District Court New South Wales Medium Neutral Citation: R v Elwdah [2023] NSWDC 416 Hearing dates: 1 September 2023 Date of orders: 6 October 2023 Decision date: 06 October 2023 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Imprisonment for 2 years 3 months; to be admitted to a recognizance release order at the expiration of 12 months, without security. Catchwords: CRIME — SENTENCE — use carriage service to transmit a communication with the intention of procuring a child under the age of 16 years for sexual activity. Legislation Cited: Criminal Code Act 1995 (Cth): s 474. 27AA(1) Crimes Act 1914 (Cth): s.20(1)(b) Category: Sentence Parties: Rex (Crown) Mahdy Hasn Elwdah (Offender) Representation: Ms Tam (CDPP) Mr McAuliffe (Counsel for the offender) File Number(s): 2022/303965 Publication restriction: Nil REMARKS ON SENTENCE 1. Mahdy Hasn Elwdah, you appear for sentence today in relation to one offence, namely, that you used a carriage service to transmit a communication to a recipient, with the intention of making it easier to procure a child you believed to be under 16 years of age to engage in sexual activity with you. 2. The offence involves a contravention of s 474.27AA(1) of the Commonwealth Criminal Code. The maximum penalty for the offence is imprisonment for 15 years and / or a penalty of $199,800.00. 3. The facts surrounding the offending are contained in a statement of agreed facts which can be summarised as follows. 4. As at September 2022, you were 22 years old. 5. Between 19 September 2022 and 1 October 2022, you participated in five online "conversations" (the total of which is the offending "communication") with a person whom you believed to be a 40 year old woman who had a 9 year old daughter. In fact, the person with whom you were communicating was an assumed online identity associated with the Child Exploitation Internet Unit attached to the New South Wales Police Force. There was no 9 year old child. 6. The first of those five online communications occurred on 19 September 2022 when the assumed online identity received a message from you on an online chat service. In the conversation which followed (the transcript of which occupies three and a half tightly typed pages of the agreed statement of facts), you engaged in explicit conversation concerning having various forms of sexual intercourse with the assumed online identity and her 9 year old daughter. Concerningly, you stated in this conversation that you had had fantasies about having sexual activity with a mother and her young daughter since you achieved puberty and that you had "…started exploring recently…" this fantasy. Just as concerningly, you told the assumed online identity that you had a significant quantity of quite disturbing pornography. In this context, as I shall later mention, no such pornography was found by police when a search warrant was executed at your residential premises. The fact that you stated you had such material is, of itself, the matter of concern. 7. The second of those conversations occurred at a later time on the same day, but via Skype (as with the other subsequent conversations I shall refer to). This conversation occupies approximately 4 tightly typed pages of the agreed statement of facts. As with the first conversation, there was explicit reference to you participating in sexual activities with the assumed online identity and her 9 year old daughter. In the course of this conversation, you provide two photographs of yourself. To my mind, this indicates just how seriously committed to this enterprise you were. 8. The third of those conversations occurred on 21 September 2022. This conversation was not as lengthy as the first two. In the course of this conversation, there was express sexual reference: to you watching pornography involving underage girls being abused by adult males; and to you engaging in sexual activity with the assumed online identity and her 9 year old daughter. But, towards the end of that conversation, you appeared to consider terminating the conversation and the proposals that you had earlier made. In this context, amongst other things, you wrote: "I'm going to stop myself now for my own sake, plus you and your innocent daughter's sake, we should stop being so dirty minded, this is just wrong, I hope you can see it as I do before you expose her to the dirty world so early. I will not share any of this to anyone you have my word, just I'm changing my mind about all this… It is a very sexy and hot topic this taboo thing. But the costs… To the child development as it grows… Is unfathomable…". 1. Notwithstanding that expressed concern for the child, you engaged in a fourth conversation on 25 September 2022. It also was relatively short. In the course of it, you wrote: "…although I said I didn't want to do this anymore…", and then you went on (again) to discuss engaging in sexual activity with the assumed online identity and / or her daughter. 2. The final conversation occurred on 1 October 2022. It was very brief, but it did include an explicit discussion about you having sexual activity with the assumed online identity before having sexual activity with her daughter. 3. For completeness, I note that, on 6 and 8 October 2022, the assumed online identity tried to engage you in further communications, but you did not respond to those overtures. 4. I am unable to make any finding, either in your favour or adversely to your interests, as to why you did not respond to those two communications; or why there were no further communications between you and the assumed online identity before 12 October 2022, when you were arrested at the premises at which you lived and the search warrant to which I have earlier referred was executed. 5. In the course of the execution of the search warrant, a number of electronic devices were seized and subsequently forensically examined; however, "nothing of interest" was found by the relevant investigators. 6. In terms of its objective seriousness for an offence of its kind, the offence is slightly below a mid-range offence. 7. A significant aggravating factor is that the intended victim of your offending was under 10 years of age. 8. You did not give sworn evidence in the sentencing proceedings. Rather, your subjective circumstances were placed before the Court through: a sentencing assessment reported dated 22 August 2023; a NSW Department of Corrective Services Psychological Services Case Note Report; a report by a psychologist dated 21 August 2023; a letter signed by you dated 1 September 2023; and three character references. 9. Some aspects of the sentencing assessment report, the psychologist's report, and your letter will require some specific attention. 10. Before turning to those aspects of those documents, the following preliminary observation is appropriate. 11. The charge to which you have pleaded guilty (and in respect of which a conviction has been entered) involves an unambiguous admission by you that the communication (constituted by those five discrete conversations) was done with the intent of making it easier for you to procure a person, whom you believed to be under 16, to have sexual activity with you – i.e., not to engage in "role play" as you told the police in the recorded interview with them on the day of, and after, your arrest. I shall now turn to the three documents. 12. The sentencing assessment report, amongst other things, concluded that you had minimised your role in these communications. It also recorded: (a) that you denied having a sexual interest in persons under the age of 18 years; and (b) that you asserted that the communications had not been "a real thing", and that you had "not been talking to "real people". As with your initial interaction with police, these statements are not consistent with the plea of guilty. 13. Ultimately, the sentencing assessment report assessed you as being an above average risk of reoffending. 14. In your letter dated 1 September 2023, you stated that whilst (initially – my word) you had suspicions that the "interactions were not real", you "…nevertheless, continued to engage in the conversations and communicate with the AOI with the intention of making it easier to access her child. [You] completely understood it to be real when the AOI sent [you] a picture of children's underwear". You then asserted in the letter that it was at that point that you decided not to continue with "the disgusting behaviour" and that, "[t]hereafter, [your] focus was on the woman rather than the child". This version of events, not supported by any sworn evidence by you, is inconsistent with the terms of the totality of the five conversations making up the offending communication. 15. However, the gloss which you've sought to put on the conversations was consistent with the history you gave to the psychologist in your consultation with him on 29 June 2023. 16. In that history, you denied "…ever accessing or having an interest in child sexual abuse material, or any other deviant or inappropriate sexual interests". In this regard, I note that, as I have already said, when the search warrant was executed at your premises on 12 October 2022, "nothing of interest" was found by investigators on the electronic devices which they seized and later forensically examined (even though in the first and second conversations you, in effect, stated that you either watched, or had possession of, child abuse material). 17. Notwithstanding that history and the other diagnoses made by the psychologist (including an assessment by him that you were in the medium risk category of reoffending by having regard to static risk factors), he nevertheless notably wrote: "Whilst Mr Elwdah's history does not indicate the presence of long-term or ongoing deviant or paraphilic, or paedophilic sexual interest, due to the nature of the current offence, further exploration of any sexual interest in children is warranted". 1. For the avoidance of doubt, by having regard to: your plea; the totality of the contents of the communication; and the contents of those documents I have referred to I am satisfied, beyond reasonable doubt that you have a sexual interest in pre-pubescent female children. 2. The balance of your subjective material is less controversial; and I am satisfied, on the balance of probabilities, as to the following facts. 3. Your parents migrated to Australia from Kuwait in 1988. They have had six children – you are the youngest, being born in Sydney in 2000. 4. You were brought up in a loving and supportive family environment. 5. Your family have remained supportive to you in the face of this charge. 6. You completed Year 12 and have consistently had a meaningful work history since you left school. Currently you are working as a curtain installer. 7. You have no physical or intellectual disabilities. You have no issues with alcohol, gambling or illicit drugs. 8. You have no prior criminal convictions. For offences such as the one for which you are to be sentenced, this consideration is of reduced (but still some) significance. 9. You have had limited intimate personal relationships. In this context, I note that the psychologist, in his report, stated: "…[your] prospects of rehabilitation are positive if [you] were to engage in an appropriate course of psychological treatment to address the identified criminogenic needs associated with [your] offending. Specifically [your] low self-worth, negative self-perception, and perceived inadequacies, [your] interpersonal relationship skills, and [your] anxious symptomatology should all be the focus of clinical attention in a course of psychological treatment". 1. That expression of opinion, however, includes a statement that one of the protective issues against you re-offending was that you did not endorse attitudes consistent with, or supportive of, child sexual abuse. This, however, is not consistent with the content of the five conversations constituting the offending conduct and, in my opinion, significantly undermines the weight to be given to that expert's report, at least on the topic of rehabilitation. 2. In this regard, I am not persuaded that there is genuine remorse, not least because you have not fully accepted the criminality of your conduct. This is, in part, demonstrated by the fact that, from the date of your arrest on 12 October 2022 to the date of the sentence hearing on 1 September 2023, you had not sought any psychological treatment for the matters that bring you to Court today. 3. Notwithstanding your early plea of guilty (a plea entered in the face of a strong Crown case), in my opinion, by having regard to the various matters I have referred to, your prospects of rehabilitation are guarded. 4. The fact of that early plea, however, will result in a meaningful reduction (25 per cent) on the sentence which would otherwise have been imposed. 5. General deterrence is the primary consideration for offences of this kind and it is fully engaged. 6. Specific deterrence, denunciation, punishment and the protection of the community – as well as your rehabilitation – are also considerations which are fully engaged. 7. In all the circumstances, I am satisfied that no sentence other than a sentence of imprisonment is appropriate. In this context, I am specifically not satisfied that there are exceptional circumstances – such as your age; lack of prior convictions; or COVID-19 issues – which individually, or taken together, displace the statutory presumption of immediate imprisonment. 8. Furthermore, I am not satisfied that an intensive correction order is an appropriate means of serving the term of imprisonment: community safety, being the paramount consideration, would not be met if such an order were made. 9. You have not spent any time in custody following your arrest and, therefore, the term of imprisonment will date from today. 10. Except for your plea of guilty, I would have sentenced you to a term of imprisonment of 3 years. However, allowing a 25 per cent discount for that plea, the term of imprisonment will be 2 years 3 months. 11. Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) I order that, at the expiration of 12 months, the sentence be partially suspended and that you be admitted to a recognizance release order, without security, in the sum of $500. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 October 2023