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District Court 29 November 2024

R v Kheder

[2024] NSWDC 571

Sexual offences

Citation: R v Kheder [2024] NSWDC 571
Court: District Court of New South Wales
Date: 29 November 2024
Judge: Newlinds SC DCJ

Background

The offender pleaded guilty to one count of using a carriage service to access child abuse material, contrary to s 474.22(1) of the Criminal Code (Cth), carrying a maximum penalty of 15 years' imprisonment. The offending occurred between July 2021 and October 2022 at Wiley Park, NSW, during which the offender used a peer-to-peer file-sharing program called "e-mule" to download and view 73 images of child abuse material. A further 17 deleted videos, also accepted to be child abuse material, were found on his hard drive, though their contents were unknown.

A second offence of possessing or controlling child abuse material obtained via a carriage service was brought before the Court under s 16BA of the Crimes Act 1914 (Cth) to be taken into account on sentencing. That possession offence related to the same 73 images, meaning there was significant factual overlap between the two matters.

The offender had self-reported to police before a search warrant was executed, was arrested and granted bail in November 2022, and pleaded guilty in September 2024. The sentencing proceedings centred on the appropriate level of punishment and, critically, whether the circumstances justified releasing the offender immediately on a Recognizance Release Order rather than imposing full-time custody.

  • What was the appropriate assessment of the objective seriousness of the primary offence, having regard to the nature, volume, and depravity of the material accessed?
  • What weight should be given to the s 16BA schedule offence in determining the sentence?
  • What discount, if any, applied to the guilty plea entered at a late stage in proceedings under federal sentencing principles (noting that the NSW mandatory discount scheme does not apply to federal offences)?
  • Whether "exceptional circumstances" existed under s 20(1)(b) of the Crimes Act 1914 (Cth) to justify releasing the offender immediately on a Recognizance Release Order rather than imposing immediate full-time custody.

Decision

Objective seriousness. Newlinds SC DCJ declined to adopt the label-based framework (such as "mid-range" or "low-end") favoured by both parties, describing such labels as "notoriously unhelpful." The Court acknowledged that the volume of images was relatively small but found that some of the material depicted acts of the most depraved and serious kind, including penetration of young children by adults. The downloading and viewing of child abuse material was characterised as self-evidently harmful to real children and a significant departure from acceptable conduct.

Deterrence and culpability. General deterrence was identified as carrying particular weight for offences of this type. However, the Court found that the offender's moral culpability was low, having regard to significant mental health difficulties that were themselves connected to childhood trauma and disrupted attachments. The Court accepted that the offender was not well-suited to being used as an example for general deterrence, and that his prospects of rehabilitation were high with a correspondingly low risk of reoffending, provided he continued his current treatment.

Guilty plea. The NSW mandatory sentencing discount scheme does not apply to federal offenders. The Court treated the guilty plea as carrying both utilitarian value and some subjective value as evidence of remorse, particularly in light of the offender's prior self-reporting to police and admissions made to investigators. Although the plea was entered late, the Court accepted this was explicable by the offender's mental health conditions. A discount of 10% was applied.

Exceptional circumstances and the Recognizance Release Order. Under s 20(1)(b) of the Crimes Act 1914 (Cth), a court may release a federal offender on a recognizance release order (broadly equivalent to a suspended sentence) only where "exceptional circumstances" exist. The Court was satisfied that such circumstances were present, drawing on the combination of the offender's mental health conditions, his low moral culpability, his engagement with rehabilitation, his self-reporting conduct, his compliance with strict bail conditions over two years, and his strong prospects of not reoffending. The Court imposed a head sentence of three years' imprisonment but ordered immediate release on a Recognizance Release Order for the same three-year period.

Orders Made

  • The offender was convicted.
  • A sentence of imprisonment of three years was imposed, commencing 28 November 2024 and expiring 27 November 2027, after a 10% discount for the guilty plea (with the s 16BA schedule matter taken into account).
  • The offender was released forthwith on a Recognizance Release Order for three years commencing 29 November 2024, upon giving security of $5,000, on conditions including:
  • To be of good behaviour.
  • To report to Bankstown Community Corrections within seven days and be subject to probation officer supervision.
  • To obey all reasonable directions of the probation officer.
  • Not to travel overseas or interstate without written permission from the probation officer.
  • To undertake treatment or rehabilitation programs as directed by the probation officer.
  • To continue under the care of his treating psychologist and to continue with the recommended treatment plan.
  • The following items were forfeited to the Commonwealth under s 23ZD of the Crimes Act 1914 (Cth):
  • One Toshiba laptop.
  • One Toshiba hard drive.

Key Takeaways

  • The District Court confirmed that, for federal child abuse material offences, general deterrence carries significant weight at sentencing, reflecting the community's condemnation of the sexual exploitation of children.
  • A court sentencing a federal offender is not bound by NSW's mandatory guilty plea discount scheme; instead, a plea is assessed for both its utilitarian value and its subjective value as evidence of genuine contrition, with the strength of the Crown case a relevant consideration.
  • Under s 20(1)(b) of the Crimes Act 1914 (Cth), releasing a federal offender on a Recognizance Release Order requires a finding of "exceptional circumstances." Here, the combination of mental health conditions linked to childhood trauma, low moral culpability, self-reporting to police, two years of compliant bail, and strong rehabilitation prospects collectively satisfied that threshold.
  • Sentencing courts assessing child abuse material offences are directed primarily to the nature and depravity of the content rather than the volume of material, though quantity remains a relevant secondary consideration.
  • The s 16BA mechanism, by which a related offence is taken into account without a separate conviction, has the effect of increasing the weight given to specific deterrence and the community's interest in retribution, even where there is significant factual overlap with the primary offence.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth): ss 16A, 16BA, 19AB, 19AC, 20, 23ZD
- Criminal Code (Cth): ss 474.22(1), 474.22A(1)

Cases
- DPP v Latham [2009] TASSC 101
- Elias v R (2013) 248 CLR 483
- Hili v The Queen (2010) 242 CLR 520
- R v Bredal [2024] NSWCCA 75
- R v Clarkson (2011) 32 VR 361
- R v Hutchinson [2018] NSWCCA 152
- R v Kelly (Edward) [1999] 2 All ER 13
- R v Skinner [2016] SACFC 106
- RE Crowder v The King [2024] VSCA 211
- The Queen v Pham (2015) 256 CLR 550