AR v R

1. [1]

   HARRISON CJ at CL: I have had the significant advantage of reading in draft the judgments of both his Honour Ierace J as well as that of his Honour Ball JA. Although I understand the latter’s persuasive and well-reasoned view that the appeal should be allowed, I am unable to agree with his Honour’s conclusion. On the contrary, I consider that the trial judge’s sentence cannot be shown either to be infected with error or to be manifestly excessive. I agree with Ierace J that the grounds of appeal are without merit and that the appeal should be dismissed for the reasons he has given.

2. [2]

   I wish only to make the following comments. There was significant discussion in this Court with respect to the fact that the applicant’s wife managed to return to Australia and to resume her residence here without any adverse impact upon her immigration status despite the applicant’s withdrawal of his sponsorship. That line of reasoning places emphasis upon what I perceive to be the proposition that things could well have turned out to be much worse for the applicant’s wife and that he should now be entitled to take advantage of that fact for the purposes adjudging the reasonableness or otherwise of his sentence. I cannot accept that argument.

3. [3]

   It is well understood that an applicant who wishes to contend that his or her sentence is manifestly excessive can take no comfort from the fact that the consequences of the offending were not as bad as they could or might have been. In the events that occurred, the applicant’s wife was either sufficiently resourceful or fortunate that she was not left stranded in a country that she had some time before decided permanently to leave. She became a resident in Australia. The fact that she managed to return to Australia does not in my opinion mean that it should somehow be accommodated or accrue to his benefit on sentence. The material upon the basis of which the applicant was sentenced supports a compelling inference that his plan was that his wife should remain in Afghanistan with her family and not return to Australia.

4. [4]

   This is also a case in which general deterrence plays a significant role. The cynical expedient of permanently stranding a spouse or intimate partner in another country as a means of circumventing legitimate avenues for divorce or the legal or moral obligation to support such a person or to divide one’s fortune is not limited to the cultural or ethnic or religious circumstances of the present case. Anyone contemplating the kind of plan adopted by the present applicant, from whatever background he or she might have come, should well understand that such conduct is not without significant consequences. I am not attracted to the proposition that what occurred in the present case could or possibly should not be described as human trafficking strictly so called. That is beside the point. The offence to which the applicant pleaded guilty was facilitating the exit of a person from Australia by deception. There are no ethnic or racial or religious limitations upon the way in which such an offence may be committed. The sentence in this case ought to have wide ramifications.

5. [5]

   The applicant’s offence was well planned. The deception was calculated and successful. The offence was in my opinion a very serious example of its kind. The appeal should be dismissed.

6. [6]

   BALL JA: It is not necessary for me to set out the facts of this case, which are set out in the judgment of Ierace J, which I gratefully adopt.

7. [7]

   In my opinion, the appeal in relation to Ground 1 should be allowed and on a re-sentencing I would not have imposed a custodial sentence. Since I am in the minority, my reasons can be stated briefly.

8. [8]

   The critical passage of the sentencing judge’s judgment which is relevant to Ground 1 is the following passage at J[32]:

9. [9]

   There was no evidence before the sentencing judge to support the conclusion that at the time the offence occurred Afghanistan was a “scary and fear-provoking environment”, which was a description the sentencing judge had taken from the applicant to describe the country at a time when he fled with his family in about 1998 (when he was 18) to escape the Taliban. Although I accept that the judgment must be read as a whole, this passage, was important because it encapsulated the environment into which the sentencing judge thought XY was being placed as a consequence of the applicant’s deception. In my opinion, that is an important element of the objective seriousness of the offence. One of the matters which makes the offence serious or less serious is the consequence for the victim of the departure from Australia. That is not to say that the ultimate consequences for the victim in this case are relevant. I accept that they are not. However, what is relevant is the place where by deception the victim has been persuaded to go and the circumstances that the victim will face in that place. The sentencing judge clearly thought that the fact that XY had been deceived into leaving Australia for Afghanistan was important in assessing the objective seriousness of the offence; and he made assumptions about those consequences which were not proved. That was an error.

10. [10]

    In relation to re-sentencing, this is an unusual case. The offence committed by the applicant is one of a number directed at trafficking in persons all of which, save for aggravated offences and those involving the trafficking of children (see ss 271.3-271.4, 271.6-271.7 of the Criminal Code), carry a maximum penalty of 12 years. The applicant is guilty of the offence because there is no doubt, and he ultimately accepted, that he organised XY’s departure from Australia and achieved that result through the use of deception. Moreover, as the sentencing judge pointed out, the applicant’s conduct involved a degree of planning which was relevant to the objective seriousness of the offence and which was exacerbated by lies that he told to the police. However, it could not be said that in carrying out those acts, the applicant in any ordinary sense of the word “trafficked” in a person. Rather, he arranged for XY to return to her hometown in Afghanistan where she had lived most of her life, had had a successful career as a teacher and had the support of her family. The applicant placed XY in a position where she largely retained her autonomy, was able to act in her own self-interest and had the assistance and support of her family to do so. In that sense, the applicant’s conduct was far removed from the conduct to which the section is primarily directed. For that reason, in my opinion, it was at the low end of objective seriousness; and the maximum penalty for the offence is of limited assistance in determining what an appropriate sentence might be in this case.

11. [11]

    Although the sentencing judge appears to have placed some weight on the fact that the applicant “took steps to prevent [XY] from returning to Australia by contacting the Department of Home Affairs seeking to withdraw his sponsorship of [XY]’s visa whilst she was still overseas” (J[27]), that is something that the applicant was able to do whether XY was in Afghanistan or not. She had her visa as a result of her arranged marriage with the applicant and the applicant was her sponsor for permanent residence. According to the statement of agreed facts “A condition of her partner visa was that she continue to be sponsored by [the applicant]”.

12. [12]

    The subjective circumstances of the applicant also suggest that considerable leniency is appropriate in this case. As the sentencing judge pointed out, the applicant has no prior criminal history. Since coming to Australia in about 2008, he has been gainfully employed and had, at least up until the time of his arrest, run a successful commercial painting business which he started and built himself: J[41]. Prior to his offending, in about 2010, the applicant sought psychological treatment for symptoms of anxiety, depression and post-traumatic stress disorder, which was apparently related to the circumstances in which, before coming to Australia, he migrated to Iran with his mother and four siblings to escape the Taliban.

13. [13]

    At the time of his sentencing, the applicant was diagnosed as having major depressive disorder and generalised anxiety disorder. He has lived with his mother and brother since coming to Australia apart from the time he was required to live separately from them because of his bail conditions. The uncontradicted evidence of Mr Borkowski, a psychologist who prepared a pre-sentencing report for the applicant, was that the applicant was “ill-equipped to cope with the circumstances of domestic discord which re-activated his underlying depressive and anxious symptomology [sic]” (J[46]). As the trial judge accepted at J[52] the applicant is a low risk of reoffending and has good prospects of rehabilitation.

14. [14]

    In relation to general deterrence, the sentencing judge said this at J[34]:

15. [15]

    I cannot accept that this passage contains an accurate characterisation of the events in this case. It is an oversimplification to say that the applicant exploited XY for his own gain or that he treated her as a spent chattel whose use by date had expired. Rather, the applicant was placed in a difficult position. It appears that he is devoted to and very much under the control of his mother who had arranged the marriage. The applicant took the steps he did because of the breakdown in the relationship between his mother and XY. On or about 15 December 2017, the applicant’s mother told him she no longer wanted to live in the house with XY anymore: J[12]. No doubt, the applicant’s conduct involved a serious error in judgment. However, it could not be said that the applicant simply used XY as a spent chattel.

16. [16]

    The events that have occurred since the offence also suggest that a degree of leniency is appropriate.

17. [17]

    On 27 March 2018, the police executed a search warrant at the applicant’s family home in Merrylands, NSW. It was not until 10 July 2019, about 16 months later, that the applicant was arrested and charged. He was imprisoned until 12 July 2019 when he was released on conditional bail. Until the end of 2022, the conditions were stringent including daily reporting and no contact with his brother or mother, which would no doubt have been particularly traumatic for him. For reasons which are not explained in the evidence, he was not sentenced until 21 June 2024. The length of time that the matter was hanging over the applicant’s head would itself operated as a form of punishment.

18. [18]

    The applicant was initially held in Parklea Correctional Centre which he described as some of the worst days of his life. He was moved to another correctional centre for about a week and then to Cessnock Correctional Centre. He was granted bail on 14 August 2024 pending the determination of his appeal, but not released until the following day. Since being on bail, he has begun to rebuild his painting business.

19. [19]

    Taking all these matters into account, I do not think that a custodial sentence is warranted. Given that I am in the minority, nothing is to be served by indicating the sentence that I would have imposed. However, in the circumstances of the case, in my opinion an intensive correction order would be appropriate.

20. [20]

    IERACE J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against a sentence imposed on him by his Honour Judge Grant in the District Court on 21 June 2024, following his plea of guilty to an offence of facilitating the exit of a person from Australia by deception, contrary to s 271.2(1A) of the Criminal Code (Cth).

21. [21]

    The maximum penalty for the offence is 12 years imprisonment. His Honour sentenced the applicant to imprisonment for 2 years and 1 month, commencing on 17 June 2024 and expiring on 16 July 2026, and an order for his release after serving 12 months upon entering into a recognizance for 2 years and giving security in the sum of $100. The applicant was released on appeal bail on 15 August 2024, having served 2 months of the sentence in custody. I note there is a non-publication order in place in respect of the names of the applicant and victim and any material that may identify them. I shall refer to the victim as XY.

22. [22]

    The applicant seeks leave to appeal on two grounds:

The sentence hearing

1. [23]

   Section 271.2(1A) of the Criminal Code, which is in Div 271 (“Trafficking in persons”), Subdiv B (“Offences relating to trafficking in persons”), is as follows:

2. [24]

   A statement of agreed facts, which was in evidence at the sentencing proceedings, is to the following effect.

3. [25]

   The applicant is an Australian citizen who was born in Afghanistan and migrated to Australia as a refugee in 2008, with his mother (SR) and brother.

4. [26]

   On 9 June 2014, the applicant married XY in Afghanistan; a marriage that had been arranged by SR and XY’s parents. He returned to Australia and applied for a partner visa for his wife, sponsored by him. XY remained in Mazar-i-Sharif, Afghanistan, with her family. The partner visa was granted, in March 2017, a condition being that she continue to be sponsored by the applicant. On 29 March 2017, she arrived in Australia and resided with the applicant, his brother and SR.

5. [27]

   By the end of 2017, the relationship between XY and SR had significantly broken down. On about 15 December 2017, SR told the applicant that she no longer wished to live in the house with XY.

6. [28]

   In January 2018, the applicant told XY that he was travelling to Kabul, Afghanistan, to undertake charity work, and asked her to accompany him, suggesting that she could wait in Mazar-i-Sharif with her family for the few days he expected it would take to complete his work in Kabul. The next day, XY asked SR: “Why was (sic) sending me to Afghanistan?” SR told her that she did not want XY staying with her while the applicant was away. The same day, XY shared her suspicions with the applicant that the trip to Afghanistan was arranged to send her back to Afghanistan permanently. He reassured XY there was no such hidden plan and that it would be good for her to visit her family.

7. [29]

   On 23 January 2018, the applicant had a text exchange with XY’s mother, who stated, as translated from the Dari language:

8. [30]

   The applicant replied:

9. [31]

   On 25 January 2018, the applicant booked himself a return flight to Kabul through a travel agent. He also booked a one-way flight to Kabul for XY, and a domestic flight for her from Kabul to Mazar-i-Sharif. At the applicant’s request, the agent prepared a separate itinerary under XY’s name that showed a return flight for her as well, although it had not been booked (the second itinerary).

10. [32]

    The following day the applicant showed the second itinerary to XY, telling her they were returning to Australia on 13 February 2018. XY noticed and pointed out that the stopovers were different to what he had previously told her. He replied that the person who organised the tickets may have made a mistake, but that the tickets had been booked correctly and he was expecting an emailed copy of the correct itinerary.

11. [33]

    XY packed items for a trip of two to three weeks. SR told her: “Take everything you own with you and give what you don’t want to the poor or a charity”. The applicant told her to pack their things separately, since they would be splitting up on their arrival in Kabul.

12. [34]

    On 27 January 2018, the applicant and XY travelled to Afghanistan via Bangkok and New Delhi. While in New Delhi, the applicant sent XY’s mother three images of him and XY at the airport. They arrived in Kabul on 28 January 2018. The applicant sent XY’s mother two images of him and XY at that airport. XY travelled on to Mazar-i-Sharif as planned, whilst the applicant stayed in Kabul.

13. [35]

    On 29 January 2018, XY texted the applicant from Mazar-i-Sharif. She asked him to get a SIM card and he responded that he would “find a telephone there … I’ll ring you”.

14. [36]

    The following day (30 January 2018) at 2.45pm, the applicant departed Kabul on his pre-booked flight to New Delhi and on to Australia. On 31 January 2018, in a text exchange, XY asked if he had the internet yet. The applicant replied that he had borrowed a phone “for a few minutes … he is going away therefore it may disconnect soon”. XY sent two voice messages, asking him to take care to:

15. [37]

    The applicant texted back: “It is impossible to talk, I am somewhere at the moment but will try and contact you ...”

16. [38]

    In the early morning of 1 February 2018, the applicant arrived back in Sydney. At about 11.30am, he texted XY:

17. [39]

    On 2 February 2018, the applicant wrote to the Commonwealth Department of Home Affairs advising that he had withdrawn his sponsorship of XY’s partner visa. He informed the Department that their relationship had broken down, they were no longer living as husband and wife and that she had returned to Afghanistan on 27 January 2018.

18. [40]

    On the same day, XY made 24 missed calls to the applicant and sent multiple texts, expressing concern for his safety in Kabul. Her last text was: “[the applicant] answer me. You kill me. My heart is in a thousand pieces”.

19. [41]

    On about 2 or 3 February 2018, during a phone conversation between SR and XY’s mother which was on loudspeaker and heard by XY, SR said: “We divorce, divorce, divorce your daughter”.

20. [42]

    On 3 February 2018, XY’s mother sent the applicant three texts, as follows:

21. [43]

    On about 3 February 2018, XY contacted the travel agency used by the applicant to book the flights and requested a change in her return flight date to Sydney. She was informed that she only had a one-way ticket. She requested a copy and was told it had been emailed to the applicant. The next day, she contacted relatives in Australia who checked her residency status online and confirmed that she still had a valid visa. With the financial assistance of relatives, she returned to Australia, arriving on 5 February 2018. The following day, she attended a police station and made a complaint.

22. [44]

    On 27 March 2018, the Australian Federal Police executed a search warrant at the applicant’s address. Various personal items belonging to XY were located. The applicant was cautioned and participated in an interview with police, in which he made the following statements:

    1. (1)

       He travelled to Afghanistan with his wife at her request. She had been asking to visit her family for about two months and she did not want to go without him, because she was lonely and it was her first trip back;

    2. (2)

       He had a good relationship with his wife, who had asked him to book their travel to Mazar-i-Sharif, Afghanistan, in January 2018 so that she could visit her family and her sick grandmother;

    3. (3)

       His wife requested a one-way ticket to Afghanistan because they were not sure when she would return to Australia, however, he anticipated she would return sometime in February 2018 to commence English classes. She said she may be there for 15 days or more and she would call three days beforehand, so he could arrange her return flight;

    4. (4)

       He booked the tickets in consultation with his wife and kept her informed about his discussions with the travel agent concerning the tickets and their travel;

    5. (5)

       They spent three or four nights in Afghanistan before she flew on to Mazar-i-Sharif. She told him that he could return home and she would come back alone;

    6. (6)

       He stayed in Kabul and did not accompany his wife to Mazar-i-Sharif because he had to return for work and he also had many family members there who he would have to buy gifts for;

    7. (7)

       On the day he headed back to Australia, he told her he was leaving;

    8. (8)

       Two days after he returned to Australia from Afghanistan, his wife’s mother called his mother who placed the conversation on speaker phone. He heard his wife’s mother say, “my daughter doesn’t want to live with [the applicant] anymore”. This came as a shock as he thought everything in his marriage was going well; and

    9. (9)

       He wanted to reconcile his marriage but soon after that phone conversation he sent a letter to the Department of Home Affairs advising that he was withdrawing his sponsorship of his wife’s partner visa.

23. [45]

    The applicant was arrested about 16 months later, on 10 July 2019. He had no criminal record.

24. [46]

    A victim impact statement was read to the Court. XY stated that the experience had left her:

25. [47]

    She stated that before her marriage she was “a self-sufficient and independent woman”:

26. [48]

    A report by a Forensic Psychologist, Jason Borkowski, dated 23 May 2024, was tendered into evidence on behalf of the applicant. It was to the following effect.

27. [49]

    The applicant was born and raised in Afghanistan in a family home where he enjoyed “very close and very friendly” relationships with his four siblings. His father was an officer in the Afghanistan army and described by the applicant as a “kind and gentle person” who was a positive role model and supportive of all his children. The applicant’s mother was a teacher and similarly described by the applicant as wanting the best for her children, and with whom he has maintained a close and supportive relationship. His mother and father enjoyed a happy, stable and close relationship with no instances of violence or abuse. However, his father was killed in a motor vehicle accident when the applicant was in his late childhood.

28. [50]

    The applicant completed Year 12 of high school in Afghanistan. He was an above average student academically, despite attending schools with poor economic status and limited educational resources, and reported no behavioural concerns.

29. [51]

    Mr Borkowski stated:

30. [52]

    He and his family migrated to Iran when he was 18 (in about 1998) to escape the Taliban, who had assumed control of Afghanistan. He worked in a factory that manufactured cardboard boxes, to support himself and his family.

31. [53]

    In 2008, the applicant and his family migrated to Australia with the assistance of the United Nations. They rented accommodation and in 2016 purchased a residence in Merrylands. The applicant enrolled in English classes and worked for a furniture manufacturing company for about 18 months, until the factory shut down. Thereafter, he was employed as a painter for about four years and more recently established his own painting business, which he is motivated to grow.

32. [54]

    The applicant reported one relationship prior to his marriage, which was in about 2012 and lasted for about nine months. He was not in a relationship at the time of his assessment.

33. [55]

    The applicant described Australia as “an incredibly happy place”, saying that he was “always appreciative of [his] life in Australia”. He denied having antisocial or criminal peer networks and continued to have the support of his mother, siblings, several close friends and his extended family. He denied any history of illicit drug use and stated that he does not consume alcohol.

34. [56]

    As to the background and circumstances of the offence, Mr Borkowski related the following account from the applicant:

35. [57]

    Mr Borkowski assessed the applicant as having a low risk of reoffending, according to the risk assessment tool known as the Level of Service Inventory–Revised (the LSI–R), which took into account his positive self-regulation skills, prosocial connections and support and employment history.

36. [58]

    With respect to the applicant’s mental health, he reported attending a psychologist in 2010 on the recommendation of his general practitioner after experiencing increased anxiety, particularly in social settings. He found his five–six sessions to be of assistance. His mental health remained reasonably stable until 2023, where he again sought treatment from his psychologist. His criminal charge had culminated in feelings of anxiety, stress, hopelessness and negative self-worth. The additional psychological counselling focussed on skills and strategies to help cope with his confronting circumstances.

37. [59]

    The applicant acknowledged that the death of his father and the war in Afghanistan were traumatic life experiences, saying that he “tried to put it all behind [him]” and move on with his life in Australia. He said he was not currently prescribed any medication for physical or mental health concerns. He denied suicidal ideation and acts of self-harm.

38. [60]

    Mr Borkowski diagnosed the applicant as follows:

39. [61]

    Mr Borkowski opined, as to the applicant’s offending behaviour:

40. [62]

    The applicant also relied upon a report by his treating psychologist, who confirmed he treated the applicant in 2010 and 2023, and some character references.

41. [63]

    The Crown noted in its written submissions a lacuna of appellate authority considering s 271.2(1A) of the Criminal Code. It submitted that a sentence of full-time imprisonment was appropriate in the circumstances of the case, having regard to the objective seriousness of the offending and the need for general and specific deterrence.

42. [64]

    The Crown characterised the applicant’s conduct as a serious example of the offence. As to the nature and circumstances of the offending, the Crown submitted that it was not spontaneous and involved multiple acts of deception on someone who placed considerable trust in the applicant, as her domestic partner. The abuse of her trust in that relationship caused a significant impact on the victim and warranted particular significance on general and specific deterrence.

43. [65]

    The Crown “readily accepted” in its oral submissions that domestic violence sentencing principles were inapplicable because the offence could not be seen “as part of a wider context of abuse”. However, because the offence occurred in a domestic context which involved a serious breach of trust and exploitation of the victim, it was submitted that “some assistance” could be derived from those sentencing principles.

44. [66]

    The Crown acknowledged the applicant’s plea of guilty but submitted that it reflected a “recognition of the inevitable” in view of the Crown’s strong case, citing Tyler v The Queen [2007] NSWCCA 247; (2007) 173 A Crim R 458. However, it accepted that “some recognition” of the plea was warranted because it avoided the need for the trial and for the victim to give evidence.

45. [67]

    The defence similarly observed that it could find no appellate guidance with respect to sentencing for an offence contrary to s 271.2(1A) of the Criminal Code. It did not accept that the appropriate sentence in the circumstances of the case was full-time imprisonment.

46. [68]

    It was conceded that the offence was planned and involved layers of deception. However, the defence contended that the offending fell below the mid-range of objective seriousness in view of the following:

47. [69]

    Further, the defence contended that likening the offence to domestic violence offences “demand[ed] circumspection”, noting the absence of evidence of violence or abuse in the relationship.

48. [70]

    With respect to the applicant’s subjective case, the defence relied upon the information disclosed and the findings in Mr Borkowski’s report, especially concerning the applicant’s mental health. The defence submitted that Mr Borkowski’s opinion provided a basis for a finding that the applicant’s mental condition materially contributed to his offending, which ought to reduce his moral culpability in accordance with DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194. His mental health conditions would also make for a more onerous custodial experience, in addition to the applicant’s poor English.

49. [71]

    The defence submitted that the applicant’s early plea of guilty demonstrated his willingness to facilitate the course of justice and that it had objective utilitarian value. The applicant’s clear criminal history, his prosocial life in Australia as well as his low risk of reoffending and good prospects of rehabilitation, were noted.

50. [72]

    In view of the objective and subjective considerations above, the defence submitted that the threshold for imprisonment had not been crossed (s 17A(1) of the Crimes Act 1914 (Cth), the Commonwealth Crimes Act). But, if it was, the defence submitted that the Court would order the applicant’s immediate release on entering into a recognizance order or, alternatively, the sentence of imprisonment would not exceed 2 years and it could be served by way of an Intensive Correction Order.

The remarks on sentence

1. [73]

   The sentencing judge delivered judgment three weeks after the sentence hearing: R v AR [2024] NSWDC 307. His Honour noted the maximum penalty of the offence and the sentencing regime that applies to Commonwealth offences. His Honour prefaced his summary of the agreed facts by describing the offender’s conduct as “exploitative and deceptive towards a vulnerable victim, involving a significant breach of trust. He treated his wife as a chattel that could be discarded. His Honour referred to the victim impact statement, noting that consequent to its impact on XY, she required significant therapy and treatment.

2. [74]

   In assessing the nature and circumstances of the offending, the sentencing judge stated:

3. [75]

   As to the factors identified by defence counsel which sought to reduce the seriousness of the offending, his Honour reasoned that pointing to the absence of aggravating features did not make for a less objectively serious offence, citing Mills v R [2017] NSWCCA 87 and Saddler v R [2009] NSWCCA 83; (2009) 194 A Crim R 452.

4. [76]

   The sentencing judge said:

5. [77]

   His Honour concluded that it was “a serious example of offending”. His Honour found that general deterrence was of “particular significance” because it was an offence that was difficult to detect and which involved a breach of trust “through repeated deception” of a vulnerable victim for the offender’s own gain.

6. [78]

   A 15 per cent discount on sentence was allowed for the facilitation of the course of justice by the applicant’s plea. His Honour noted the applicant was untruthful to police, which demonstrated an absence of remorse and contrition and that, similarly, the applicant’s account in Mr Brokowski’s report was devoid of empathy for the harm suffered by XY and remorse. His Honour referred to the emphasised part of Mr Borkowski’s report extracted at [56] above, observing it was at odds with the agreed facts, and stated:

7. [79]

   Turning to the applicant’s subjective case, the sentencing judge summarised, and inferentially accepted the reliability of, the applicant’s personal history as related to Mr Borkowski. He noted Mr Borkowski’s diagnoses of the applicant and his opinion that the applicant was ill-equipped to cope with the domestic discord, which re-activated his underlying depressive and anxious symptomatology and led to him adopting a “maladaptive” solution, as extracted from Mr Borkowski’s report at [61] above.

8. [80]

   His Honour referred to the defence’s submission that Mr Borkowski’s opinion provided a basis for finding that the applicant’s mental condition contributed to the commission of the offence in a material way, thus reducing the applicant’s moral culpability. His Honour rejected the submission, finding that Mr Borkowski had not engaged with the facts of the offence, in particular, with the lies and deception:

9. [81]

   His Honour accepted the defence submissions that custody would be more onerous for the applicant, particularly due to his limited English, and that he posed a low risk of reoffending and had good prospects of rehabilitation.

10. [82]

    His Honour determined that a sentence of 2 years or less would be inadequate. In arriving at that conclusion, his Honour reiterated in list-form the multiple layers of deception to XY and concluded:

11. [83]

    His Honour nominated a starting point sentence of 2 years and 6 months, discounted by 15 per cent to 2 years and 1 month. The sentence was backdated to commence on 17 June 2024 in view of the applicant having been held in custody for 4 days. A recognizance release order was made, pursuant to s 20(1)(b) of the Commonwealth Crimes Act, by which the applicant was to be released after serving 12 months on a recognizance order upon giving surety in the sum of $100, without security, on condition that he is of good behaviour for two years.

The sentencing judge erred in assessing the objective seriousness of the applicant’s offence contrary to s 271.2A of the Criminal Code

1. [84]

   The applicant contended that the sentencing judge made two errors when assessing the objective seriousness of the offending. First, by failing to take into account relevant considerations and secondly, by allowing an extraneous or irrelevant matter to guide or affect him.

2. [85]

   With respect to the first aspect, the applicant referred to the sentencing judge’s rejection of the passage from the defence’s written submissions that is extracted at [68] above and submitted that his Honour had misapprehended its purpose. Rather than identifying an absence of aggravating factors, which was how his Honour had characterised the list, counsel was noting the relative seriousness of the offence in its statutory context and potential scope of such offending. The applicant sought to demonstrate the range of prohibited behaviours by referring to the Second Reading Speech to the Bill that introduced the concept of “deception” to the criminally culpable behaviours in the Act: the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (NSW). The applicant had used deception, but not “coercion”, and had not made a “threat” (see s 271.2(1A)(b)). Further, the removal of XY was not motivated by profit and she was returned to her family home rather than trafficked into slavery, sexual servitude, forced labour, forced marriage, or debt bondage (see s 271.1A, “Definition of exploitation”).

3. [86]

   As to the second aspect, in assessing the gravity of the offending, his Honour made an assumption as to the comparative state of personal freedom in Afghanistan at that time (which I note was prior to the Taliban takeover of Afghanistan in August 2021). There was no evidence before the Court upon which his Honour could make the findings emphasised in the extract from his Honour’s judgment at [76] above. In particular, there was no evidence that XY feared for her safety in Afghanistan, noting that in her victim impact statement she described herself as a “self-sufficient and independent person” who came from a “well-educated family”. It was submitted that his Honour had assumed that the applicant’s impression of Afghanistan when he lived there as a young adult, as he related it to Mr Borkowski, applied to then-current Afghanistan.

4. [87]

   The submitted error appeared to arise from an oral submission made by the Crown below that:

5. [88]

   The applicant submitted that on a fair reading of the remarks on sentence as a whole, it would appear that these matters did infect the sentencing discretion:

6. [89]

   The Crown contested both aspects of the applicant’s ground, submitting that the sentencing judge’s assessment of objective seriousness was based on what the applicant actually did. As to the first aspect, the Crown submitted that the sentencing judge had not dismissed those facts as irrelevant, but rather, he did not accept that their absence made the offence less serious.

7. [90]

   As to the second aspect, the Crown conceded that there was no evidence at the time of sentence as to conditions in Afghanistan, but that the applicant’s submission “misconstrues” the context of the reference by the sentencing judge. The Crown submitted that the passage directly quoted the applicant’s words to Mr Borkowski as to the state to which he returned XY, which the sentencing judge was entitled to take into account in assessing the gravity of the offence.

8. [91]

   The assessment of objective seriousness is a matter of the discretion of the sentencing judge, with which this Court will be slow to interfere. In Mulato v R [2006] NSWCCA 282 (“Mulato”), Spigelman CJ observed, Simpson J agreeing, at [37]:

9. [92]

   In order for this Court to interfere with the sentencing judge’s assessment, error must be demonstrated in accordance with the principles in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40 (“House v The King”): Mulato at [46] (Simpson J) and Magro v R [2020] NSWCCA 25 at [31] (Gleeson JA). In oral submissions, counsel for the applicant clarified that this was the basis of his challenge; to factors that his Honour did, and did not, take into account, thus enlivening the bases for intervention in House v The King of the sentencing judge taking into account “extraneous or irrelevant matters” or “not tak[ing] into account some material consideration”.

10. [93]

    There is merit in the applicant’s submission that the sentencing judge misunderstood the submission made by defence counsel concerning objective seriousness. As both parties noted, the section had not previously been the subject of appellate consideration. Defence counsel’s written submissions sought to identify a range of behaviours that are encompassed by the provision, in order to then fix where in that range the offending behaviour fell.

11. [94]

    However, I am not satisfied that his Honour fell into error by that misunderstanding, since he disregarded the submission and went on to consider the objective seriousness of the offence in an orthodox fashion.

12. [95]

    The sentencing judge’s references to Afghanistan, at the time that the offence was committed, being “an undemocratic country where there is inequality between men and women” and that the applicant was exposing his wife to the “scary and fear-provoking environment of Afghanistan”, were without an evidentiary foundation. However, it is necessary to read the remarks as a whole in order to understand whether those findings infected the process by which the sentencing judge assessed the objective seriousness of the offence.

13. [96]

    In my view, it did not. As I noted in Abdaly v R [2025] NSWCCA 127 at [46] (Bell CJ and Price AJA agreeing):

14. [97]

    Counsel for the applicant sought to demonstrate error in the sentencing judge’s assessment of objective seriousness by his Honour’s repeated references to XY’s “vulnerability” and “exploitation” and to her as a “chattel”. However, there was an ample evidentiary basis for those findings in the agreed facts without recourse to the impugned references to social standards and threats to personal safety in Afghanistan. A fair reading of the remarks leads to a conclusion that the references to life that awaited XY in Afghanistan were incidental and that the sentencing judge’s finding in respect of the objective seriousness that it was “a serious example of the offending” was unassailable.

15. [98]

    I would dismiss Ground 1.

The sentence imposed by the sentencing judge is unreasonable or plainly unjust

1. [99]

   The applicant submitted that the sentence imposed was manifestly excessive and intervention is warranted because, citing Tak Fat Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]: “there must have been some misapplication of principle, even though where and how is not apparent” on the face of his Honour's remarks.

2. [100]

   The applicant pointed to several factors which made the offence “a less serious example” of an offence contrary to s 271.2(1A) of the Criminal Code. These are, firstly, the factors identified at first instance that are extracted at [68] above, in particular, that coercion or threats were not involved and that through the deception, XY travelled to where she had family and had been residing ten months before.

3. [101]

   Secondly, as part of the broader context, the applicant was “inexperienced in managing intimate relationships”. Although the sentencing judge was entitled to find that the applicant’s moral culpability was not reduced by his “underlying mental conditions”, they played some role in his inability to navigate the tension between his mother and XY, as noted by Mr Borkowski in referring to the applicant’s “maladaptive” problem-solving approach. He was sentenced on the basis of a plea of guilty, having no prior convictions, having a low risk of reoffending, good prospects of rehabilitation and an excellent work record, and being otherwise a successful immigrant.

4. [102]

   The applicant submitted that in all those circumstances, the threshold of s 17A(1) of the Commonwealth Crimes Act should not have been crossed but, if it was, a significantly shorter period of imprisonment was warranted, which would have allowed consideration of an Intensive Correction Order.

5. [103]

   The Crown submitted that the sentence imposed reflected the sentencing judge’s findings as to the objective seriousness of the applicant’s offending and his synthesis of the applicant’s subjective circumstances, mindful of the maximum penalty of 12 years imprisonment and noting the finding that the applicant had not demonstrated significant contrition or remorse. The sentencing judge had expressly acknowledged s 17A of the Commonwealth Crimes Act and his Honour’s approach was consistent with that approved in Vamadevan v R (2024) 116 NSWLR 195; [2024] NSWCCA 223 at [57]: if ss 17A(1) and 16A(1) of the Commonwealth Crimes Act) were satisfied:

6. [104]

   In Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443], RA Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) summarised the principles to be applied when a sentence is alleged to be manifestly excessive:

7. [105]

   As noted, the sentencing judge did not place the objective seriousness of the offence within a range, consistently with authority, instead finding that it was “a serious example of offending”. The applicant had a strong subjective case, except for the complete absence of remorse and contrition. He gave an innocent account to investigating police and to Mr Borkowski, which necessarily undermined his opinion as to the circumstances of the offence. Rather than accepting responsibility, he told Mr Borkowski that he was trying to help XY by giving her an opportunity to reflect on her situation, “to make a choice of her own” and that he did not intend to leave her there.

8. [106]

   As acknowledged by the applicant, there is no discernible error on the face of the sentencing judgment. In my view, nor is error apparent from the sentence imposed. Although there were no comparative sentences to assist the sentencing judge, the sentence imposed represented less than a fifth of the maximum penalty with a recognizance release order that operates after less than half the sentence is served in custody. General deterrence had a significant role in the sentencing exercise. The combination of a planned, sustained, sophisticated (and in my view cruel) deception and the absence of remorse and contrition, places the sentencing judge’s finding that the s 17A(1) threshold was crossed, beyond criticism. Similarly, the structure of the sentence and its length was open to his Honour.

9. [107]

   I would dismiss ground 2.

10. [108]

    I propose the following orders: