Australia, Nov. 30 -- New South Wales Land and Environment Court issued text of the following judgement on Nov. 29:

1. Yassar Kheder ("the Offender") is to be sentenced for the following offence, to which he pleaded guilty at the Downing Centre District Court on 26 September 2024:

Table omitted can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19374a8669f8b44962ccc7ac)

2. Pursuant to s 16BA of the CrimesAct1914 (Cth) (Crimes Act) the following further offence is to be taken into account:

Table omitted can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19374a8669f8b44962ccc7ac)

3. The Offender was arrested and granted bail on 11 November 2022. Any sentence of full-time custody will be backdated by one day.

General sentencing principles

4. The Court must impose a sentence of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Crimes Act 1914 (Cth) ("Crimes Act"). In addition to any other matters, the Court must take into account those matters listed in s 16A(2) of the Crimes Act that are relevant and known to the Court.

5. Sentencing principles in relation to child abuse material offences The offence carries a maximum penalty of 15 years' imprisonment, which provides an unequivocal indication that the offending is viewed by Parliament as being of the utmost seriousness: Elias v R (2013) 248 CLR 483 at [127].

6. The objective seriousness of offending involving the accessing of child abuse material is ordinarily determined by reference to the following factors:

1) The nature and content of the material, the number of children, the age of the children, the gravity of the sexual activity depicted, and the number of items or images;

2) Whether the material is for the purpose of sale or further distribution and/or profit; and

3) The length of time over which the material was accessed.

7. Whilst volume of material is an indicator, it has been held that the type of material and degree of its depravity is the primary focus, and quantity is secondary: see DPP v Latham [2009] TASSC 101 at [35].

Sentencing factors relevant to this matter

The s 16BA Crimes Act matter

8. The Offender has asked that the Court take into account an offence under s 474.22A(1) of the Criminal Code (Cth), being possession of child abuse material.

9. This means that, while the primary focus remains on the offence for sentence, it is proper for the Court to have regard to the s 16BA matter and give greater weight to the need for specific deterrence and also the community's entitlement to exact retribution.

The nature and circumstances of the offences: s 16A(2)(a) Crimes Act

The facts

10. 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.

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

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19374a8669f8b44962ccc7ac)

Disclaimer: Curated by HT Syndication.