MAB v R

1. [1]

   STERN JA: I agree with Sweeney J.

2. [2]

   GARLING J: I agree with the orders proposed by Sweeney J in her judgment.

3. [3]

   I also agree with her Honour’s reasons for dismissing Grounds 1 and 5 of the applicant’s proposed grounds of appeal.

4. [4]

   Whilst I would also dismiss Grounds 2, 3 and 4 of the applicant’s proposed grounds of appeal, I would do so for reasons which differ from those expressed by Sweeney J.

5. [5]

   In my view, the evidence before Traill DCJ was wholly insufficient to establish “… any form of … cultural practice …” of a kind sufficient to fall within that description in section 16A(2A) of the Crimes Act 1914 (Cth).

6. [6]

   The applicant, who had been in Australia since 2007, gave no evidence, either oral or written, of the existence, contemporaneously with his conduct, of any such cultural practice.

7. [7]

   It was an agreed fact that the applicant had told police in a recorded interview that he considered it to be “… the duty of a Punjabi father to arrange the marriage of their children”.

8. [8]

   Ms Allaw, a forensic psychologist, recorded in her report dated 22 June 2024, that the applicant told her that “… he felt it was his responsibility to get his children married”. He described to Ms Allaw that, based upon his “… cultural upbringing, the father arranging his children’s marriage partner was considered to be the norm”.

9. [9]

   Whilst Ms Allaw expressed a number of opinions about the applicant’s parenting style and the basis for engaging in the offending conduct, she did so because she relied upon the truth and accuracy of what the applicant told her. She was not, and did not hold herself out to be, an expert in any cultural practice in the Punjab region of Pakistan. The absence of any sworn evidence from the applicant averring to the truth of what he told Ms Allaw means that little weight can be placed on her opinion.

10. [10]

    Mr Muhammad Riaz, a childhood friend of the applicant, provided a character reference dated 25 June 2024, which was tendered as part of the applicant’s case on sentencing. He said that the applicant and he had attended primary school together. Whilst he recorded what the applicant had told him about his offending conduct, he did not provide any material which identified the existence of, or the content of any cultural practice about the arranging of marriages. He was well placed to describe such practices. The tenor of his reference is to the contrary of any such practice. He described the applicant’s behaviour towards his children as “… strict and cruel …”. He described his own reaction upon hearing the news of the applicant being charged with these offences as being “in disbelief and awe”. These statements are inconsistent with the existence of a contemporaneous cultural practice of a father arranging marriages for his children who were aged 15 and 17 years respectively.

11. [11]

    In the written submissions to the sentencing Judge, counsel for the applicant did not identify or articulate any finding of fact for which he contended as to the existence of, or the content of, any “cultural practice”. Other than drawing attention to what the applicant had told Ms Allaw during her consultation, as contained in her report, counsel did not identify the evidence which established any “cultural practice”.

12. [12]

    In oral submissions to the sentencing Judge, counsel for the applicant drew attention to the agreed fact, which is referred to above, and submitted that “… these cultural practices which are tightly held …”, was a feature of the applicant’s subjective attitude to the offending.

13. [13]

    Grounds 2 and 4 of the proposed appeal call up the description “… a cultural practice in the Pakistani community …”. The applicant’s submissions to this Court use this description:

14. [14]

    The grounds of appeal and the submissions use these descriptions to advance a basis for reduction of the applicant’s moral culpability, which it was said was erroneously considered by the sentencing Judge.

15. [15]

    But, in the circumstances here, when any such cultural practice was not found to exist as a matter of fact by the sentencing Judge, and was not, in any event, a finding sought by the applicant at sentence, and was not supported by any independent evidence of the existence of such a practice, there can be no possible criticism of the sentencing Judge’s approach to the sentence imposed here.

16. [16]

    It is unnecessary for me to express any view as to the correctness of the decision of the Victorian Court of Appeal in Jan v Director of Public Prosecutions (Cth) [2025] VSCA 43 which I note was a majority decision.

17. [17]

    As well, it is undesirable for me to do so in circumstances where counsel for the applicant on the appeal in this Court made submissions which could not be described as anything other than flimsy, attacking the correctness of the majority judgment in Jan, without even drawing this Court’s attention to the detailed reasoning of the dissenting judgment of Boyce JA.

18. [18]

    Finally, I accept the Crown’s submission that having regard to the fact that Traill DCJ did take the applicant’s expressed attitude to the arrangement of marriages for his children as an ameliorating factor in the assessment of the applicant’s moral culpability, there is no need for this Court to express any view as to the correctness of the decision in Jan.

19. [19]

    SWEENEY J: The applicant will be referred to as MAB, in accordance with s 15YR of the Crimes Act 1914 (Cth) (“Crimes Act 1914”), to preclude identification of his children who were the victims of his offences. He seeks leave to appeal against sentences of imprisonment imposed upon him by her Honour Judge Traill in the District Court on 4 October 2024 for two offences of attempting to cause a person under the age of 18 to enter into a forced marriage, contrary to ss 270.7B(1), 270.8 and 11.1(1) of the Criminal Code (Cth). Each such offence, being the aggravated form of the offence, has a maximum penalty of 9 years imprisonment. The victims of the attempted forced marriages were the applicant’s 17 year old son and 15 year old daughter.

20. [20]

    For the offence in relation to the applicant’s son, the sentence, which incorporated a 25% discount for a plea of guilty, was 2 years and 3 months imprisonment, commencing on the date of sentence, 4 October 2024. For the offence in respect of his daughter, the sentence was 2 years and 6 months imprisonment, to commence on 4 August 2025. It also incorporated a 25% discount for the applicant’s plea of guilty. The overall effective sentence was 3 years and 4 months imprisonment. Her Honour fixed a single non-parole period of 1 year and 11 months, to expire on 3 September 2026, the overall sentence being due to expire on 3 February 2028.

Grounds of appeal

1. [21]

   The applicant seeks to rely on five grounds of appeal:

   1. (1)

      “The learned District Court Judge Traill DCJ erred in misapplying the principle of stare decisis in purporting to follow a decision of the Victorian County Court in CDPP v Jan [2024] VCC 1122 (29 July 2024) when the District Court of New South Wales is and was neither inferior to the Victorian County Court nor in the same jurisdiction and so was not bound by the principle of stare decisis to follow or otherwise take into account or be influenced by such decision of the Victorian County Court.

   2. (2)

      The learned District Court Judge Traill DCJ erred in misapplying the principle in s. 16A(2A) of the Crimes Act 1914 (Cth) by failing to take into account relevant evidence of the acceptability of the appellant’s conduct as a cultural practice in the Pakistani community in assessing the moral culpability of the appellant.

   3. (3)

      The learned District Court Judge Traill DCJ erred in misapplying principle in failing to have proper or sufficient regard for the principles in Muldrock (Muldrock v The Queen (2011) 244 CLR 120) and how they apply to the assessment of moral culpability.

   4. (4)

      The learned District Court Judge Traill DCJ erred in failing to take into account a relevant consideration, including the acceptability of the appellant’s conduct as a cultural practice in the Pakistani community in imposing a sentence on the appellant.

   5. (5)

      The learned District Court Judge Traill DCJ erred in failing to take into account a relevant consideration, namely failing to give any or any sufficient weight to the Pre-Sentence report in imposing a sentence on the appellant.”

Procedural timeline

1. [22]

   Judge Traill heard the sentence proceedings on 28 June 2024. Her Honour adjourned until 23 August 2024 to sentence the applicant. On that day the transcript records that her Honour had identified that the Victorian County Court had delivered a sentencing judgment in the matter of Commonwealth Director of Public Prosecutions v Jan [2024] VCC 1122 (“CDPP v Jan”) on 29 July 2024, for an offence of causing a person to enter a forced marriage, and had sought submissions from the parties about that decision. The representative of the Commonwealth Director of Public Prosecutions (CDPP) urged caution in her Honour regarding the County Court decision as a kind of guidepost or yardstick in relation to sentencing the applicant. The applicant’s then solicitor agreed with the Crown’s submission. Her Honour adjourned the proceedings further and sentenced the applicant on 4 October 2024.

2. [23]

   On 21 March 2025 the Court of Appeal of the Supreme Court of Victoria delivered judgment in Jan v Director of Public Prosecutions (Cth) [2025] VSCA 43 (“Jan v CDPP”), being an appeal from the County Court’s sentencing of Ms Jan.

3. [24]

   The applicant’s Notice of Appeal was filed on 16 July 2025.

Remarks on Sentence

1. [25]

   In the Remarks on Sentence her Honour noted the following.

2. [26]

   The offences occurred between 11 December 2021 and 4 February 2022. The applicant was 51 years of age and came to Australia from Pakistan in 2007. He is the natural father of the victims. He attempted to force his two children, his son aged 17 years and his daughter aged 15 years, into Islamic marriages.

3. [27]

   The children were born in Pakistan and remained living with their mother in Pakistan after the applicant came to Australia in 2007. In December 2017 the children came to Australia to be with their father. Their presence in their father’s home caused conflict between him and his new wife and the children returned to their mother in Pakistan.

4. [28]

   The children returned to Australia on 11 December 2021 to live with the applicant and his family. On arrival the applicant searched their bags, and took their passports, visa documents and mobile phones. Their contact with relatives was supervised. Otherwise they were not allowed to make phone calls or send messages. The applicant’s son secretly retained a SIM card.

5. [29]

   The children were told they were not allowed to leave the applicant’s home in rural New South Wales. His daughter was not permitted to attend school; she was to remain at home to cook and clean.

6. [30]

   The applicant told his son he was arranging a wedding for him. The applicant showed his son a photo of the intended bride and took him to buy clothes to wear in photographs to arrange the marriage. Neither child consented to marriage and they told the applicant they did not want to marry. The applicant threatened to deport them if they did not marry.

7. [31]

   On 26 December 2021 the applicant’s nephew, aged 20, came to live with the applicant’s family. On 15 January 2022 the applicant took the children to a venue where they were photographed. The applicant sent photos to his nephew’s parents suggesting an arranged marriage between his nephew and his daughter. The nephew’s parents did not agree to the marriage so the applicant’s nephew left his home.

8. [32]

   The applicant continued to attempt to arrange marriages for both his children. He sent pictures and messages to his sister asking for her assistance to arrange his daughter’s marriage. He made multiple calls to his sister and sent messages asking for photos of the intended bride for his son. He said he wanted to arrange the wedding directly. He said he wanted his children to marry into his clan. He spoke ill of his ex-wife and her sister and said he did not want her to match the children.

9. [33]

   The applicant also spoke to his aunt’s daughter in an attempt to marry his daughter to her son. He sent his aunt’s daughter the photos taken of his daughter. He received images from his aunt’s daughter of a young man in a chemist store.

10. [34]

    In late January/early February 2022 the applicant told his daughter that she would be the first to be married and that her prospective husband was running a chemist store in Pakistan. He told her that the Muslim religious ceremony would take place in early February 2022.

11. [35]

    Fearing imminent marriage the applicant’s children used a mobile phone belonging to a half-sibling, when it was left unattended, to contact relatives in Pakistan. They told them of the imminent marriages. They were told not to consent to any arranged marriage and to go straight to the police.

12. [36]

    On 3 February 2022 the applicant travelled to Melbourne. In the early hours of 4 February his children packed their belongings, found their passports, broke out through a window, made their way to the airport and flew to Sydney where they went to a police station at Mascot.

13. [37]

    On 16 February 2022 police obtained the applicant’s phone, which contained messages relating to the arranged marriages. The applicant was interviewed and said he considered it the duty of a Punjabi father to arrange the marriage of his children.

14. [38]

    Her Honour noted that when forced marriage offences were introduced into the Criminal Code (Cth) in 2013, the Honourable Nicola Roxon said:

15. [39]

    Her Honour assessed the offences as objectively very serious, arising from the applicant’s attempt to force his two children to enter into Islamic marriages over a period of two months, that they did not consent and could not consent to marriage given their ages. Her Honour noted that the children were threatened that if they did not agree to marriage they would be sent back to Pakistan. They were young, vulnerable and spoke little English. The applicant was in a position of trust and authority. Both children were under 18 at the time, and the applicant’s daughter was also below the age of consent to sexual intercourse, and for that reason the offending against her was more serious.

16. [40]

    Her Honour took into account that the applicant exercised a degree of control and coercion over the children by taking their passports and visas, taking their phones, forbidding them to leave the home without his permission, denying them access to money and searching their belongings. He also psychologically manipulated them by threats to deport them if they did not agree and giving them no access to schools or education. Her Honour noted that the applicant manipulated the children into dressing up and posing for photographs to send to prospective spouses, and prospective spouses for both children were identified. His daughter’s marriage was arranged to take place at a friend’s house. Her Honour found that the applicant exercised a large degree of control over his children and but for their escape the marriages would more likely have gone ahead. A message to the applicant’s aunt said that his daughter’s marriage would happen in one or two days. Her Honour found the applicant did not cease his offending of his own volition.

17. [41]

    Her Honour took into account that the children were extremely vulnerable. They were in a foreign country, spoke little English, did not attend school, were in a rural town, had no money and were unable to read, write or speak English fluently. They were heavily reliant upon their father and his current wife, who did not like them. They needed the assistance of relatives in Pakistan to escape.

18. [42]

    The applicant’s daughter said in a Victim Impact Statement that her father attempted to force her and her brother to be married without consent and they were not allowed to contact their mother, their father prevented them from returning to Pakistan and she was not allowed to go to school. They have no family in Australia and they lived in a refuge for homeless children after their escape.

19. [43]

    In respect of contrition, her Honour noted the applicant did not give evidence. He wrote a letter of apology to the Court and his children. He said he had come to realise his actions were wrong but in a Pre-Sentence Report dated 7 February 2024 he was recorded as having denied taking his children’s passports and phones, denied not sending his daughter to school and denied that his children did not want to be married. He minimised his offending and blamed his children and his ex-wife. From a second Pre-Sentence Report dated 21 June 2024 her Honour said she had little confidence that the applicant understood the gravity of his offending or demonstrated true contrition and remorse.

20. [44]

    Her Honour noted the applicant’s pleas of guilty and that the utilitarian value of the pleas warranted a discount of 25%, but found that his pleas said “little of his remorse and contrition”.

21. [45]

    Relevant to appeal grounds 2, 3 and 4, her Honour noted that the applicant stated that “he was following the custom of his village to arrange marriages for his children but he did not turn his mind to the fact they were forced marriages”. Her Honour also noted that the applicant’s communications indicated one motivation was to punish his first wife and marry the children into his family, not hers.

22. [46]

    Her Honour stated:

23. [47]

    Her Honour noted that the applicant is married to his third wife and they have five dependent children aged between 1 and 12 years.

24. [48]

    Referable to appeal ground 1, her Honour referred to the decision of the County Court of Victoria in CDPP v Jan, delivered on 29 July 2024, and said “That decision is not binding on this court” and “The circumstances of that case are very different to the current case.” Her Honour said:

25. [49]

    Her Honour stated:

26. [50]

    Her Honour stated that a substantial degree of accumulation between each sentence was warranted.

Ground (1)

1. [51]

   Counsel for the applicant submitted that Judge Traill erred in adjourning the sentencing of the applicant to wait for and consider the pending decision of the Victorian County Court in CDPP v Jan, and by appearing to be influenced by that decision.

2. [52]

   As the sequence of events described at paragraph [22] above and her Honour’s Remarks on Sentence extracted at paragraph [48] show, those asserted events did not happen. Ground 1 appears to ignore the transcripts of the sentence proceedings and the Remarks on Sentence. It is not made out.

Grounds (2), (3) and (4)

1. [53]

   Counsel for the applicant relied on the evidence in the sentence proceedings of the applicant’s referee, Muhammad Riaz, and the applicant’s statements to psychologist Yusuf Acar that from his cultural upbringing a father arranging his children’s marriages was considered normal.

2. [54]

   Counsel departed from Ground 2 in oral submissions, accepting that Judge Traill referred in her reasons to the evidence about the cultural practice of arranged marriages and did not ignore it. He submitted that the question was the interpretation of s 16A(2A) of the Crimes Act 1914 and its application to that evidence.

3. [55]

   He submitted that an accepted cultural practice which caused the applicant to not recognise that his offending conduct was wrong was relevant to the assessment of his moral culpability in this case.

4. [56]

   He submitted that when Judge Traill said:

5. [57]

   He submitted that moral culpability is assessed separately from the objective seriousness of an offence for the purpose of s 16A(2A) of the Crimes Act 1914, and the assessment of moral culpability is affected by cultural factors, which are part of an offender’s subjective factors. He submitted that s 16A(2A) is limited to the consideration of the objective seriousness of the offending conduct.

6. [58]

   He submitted that when the Victorian Court of Appeal stated in Jan v CDPP at [41], in relation to s 16A(2A), that “Parliament intended that cultural background, customary law and cultural practice be irrelevant to the adjudication of the seriousness of any federal offence, both objectively and subjectively” that that was erroneous, and inconsistent with the High Court’s decision in Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 (“Muldrock”) at [27], and Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 (“Markarian”) wherein the Court said that the sentencer must take into account all relevant considerations.

7. [59]

   Counsel relied on [27] of Muldrock, where the Court said:

8. [60]

   Counsel submitted that as a consequence of the errors made by the sentencing judge the sentence imposed was manifestly excessive.

9. [61]

   The Court was assisted by submissions by Senior and Junior Counsel for the CDPP.

10. [62]

    The applicant’s submission that when Judge Traill said she was reducing the applicant’s moral culpability she was increasing it and treating the identified factors as aggravating factors must be rejected as having no foundation in fact. The remaining submissions by counsel for the applicant in support of grounds 2 to 4 must also be rejected, having regard to the decision of the majority of the Victorian Court of Appeal (Emerton P and Taylor JA) in Jan v CDPP in its consideration of s 16A(2A) of the Crimes Act 1914.

11. [63]

    Section 16A(1) of the Crimes Act 1914 requires a court to impose a sentence of a severity appropriate in all the circumstances of the offence. Section 16A(2) requires the court to take into account such of the matters listed in the sub-section as are relevant and known to the court. Section 16A(2A) provides:

12. [64]

    Section 16A(2B) defines “criminal behaviour” in s 16A(2A), to include:

13. [65]

    In Jan v CDPP Emerton P and Taylor JA said:

14. [66]

    In those paragraphs their Honours made clear that the statement in Muldrock on which the applicant sought to rely is referable only to standard non-parole periods and not “of broader import”, and that s 16A(2A) is not limited to a consideration of the objective seriousness of an offence.

15. [67]

    Senior Counsel for the CDPP submitted that if Judge Traill’s statement “I do, however, accept that the offender’s moral culpability is reduced somewhat”, was to be understood as departing from the approach taken by the majority in the Court of Appeal’s decision in Jan v CDPP then it was an error which favoured the applicant. The CDPP submitted that this Court should take an approach consistent with the approach of the Victorian Court of Appeal.

16. [68]

    It is well recognised that to achieve consistency in sentencing federal offenders throughout Australia this Court should follow decisions of intermediate appellate courts in other States and Territories unless there is a compelling reason to not do so: Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45; The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39; Landlease Corporation Ltd v Pallas [2025] HCA 19; (2025) 99 ALJR 834 at [109] (as to the preferable term of “compelling reasons” in place of the previously used “plainly wrong”); followed in Moriarty v Nye (2024) 114 NSWLR 560; [2024] NSWCCA 116 at [156]-[159] and Chief Commissioner of State Revenue (NSW) v Uber Australia Pty Ltd [2025] NSWCA 172 at [382].

17. [69]

    We were informed that the Victorian Court of Appeal decision in Jan v CDPP is the only intermediate appellate consideration of s 16A(2A) of the Crimes Act 1914. It is a reasoned decision. The applicant has not demonstrated compelling reasons why this Court should not follow the decision of the majority of the Court of Appeal.

18. [70]

    Grounds 2, 3 and 4 are not made out.

Ground (5)

1. [71]

   The applicant submitted that her Honour Judge Traill failed to take into account the recommendation in the Pre-Sentence Reports that the applicant was suitable for a Community Corrections Order (CCO).

2. [72]

   Her Honour referred to the requirement of s 17A of the Crimes Act 1914 that a court shall not pass a sentence of imprisonment in respect of a federal offender unless, having considered all other available sentences, the court is satisfied that no other sentence is appropriate in all the circumstances of the case.

3. [73]

   Her Honour noted the submission on behalf the applicant that a non-custodial penalty was appropriate, that a CCO should be imposed and was a suitable punishment in all the circumstances. Her Honour referred to the maximum penalty for each offence, her assessment that the offending was not of a low level but was in the mid-range of seriousness, and having considered all the circumstances, decided that only a sentence of imprisonment was appropriate.

4. [74]

   No error has been demonstrated in that decision by her Honour. A CCO for the offending her Honour described would have been an inadequate sentence.

5. [75]

   Ground 5 is not made out and should be dismissed.

6. [76]

   I have considered the merits of the applicant’s appeal, although it lacked any merit. However, in the interests of finality, I would grant leave to appeal. I would dismiss the appeal.

Orders

1. [77]

   Therefore I propose the following orders:

   1. (1)

      Grant leave to appeal.

   2. (2)

      Dismiss the appeal.