IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT Melbourne
CRIMINAL DIVISION
CR-21-02694

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
WAHEED KHALEEL		

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JUDGE:	HER HONOUR JUDGE WILMOTH 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	26 May 2022	
DATE OF SENTENCE:	6 June 2022	
CASE MAY BE CITED AS:	DPP v Khaleel	
MEDIUM NEUTRAL CITATION:	[2022] VCC 845		

REASONS FOR SENTENCE

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Subject: 	 Criminal Law – sentence

Catchwords: pleaded guilty to one charge sexual penetration of child under 16 ( rolled up charge); one charge  sexual activity in the presence of a child under 16 -  standard sentence provision – this offender 43 years old – co-offender  20 years old (separate indictment CR-21-01320) isolated and opportunistic offending by this accused against two  complainants -  alcohol and “weed” supplied to complainants – VIS – one complainant now suffers from PTSD – left school -  very serious offending -  traumatic, brutal life in Iraq  - refugee – PTSD – general deterrence 

Sentence :  3 years  6 months imprisonment with non parole period of 2 years 4 months

 Pseudonyms used  for co-offender and complainants
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Ms J. Piggott	OPP	
			
For the Accused	Mr T Sawyer (Plea) 
Ms S. Gaunt (Sentence)	SLKQ Lawyers	

HER HONOUR:

1	Waheed Khaleel, you have pleaded guilty to one charge of sexual penetration of a child under 16 and one charge of sexual activity in the presence of a child under 16.  The offending took place on one occasion on the night of 
21 January 2021 and the early hours of the following morning.  Two incidents make up the rolled-up charge forming Charge 1 on the indictment.  One of those incidents was in the presence of another child which is Charge 2.  The complainant, Alyssa Lennon, was a 14-year old girl, who, with her friend, Amy Fenner, aged 13, was taken to your home by Martin Amari, a 20-year old man they both knew.  This was at about 8 pm on the evening of 20 January 2021.  You, a 43-year old man, were living in a share house and the girls were taken to your bedroom, where they were introduced to you.
2	You and Amari gave the girls whiskey and what is described in the prosecution summary as “weed”, which the four of you smoked using a bong.  You and Amari talked to each other in Arabic and did not involve the two complainants in any conversation.  Ms Fenner began to feel unwell as a result of smoking the drug.  She lay down on the floor and Ms Lennon sat on the bed.  Amari then had penis/vagina sex with Ms Lennon.  While he did this, you penetrated her mouth with your penis so she was being penetrated by two men at the same time.  You ejaculated in her mouth.  This is part of Charge 1 which is a rolled-up charge.
3	This activity was in the presence of Ms Fenner, who witnessed it and that is Charge 2.  She used her phone to contact her brother asking him to pick her up as she felt uncomfortable and wanted to leave.  Ms Lennon put on her clothes and walked with Ms Fenner to the front door.  Ms Fenner left and met her brother a short distance away.  Ms Lennon returned to your bedroom and had another bong.  She then fell asleep on your bed, wearing only underwear and a jumper.  When she awoke later in the morning, you were having penis/vagina sex with her.  She pushed you away, collected her clothing and left.  She went to the train station and caught a train to a station near her home where she was collected by her father.  
4	Sometime in January 2021, Ms Fenner disclosed to her mother she had had sex with Amari and that you had had sex with Ms Lennon.  On 4 February, Ms Fenner's mother contacted the police about her daughter's disclosure.  Ms Lennon also made contact with the police the same day.  Ms Fenner took part in a VARE and described you, your house and your bedroom.  Ms Lennon made her VARE a few days later and gave very similar descriptions.  Police searched your bedroom a few days after that pursuant to a search warrant.  You were interviewed and denied the allegations.  You were remanded in custody where you have remained.
5	Ms Lennon provided a victim impact statement in which she described the very severe impact your offending has had on her.  She is suffering from post‑traumatic stress disorder and anxiety.  She has given up going to school and no longer sees her friends.  She and her family moved house as she feared that Amari would find her.  She cannot be alone and her mother has had to stop working to be with her.  At the time of writing last September, she was waiting for a place for treatment at the Gatehouse Clinic and she had a mental health worker through the youth service known as Orygen.
6	This was extremely serious offending.  You were many years older than the girls with an age difference of some 30 years.  Although the offending occurred over a short period of one night, in effect, and was isolated and opportunistic, there are a number of aggravating features.  You callously exploited two vulnerable teenage girls in a location that was unknown to them, giving them alcohol and drugs to render them even more vulnerable.  You then sexually abused Ms Lennon in a crude and self-entitled way with no regard for her wishes or welfare.  You and the other offender treated the girls in a despicable way by not even including them in any conversation or communication, but instead, treating them as objects.  I treat those matters as aggravating factors.
7	The second incident, part of Charge 1, occurred when you sexually penetrated Ms Lennon when she was asleep and that is a serious aggravating factor, as the learned prosecutor described it.  As I observed earlier, the offending had a very severe effect on Ms Lennon.  This was still the case as of September last year.  Even if she has experienced some improvement, it is less than a year ago and the description of her condition is a sufficient basis for presuming that much of her suffering is continuing.
8	The law provides for the presumption that children are harmed by sexual abuse and that applies in this case.  The maximum sentences for these charges are 15 years imprisonment for Charge 1 and 10 years for Charge 2.  The standard sentencing provisions of the Crimes Act apply to both charges and I must take that into account as a guide.  The standard sentences are six years and four years respectively.  I turn now to your background and circumstances. 
9	In September 2021, you were assessed by the forensic psychologist, Ms Carla Ferrari, who took a detailed personal history from you.  That is the source of much of what follows.  You were born in Kuwait and you have reported that you had a good upbringing in your family.  But because of the war there, the family had to relocate to Iraq in 1991 when you were aged 14 and you had no schooling after that.  Your life in Iraq was spent in poverty due to sanctions imposed on citizens during the regime of Saddam Hussein, and you witnessed daily violence, including killings, explosions, bombings and insurgency.
10	In 1995, you were conscripted into the Iraqi Army for three-year military duty where you served as a soldier.  You then became a police officer from 1998 to 2010.  Your mother died from natural causes in 2001 when she was 42.  In 2010, your father was murdered by ISIS members.  He was decapitated in your presence.  At that time, your government position, working at the US Embassy, in addition to or as part of your police work meant that you were under threat from ISIS.  Two of your sisters were displaced by ISIS and put in tents to live.  Fearing for your family, you left for Turkey and you lived there for two years before being granted a refugee visa to come to Australia.
11	You arrived here in 2012 and spent a year learning English before finding a job in a cheese factory.  Your most recent work was as a cleaner of aircraft at the airport, a job to which you expect to return when you are released from prison.  You married in Iraq in 2000 and you have two children, a son aged 11 and a daughter aged 17.  Your marriage ended about five years ago and after a period of emotional distress, you developed an amicable relationship with your ex-wife and so were able to see the children regularly.  Since being imprisoned, you have maintained phone contact with them.  However, as at the time of Ms Ferrari's report, your son did not know you were in prison and had been told you were working interstate.
12	I turn now to Ms Ferrari's findings in her report dated 17 September 2021.  The report was requested to determine whether you were fit to stand trial and 
Ms Ferrari's opinion was that you were fit for trial.  She diagnosed untreated post-traumatic stress disorder following exposure to war, your experiences in the army and police force, the brutal murder of your father and the threats to yourself and your family.  On arrival in Australia, you experienced a decline in your employment status which has not changed.  You have not had any treatment for post-traumatic stress disorder.  
13	Ms Ferrari stated at paragraph 68 of her report and I quote:
'Research has repeatedly identified PTSD as a core manifestation of trauma and undoubtedly the experience of Mr Khaleel throughout his life has contributed to self-regulation issues, a key symptom of PTSD and anxiety.  Symptoms can fluctuate in intensity and frequency,  however, are particularly prone to exacerbation under situations of extreme stress.  Emotional dysregulation can impair problem-solving and healthy information processing and can lead to an increase in negative emotions and a decrease in pro-social responses, as has been the case with Mr Khaleel'.
14	Ms Ferrari noted significant symptoms of depression and anxiety and diagnosed a likely Adjustment Disorder with Mixed Anxiety and Depressed mood, stating that this was in response to the allegations.  Her opinion was that without treatment, which she doubts will be made available in prison, you are at risk of your symptoms continuing to worsen and developing a clinical disorder such as major depression or generalised anxiety.  She went on to note that you have experienced an assault in prison despite being in protection and you have witnessed violence generally in custody.  This environment can trigger impulsive, disproportionate responses which could cause deterioration of your condition.
15	This leads me to consider the mitigating factors which apply in this case.  Ms Ferrari's report points clearly to the need to consider your likely continuing experience of imprisonment as placing a heavy burden upon you; greater than that which would be experienced by others who do not suffer from the same conditions.  This might be exacerbated by the fact that this is your first experience of imprisonment.  I accept that these circumstances apply to you and I take it into account in determining your sentence.  
16	Your plea of guilty means that you are entitled to a discount on your sentence because you have avoided a trial and spared the witnesses from having to give evidence either at a trial or at a committal hearing.  That is an important consideration.  It also assisted the court and the criminal justice system at a time when there is a large backlog of trials due to the COVID pandemic. 
17	A plea of guilty is often accepted as an indication of remorse with the acceptance of responsibility for the offending.  You have indicated through your counsel that you are ashamed and remorseful.  This was not a matter addressed by Ms Ferrari because, as I said earlier, her assessment of you was conducted for the purpose of her opinion as to your fitness for trial when the case was still at the committal stage and no plea had been entered.
18	Your prospects for rehabilitation are increased by your remorse and shame and are dependent on several other factors as well.  You have a good work record and continued to support your family even after the marriage breakdown.  You have quite wide experience in the workforce and you understand that your former job will be available when you are released.  You have the support of your sister, who I understand now lives in Melbourne and the important ties to your children and ex-wife. 
19	With no previous convictions for sexual offending, the existence of these protective factors indicate good prospects for rehabilitation.  Although you have several prior convictions, they all arose from the aftermath of the breakdown of your marriage and bear no relation to sexual offending.  The courts imposed community orders upon you, and this has been your first time in prison.  There is nothing to indicate an apparent risk of reoffending in this way.  The time you have spent on remand has been entirely within the period of COVID restrictions, requiring prisoners to spend a lot of time in their cells from time to time and having little or no access to programs and courses.  Visitors have also been restricted and all these factors have caused hardship which is a matter to be taken into account and given considerable weight as a mitigating factor.
20	The principle of parity of punishment with the co-offender must be addressed.  He was 20 years old and faced many more charges for sexual offending, which occurred over three weeks and with three complainants.  He had youth in his favour, while you are a mature man.  He was charged with the same offence as you, sexual penetration of a child under 16, which has been identified as 
Charge 13 on the indictment to which he pleaded.  However, it appears not to have been a rolled-up charge as Charge 1 is in your case, representing the two incidents of penetration.  He was sentenced to prison for two and a half years for that offence with six months to be cumulated.  That sentence is not particularly helpful in determining an appropriate sentence in respect of 
Charge 1.  
21	The factors which serve to mitigate your punishment also affect favourably the need for specific deterrence.  As your prospects for rehabilitation are probably good, I take that into account in determining an appropriate sentence.  General deterrence is a sentencing principle of great importance in a case such as this because of the inherent danger to children these charges represent and the great harm which can be caused and was indeed caused in this case.  The short duration and opportunism do little to diminish their seriousness.  Sexual abuse of children is regarded with abhorrence by the community and deserves both stern condemnation and severe punishment.  
22	Mr Khaleel, I sentence you to three years imprisonment for Charge 1 and one year for Charge 2.  Six months of the sentence for Charge 2 is to be cumulated on the sentence for Charge 1.  That results in a total effective sentence of three years and six months. 
23	 I fix a period of two years and four months to be served before you will be eligible for parole.  
24	Pursuant to s6AAA of the Sentencing Act, if you had pleaded not guilty I would have sentenced you to four years and three months with a non-parole period of three years and six months.
25	In determining the sentence, I have taken into account the standard sentencing regime of the Crimes Act which applies in this case, as I mentioned earlier, which provides a legislative guidepost.  In relation to each charge, the sentence is lower than the standard sentence of six years and four years respectively.  I determined that they are appropriate sentences taking into account the very serious nature of the charges assessed only on their objective factors and when the mitigating factors and other sentencing requirements are taken into account.
26	Under the Sex Offender Registration Act, you must report your details to the police every year after your release from prison for the rest of your life.  
27	You have been in detention since your arrest on 16 February 2021; a total of 475 days.  I declare that time to be reckoned as already served and shall note it on the court record.  
28	Now, Ms Piggott, are there any matters that I've neglected or omitted?
29	MS PIGGOTT:  I think there was a disposal order, Your Honour.
30	HER HONOUR:  Yes, there is.  I have that disposal order here.  I make that order.  Presumably, Ms Gaunt, that's not opposed, is it?
31	MS GAUNT:  It's not opposed, Your Honour.
32	HER HONOUR:  Thank you.  All right.  Anything further from you, Ms Gaunt?
33	MS GAUNT:  No, there isn't, Your Honour.  If I could just hopefully have an opportunity to speak to him after Your Honour leaves the Bench but otherwise, nothing further from me.
34	HER HONOUR:  All right.  I'll leave the Bench now.  I'll leave my associate with a copy of the sentence if anything needs to be clarified and Mr Interpreter can use some time if he needs it to clarify anything with Mr Khaleel.
35	MS GAUNT:  If Your Honour pleases.
36	MS PIGGOTT:  If Your Honour pleases.
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