for offences of this kind. His Honour found that each offence was significantly aggravated by the breach of trust involved, given the offender's position as a family friend entrusted with the care of the child. A victim impact statement from the child's mother was read in open court, though the Court found the impact on the child, while devastating, was not beyond what would ordinarily be expected from offending of this nature and therefore did not constitute an additional aggravating factor.
Turning to the offender's subjective case, his Honour noted the offender had no prior criminal history but gave this reduced weight because general deterrence is the primary sentencing consideration in child sexual offence cases. The Court acknowledged the offender had himself been sexually abused at age 11, but observed that the expert evidence gave little attention to this matter's impact. The offender was found to have limited insight into his offending: he deflected blame during the sentencing assessment interview and denied any sexual attraction to children despite conduct that plainly demonstrated otherwise.
Critically, the Court was not persuaded on the balance of probabilities that the offender was genuinely remorseful. His prospects of rehabilitation were assessed as "at best, guarded." The Court drew the inference that the offender had a sexual interest in children generally.
A 25 per cent discount was applied for the early guilty pleas. The indicative sentence for each principal offence (before the plea discount but taking into account the respective Form 1 matters) was 7 years. After the discount, each indicative sentence was 5 years and 3 months with an indicative non-parole period of 3 years and 11 months. Applying the principle of totality, an aggregate sentence was imposed.
Orders Made
- Aggregate sentence of 7 years imprisonment, commencing 1 March 2023
- Non-parole period of 5 years and 3 months, from 1 March 2023, expiring 31 May 2028
- Balance of term of 1 year and 9 months, from 1 June 2028, expiring 28 February 2030
- Finding of special circumstances declined
Key Takeaways
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The District Court acknowledged the offender's absence of prior convictions but held that this factor carries "much less relevance" in child sexual offence cases, where general deterrence is the paramount sentencing consideration.
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A finding of genuine remorse was rejected because the offender deflected blame during the sentencing assessment and denied any sexual interest in children, which the Court found fatally undermined his claims of contrition.
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Significant deficiencies in the expert report tendered on the offender's behalf, particularly its failure to address why the offending occurred, allowed the Court to draw an adverse inference that the offender had a general sexual interest in children.
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Under established sentencing principles regarding abuse of trust, the offender's position as a family friend entrusted with the care of the child was treated as a significant aggravating factor.
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No finding of special circumstances was made despite the offender having never previously been in custody, as there was no evidence that a longer parole period would benefit his rehabilitation.
Legislation and Cases Referenced
- Crimes Act 1900 (NSW), s 66A(1)
No other cases were expressly cited in the decision text, although the Court referenced remarks by the President of the Royal Commission into Institutional Responses to Child Sexual Abuse regarding the lifelong consequences of child sexual abuse.