R v A2; R v Magennis; R v Vaziri (No. 24)

1. [1]

   JOHNSON J: On 18 March 2016, I delivered my sentencing remarks with respect to these Offenders: R v A2; R v Magennis; R v Vaziri (No. 23) [2016] NSWSC 282.

2. [2]

   For the reasons contained in those remarks, I sentenced each Offender to an aggregate sentence of imprisonment of 15 months with a non-parole period of 11 months. Each Offender was referred for an assessment as to suitability for home detention. The proceedings were adjourned to 22 April 2016 to allow those assessments to be made and for the Court to consider matters pertinent to the making of final orders on sentence. The sentences of imprisonment were stayed in the meantime.

3. [3]

   The Court was asked by relevant officers within Corrective Services NSW to allow more time for the home detention assessments and the proceedings were further adjourned until 20 May 2016 for that purpose.

4. [4]

   On 6 May 2016, the Crown sought an opportunity to make further submissions on aspects bearing upon sentence. The Court made orders for the filing and service of submissions and other material by the parties in advance of the scheduled resumed hearing on 20 May 2016. On that day, the Court heard further submissions from the parties and adjourned the proceedings, which came before the Court for further submissions on 3 June 2016. Further time was sought by senior counsel for the Offender Vaziri to advance submissions and the proceedings were adjourned until yesterday to conclude the hearing.

Further Issues Raised by the Crown

1. [5]

   The Crown sought to raise three issues on sentence:

2. [6]

   Senior counsel for the Offenders objected to the Crown being heard further on these matters, and to the tender of the further material. He contended that, if the Court was minded to allow the Crown to rely upon the additional material, an adjournment would be sought to allow the Offenders to adduce further evidence on this topic.

3. [7]

   Given the need to progress the matter (in the context of a trial at which I was then presiding), I approached the issues in contest at the resumed hearing on 20 May 2016 upon the basis that, if the additional material was to be admitted and any Offender faced the prospect of an outcome more adverse to the position as it stood on that day, then an opportunity would be provided for that Offender to be heard further if considered appropriate.

4. [8]

   On 31 May 2016, the parties were informed by email that the Court proposed to admit the additional material and that the Offender Vaziri was in a position where he faced the prospect of a less favourable outcome, so that an opportunity would be provided for him to be heard on relevant matters. That occurred on 3 and 8 June 2016. Further evidence was adduced yesterday in his case and submissions made on issues which are presently relevant.

Whether Further Submissions and Additional Evidence May Be Received At This Point in the Proceedings

1. [9]

   It was submitted for the Crown that the issues sought to be raised at this point in the proceedings were open to be considered by the Court before the conclusion of the matters by the making of final orders on sentence.

2. [10]

   It was submitted for the Offenders that the Court was functus officio and that principles of abuse of process may be called in aid so that the Crown should not be permitted to adduce evidence and advance further submissions. If the Court was to permit the Crown to take these steps, it was argued for the Offenders that the submissions advanced by the Crown should be rejected on the merits in any event.

3. [11]

   I am satisfied that it is open to the Crown to ventilate these matters at this point in the proceedings. Although the Court has imposed a term of imprisonment with respect to each Offender, those sentences have been stayed and the Court is considering whether it is appropriate to order that each of the sentences be served by way of home detention. An assessment report with respect to each Offender was sought.

4. [12]

   Of course, it is not open to the Court to re-open or alter the term of the sentence imposed. The remaining live question is whether or not the sentence should be served by way of home detention.

5. [13]

   Even if a favourable home detention assessment is furnished for the purpose of ss.78(2)(a), 80 and 81 Crimes (Sentencing Procedure) Act 1999, the Court is to exercise discretion to determine whether imprisonment by way of home detention is actually ordered. The Court is not merely “rubber stamping” the assessment report to order home detention.

6. [14]

   A number of provisions in the statutory scheme makes this clear. Section 78(1)(b) Crimes (Sentencing Procedure) Act 1999 provides that a “home detention order may not be made with respect to an offender’s sentence of imprisonment unless the court is satisfied … that it is appropriate in all the circumstances … that the sentence be served by way of home detention”.

7. [15]

   Section 78(3) provides as follows:

8. [16]

   Section 78(7) provides:

9. [17]

   In R v Jurisic (1998) 45 NSWLR 209, Sully J observed, at 249-250, that there are three stages involved where the Court is considering whether a sentence of imprisonment may be served by way of home detention:

10. [18]

    Sully J stated (at 250) that what his Honour had said concerning the discretionary exercise involved in the second stage applied “mutatis mutandis to the exercise of this further discretion” involved in the third stage. The Court should keep in mind, at each of the second and third stages, that the making of an order for home detention will involve “a significant watering down” of the sentence of imprisonment and “a significant diminution in the effectiveness of the sentence in terms of proper retribution; of proper personal deterrence; and of proper general deterrence”.

11. [19]

    Spigelman CJ observed in R v Jurisic (at 215) that the third stage involves the exercise of the “ultimate discretion” as to whether to make an order for home detention.

12. [20]

    Factors which bear upon the discretionary sentencing exercise are relevant to the third stage. Of course, the sentence of imprisonment has already been quantified and announced. The exercise of discretion at the third stage is directed solely to the question whether imprisonment should, or should not, be served by way of home detention.

13. [21]

    As Spigelman CJ observed in R v Jurisic (at 215), a home detention order “should only be made if the sentencing judge is satisfied that the term of imprisonment, so served, is the appropriate sentence in the sense that it reflects the criminality of the conduct in the circumstances of the case”.

14. [22]

    In the senses described by Spigelman CJ and Sully J in R v Jurisic, the process of instinctive synthesis involved in sentencing is not complete: cf Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373-378 [36]-[53]. The formation of the “value judgment”, involved in determining an appropriate sentence, is not complete until final orders are made as to whether a sentence of imprisonment is to be served by way of home detention: cf Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 131-132 [26].

15. [23]

    In my view, it is open to the Crown to make submissions of the type foreshadowed at this point of the proceedings. The Court has yet to exercise the ultimate discretion in sentencing the Offenders, by way of the decision whether the sentences should, or should not, be served by way of home detention.

16. [24]

    This extends to the adducing of evidence and the making of submissions concerning the role of general deterrence on sentence, an issue which is relevant to each of the first, second and third stages referred to by Spigelman CJ and Sully J in R v Jurisic.

Whether s.45 Crimes Act 1900 Offences are Excluded from the Home Detention Statutory Scheme

1. [25]

   Section 76 Crimes (Sentencing Procedure) Act 1999 is in the following terms:

2. [26]

   In R v A2; R v Magennis; R v Vaziri (No. 23), I said at [173]:

3. [27]

   The Crown submits that offences under s.45 Crimes Act 1900 fall within s.76(b) or (e) so that home detention is not an available sentencing option with respect to the Offenders. It is submitted that the female genital mutilation (“FGM”) offences of the Offenders constitute a form of “sexual assault of … children or sexual offences involving children” so as to fall within s.76(b) or “assault occasioning actual bodily harm” within s.76(e).

4. [28]

   It was submitted for the Offenders that offences under s.45 Crimes Act 1900 do not fall within either of these categories of prohibited offences.

5. [29]

   The provisions now contained in s.76 Crimes (Sentencing Procedure) Act 1999 were originally enacted in s.6 Home Detention Act 1996. The current provision is identical to the original s.6 in the 1996 Act.

6. [30]

   The NSW Law Reform Commission has noted that no explicit rationale for these offence exclusions was put forward at the time of introduction of the original Home Detention Act 1996, nor at the time of the replication of its provisions in s.76 Crimes (Sentencing Procedure) Act 1999: NSW Law Reform Commission, Report 139, Sentencing, 2013, paragraph 9.31.

7. [31]

   The question for determination is whether, as a matter of statutory construction, offences under s.45 Crimes Act 1900 (and of being an accessory after the fact to a s.45 offence) are excluded by the terms of s.76.

8. [32]

   In approaching this question of construction, I have kept in mind the principles stated by McClellan CJ at CL and myself (Price, RA Hulme and Button JJ agreeing) in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 at 67-68 [38]-[40]:

9. [33]

   The legislature utilised in s.76 a mixture of general descriptions of conduct, and references to offences by section number in identifying the offences which were excluded from the home detention scheme.

10. [34]

    It should be noted that the legislature had created the offence under s.45 Crimes Act 1900 in 1994. Accordingly, this offence existed in the Crimes Act 1900 at the time when the Home Detention Act 1996 was enacted by Parliament. Section 45 offences were not expressly included in the exclusion provision.

11. [35]

    I do not accept the Crown submission that s.45 offences (including the Offenders’ s.45 offences) fall within s.76(b) of the Act. It may be contended that s.76(b) is intended to capture all offences in Division 10 of Part 3 of the Crimes Act 1900. That Division is entitled “Offences in the nature of rape, offences relating to other acts of sexual assault etc”. Division 10 contains conduct and offences provided for in ss.61H-80A Crimes Act 1900. Offences under s.45 do not lie within Division 10 of Part 3 of the Crimes Act 1900. Nor do I consider that the conduct prohibited by s.45 falls within the description of s.76(b).

12. [36]

    With respect to s.76(e), the Crown submitted that assault occasioning actual bodily harm was involved in these s.45 offences. I note that s.45 lies within Division 6 of Part 3 of the Crimes Act 1900 entitled “Acts causing danger to life or bodily harm”.

13. [37]

    If the legislature intended to capture offences such as a s.45 offence, it could have done so by specific reference to that provision or a global reference such as “all offences contained in Division 6 of Part 3 of the Crimes Act 1900”. It did not do so. In my view, the reference to “assault occasioning actual bodily harm” in s.76(e) should be construed as a reference to the offence contained in s.59 Crimes Act 1900.

14. [38]

    I am not satisfied that a s.45 offence is accommodated amongst the conduct identified in s.76(e) so as to exclude this particular offence from the home detention scheme. A conclusion that this form of sentence is not available in respect of an offence can be reached only by use of clear words in the relevant statute or by necessary implication, applying the approach to construction referred to in R v Pogson; R v Lapham; R v Martin (at [32] above).

15. [39]

    I remain of the view expressed in my sentencing remarks (see [26] above) that offences under s.45 Crimes Act 1900 are not excluded from the home detention scheme.

The General Deterrence Issue

1. [40]

   In R v A2; R v Magennis; R v Vaziri (No. 23), I observed at [8] that “the unusual and effectively novel circumstances of this case pose questions for this Court not often confronted in sentencing criminal offenders”. What follows will confirm further the unusual issues to be considered in concluding the sentencing process with respect to these Offenders.

2. [41]

   Issues concerning general deterrence were addressed in R v A2; R v Magennis; R v Vaziri (No. 23) at [125]-[141]. As that part of my sentencing remarks makes clear, the issue of edicts (or resolutions) by Trusts administering and managing the affairs of the Dawoodi Bohra community in a range of cities in Australia and elsewhere in the world, played a significant part in my assessment of the role of general deterrence in this case.

3. [42]

   What was also of great importance was the substantial media coverage in India and elsewhere which had noted the issue of these edicts, and their importance to the movement amongst members of the Dawoodi Bohra community, and their supporters, to end the practice of FGM in the form of “khatna” in all Dawoodi Bohra communities.

4. [43]

   It was the Offenders who tendered the Dawoodi Bohra edicts (issued in February-March 2016) on sentence on the issue of general deterrence (Exhibits 7, 8 and 11) : R v A2; R v Magennis; R v Vaziri (No. 23) at [127]ff.

5. [44]

   In addressing the role of general deterrence on sentence in these cases, I said in R v A2; R v Magennis; R v Vaziri (No. 23) at [138]-[141]:

Further Material Bearing on General Deterrence

1. [45]

   As mentioned in R v A2; R v Magennis; R v Vaziri (No. 23) at [132], “Mumbai is the principal centre for the world-wide Dawoodi Bohra community and the place of residence for its religious leader, the 53rd Dai al-Mutlaq, Syedna Mufaddal Saifuddin”.

2. [46]

   The evidence at the trial and on sentence indicated the hierarchical structure of the Dawoodi Bohra religion, with the 53rd Dai al-Mutlaq occupying a position at the apex of the religious organisation. Although the Dawoodi Bohra communities in many cities throughout the world have Trusts or other management structures which have local application, the paramount role of the 53rd Dai al-Mutlaq is apparent.

3. [47]

   Many of the edicts issued by local Dawoodi Bohra Trusts make express reference to the 53rd Dai at-Mutlaq. By way of example, the edict dated 5 March 2016 issued by Anjuman-e-Saifee (New Zealand), a Trust administering and managing the affairs of the Dawoodi Bohra Jamaat of New Zealand, recited the following in the body of the edict (part of Exhibit 11):

4. [48]

   I expressed my conclusion earlier (at [11]-[24]) that the Court may receive evidence at this point of the proceedings concerning general deterrence, which bears upon the exercise of sentencing discretion at the third stage. Accordingly, I admitted the Crown’s additional material into evidence (Exhibit B), together with a further bundle of edicts tendered for the Offenders (Exhibit 12).

5. [49]

   In practical terms, it is understandable that the Crown sought to tender this material which relates to that which was tendered for the Offenders in February and March 2016. The material tendered by the Crown relates to ongoing events in the Dawoodi Bohra community concerning the approach to “khatna” and the role of the edicts which had issued.

6. [50]

   The additional material upon which the Crown relies includes a transcript of part of a sermon delivered by the 53rd Dai al-Mutlaq in Mumbai on 25 April 2016, together with media reports of this sermon, and aspects of it which have given rise to controversy concerning the continuation or cessation of the practice of “khatna” in the Dawoodi Bohra community.

7. [51]

   The translation of the sermon of 25 April 2016 relied upon by the Crown has been carried out by Siddique Panwala, a translator and interpreter who gave evidence at the trial. Mr Panwala impressed as a careful and thorough witness in the area of translation and interpreting. According to Mr Panwala, in the course of the sermon, the 53rd Dai al-Mutlaq said (part Exhibit 8):

8. [52]

   This part of the sermon is somewhat cryptic. However, a clearer understanding of what was said in the sermon may be found in an article published on 29 April 2016 in “The Times of India”, under the headline “Bohra cleric urges female genital mutilation?”. I observe that earlier Indian media articles concerning the edicts had formed part of the defence evidence on sentence (Exhibit 8): R v A2; R v Magennis; R v Vaziri (No. 23) at [132]-[134]. In my view, publicity concerning later events on the topic has continuing relevance to the issue of general deterrence in this case.

9. [53]

   It appears that a substantial proportion of the audience, and of those who have heard the recording of the sermon, have understood what was being said by the 53rd Dai al-Mutlaq to be comments in support of the practice of “khatna”. The 29 April 2016 article states (part Exhibit B):

10. [54]

    A further article published in “The Times of India” on 30 April 2016, under the headline “Clarify on circumcision, Bohras appeal to Syedna”, included the following (part Exhibit B):

11. [55]

    An article published online by Reuters on 29 April 2016, under the headline “Muslim leader in India under fire from activists for supporting FGM”, included the following (part Exhibit B):

12. [56]

    In a further article published on 7 May 2016 in “The Times of India”, under a headline “Rival Syedna denounces female genital mutilation, kindles hope”, reference was made to a statement by Taher Fakhruddin, a claimant to the position of 54th Dai al-Mutlaq. The article recites this cleric’s position as being against the performance of “khatna” on children, but in favour of the maintenance of the practice once girls reach legal adulthood. The article includes the following (part Exhibit B):

13. [57]

    Accordingly, there appears to be controversy arising from the sermon of the 53rd Dai al-Mutlaq on 25 April 2016 (which is said to support the practice of “khatna”), the view of the rival claimant to the position of 54th Dai al-Mutlaq (which favours the practice of “khatna” in adult women) and the broad movement throughout the Dawoodi Bohra community which seeks to end the practice of “khatna” upon girls or women of any age.

14. [58]

    The position is further complicated by the fact that recent edicts issued in different cities in May 2016 invoke the sermon of the 53rd Dai al-Mutlaq on 25 April 2016. The edict issued by the Anjuman-e-Burhani (Toronto) on 14 May 2016 included the following (part Exhibit 12):

15. [59]

    The edict issued by the Anjuman-e-Burhani (Seattle) on 9 May 2016 was expressed in different terms and included the following (part Exhibit 12):

16. [60]

    The reference to “press reports” in this passage may be taken to be references to the articles reproduced at [53]-[55] above.

17. [61]

    I have kept in mind that the edicts which have issued apply in jurisdictions where the criminal law prohibits FGM, and thus the practice of “khatna”. The Court was informed that the practice of FGM (including “khatna”) is not expressly prohibited by the criminal law in India.

18. [62]

    At the resumed hearing yesterday, senior counsel for the Offender Vaziri read an affidavit sworn on 8 June 2016 of Dr Mustafa Ebrahim Abdulhussein (Exhibit 14). Dr Abdulhussein was cross-examined on his affidavit. Dr Abdulhussein, who resides in the United Kingdom, has been closely involved in the issue of the edicts in Dawoodi Bohra communities since February 2016. He is authorised by the Dawat-e-Hadiyah (the Administration of the 53rd Dai al-Mutlaq) to speak on behalf of the Dawoodi Bohra religion pertaining to issues arising from the present criminal proceedings.

19. [63]

    Dr Abdulhussein’s evidence indicates that:

20. [64]

    Similar articles referring to the press release were published electronically in “The Times of India”, “India Today” and “Business Standard” on 6 June 2016. The article in “The Times of India” under a headline “Female circumcision: Syedna favours respecting local laws” stated:

The Role of General Deterrence in the Present Proceedings

1. [65]

   The relevance of these recent developments, including the sermon on 25 April 2016, is that there is a degree of tension between ongoing adherence to “khatna” upon young girls in Dawoodi Bohra communities (expressed at the highest religious level) and the issue of edicts urging compliance with local anti-FGM laws.

2. [66]

   What is now clear, in light of the evidence of Dr Abdulhussein, is that there is continuing religious adherence to the practice of FGM, in the form of “khatna” upon young girls, unless the practice is expressly prohibited by local criminal law. The question whether the practice constitutes an assault under the general criminal law or may be inconsistent with child protection laws, does not appear to have been considered. It is only in places where FGM is expressly prohibited that edicts have issued.

3. [67]

   It is the case that the paramount figure in the Dawoodi Bohra religion has expressed support for the continued practice of “khatna”. The clarification, as a result of the press release of 6 June 2016, states that this does not detract from the need to comply with local resolutions or edicts in places where FGM is specifically outlawed. A consequence of this may well be that, given the hierarchical nature of the religion, Dawoodi Bohra followers may feel inclined to continue the ancient practice of “khatna” on young girls despite the existence of edicts in their local communities.

4. [68]

   These recent developments must be considered in light of the assumption which I was prepared to make in R v A2; R v Magennis; R v Vaziri (No. 23) at [141] (see [44] above). The evidence now explains the need for laws in individual jurisdictions which prohibit FGM expressly, otherwise members of the Dawoodi Bohra community will be expected to comply with the religious requirement favouring the performance of “khatna” on young girls.

5. [69]

   The principle of general deterrence extends not just to members of the Dawoodi Bohra community who may be minded to practice “khatna”, but to other communities in New South Wales who may undertake FGM. I do not accept the Crown’s contention (at [5](c) above) that the focus of the Court’s approach to general deterrence in this case was too narrow.

6. [70]

   General deterrence, of course, operates prospectively. The principle recognises that persons who may be minded to offend in this way will be conscious of the penalty which will likely await them if they do so. In this respect, I should repeat what was said at the conclusion of my sentencing remarks in R v A2; R v Magennis; R v Vaziri (No. 23) at [214]:

7. [71]

   Persons who may place themselves in the position of the Offender A2 and the Offender Magennis, should be aware that the trebling of the maximum penalty for offences under s.45 Crimes Act 1900 (to imprisonment for 21 years) leads to a conclusion that a significant term of full-time imprisonment is the almost inevitable penalty for offences of this type committed in New South Wales since 2014. The role of general deterrence, in the sentencing of the Offender A2 and the Offender Magennis, must be considered in light of this substantial increase in maximum penalty.

8. [72]

   However, the maximum penalty applicable to the Offender Vaziri, as an accessory after the fact to the s.45 offences, is imprisonment for five years: s.350 Crimes Act 1900. The increase in the maximum penalty for s.45 offences does not apply to the position of persons who are accessories after the fact to those offences. The maximum penalty under s.350 remains as it was, at the time of these offences, at imprisonment for five years.

9. [73]

   Accordingly, general deterrence continues to have particular application to the sentencing of the Offender Vaziri, above and beyond its role in the sentencing of the Offender A2 and the Offender Magennis.

10. [74]

    The evidence given at the trial, and knowledge of the practice of “khatna” arising generally in this case, indicates that Dawoodi Bohra women only will be present at the time when “khatna” is performed. A person in the position of the Offender Vaziri, a male religious leader in the community, will not be present at the time of the commission of a s.45 offence.

11. [75]

    The likely criminal involvement of a religious leader such as the Offender Vaziri will be as an accessory after the fact to the offence. That is what happened in this case. The Offender Vaziri sought to deflect the investigation of the s.45 offences over a period of weeks, including urging members of the community not to disclose the true position to police and promoting a false account to be given to police about what happened. Religious leaders who act in this way in the future, if prosecuted as an accessory after the fact to a s.45 offence, will continue to be liable to a maximum penalty of five years’ imprisonment.

12. [76]

    It may be said that male religious leaders in the Dawoodi Bohra community have encouraged the practice of “khatna”. It appears that this was the case until February 2016, when the process commenced of issuing edicts in jurisdictions where FGM was expressly prohibited. Indeed, it appears that the use of “khatna” is still promoted in jurisdictions where there is no express prohibition of FGM.

13. [77]

    The evidence in this case points to ready acceptance of the practice by many female members of the community, including the Offender Magennis and the grandmother of the victims (A5) and their paternal grandaunt (A3), who were present at one or more of the “khatna” procedures: R v A2; R v Magennis; R v Vaziri (No. 23) at [28], [35].

14. [78]

    Female members who seek to have “khatna” performed on their own children (such as the Offender A2 in this case) have themselves experienced “khatna” in their childhood: R v A2; R v Magennis; R v Vaziri (No. 23) at [24], [118]. The generational cycle involved in the practice of ”khatna” has no doubt contributed to the difficulty in stamping out the practice.

15. [79]

    The point of this discussion is that general deterrence has a particular role to play in the sentencing of a male Dawoodi Bohra religious leader, such as the Offender Vaziri, who has acted in defence of the practice of “khatna” in his community. Indeed, any future religious leader of the Dawoodi Bohra community in Sydney who, like the Offender Vaziri, comes from India may have to compromise his primary belief in support of “khatna” with the need to comply with local law.

16. [80]

    Even in Dawoodi Bohra communities where edicts have issued (such as Sydney), there remains a level of tension between adherence to primary religious views favouring “khatna” and compliance with local laws which prohibit the practice.

17. [81]

    Members of the Dawoodi Bohra community should be entitled to turn to their religious leaders for clear and decisive statements condemning the practice of “khatna” upon young girls, and this should have been the position in 2012 when the Offender Vaziri committed these serious offences. General deterrence continues to have a particular application to the sentencing of the Offender Vaziri.

Third Stage of Sentencing - Should Each Sentence of Imprisonment be Served by Way of Home Detention?

1. [82]

   I now move to the exercise of the ultimate discretion with respect to each Offender, where the Court will determine whether or not the sentence of imprisonment in each case should be served by way of home detention.

2. [83]

   In exercising this discretion, the Court has regard to aspects which bear upon the third stage.

3. [84]

   An order for home detention should only be made if the Court is satisfied that the term of imprisonment, so served, is the appropriate sentence, in the sense that it reflects the criminality of the conduct in the circumstances of the case: R v Jurisic at 215. The Court should keep in mind, as well, that a sentence of imprisonment by way of home detention is a substantially less onerous sentence than one involving full-time imprisonment: R v Jurisic at 215, 249-250.

4. [85]

   For reasons expressed earlier in this judgment, offences under s.45 Crimes Act 1900 are not excluded by s.76 Crimes (Sentencing Procedure) Act 1999 from the home detention scheme.

5. [86]

   With respect to the Offender A2, I said in R v A2; R v Magennis; R v Vaziri (No. 23) at [174]-[175]:

6. [87]

   The Offender A2 has been assessed as suitable for home detention.

7. [88]

   The home detention assessment with respect to the Offender A2 required compliance with Clause 21 Crimes (Sentencing Procedure) Regulation 2010, which provides:

8. [89]

   The home detention assessment report dated 16 May 2016 addressed this requirement in the following way:

9. [90]

   Having regard to all objective and subjective factors relevant to the Offender A2 and applicable sentencing principles, I am satisfied that it is appropriate to direct that the Offender A2’s sentence of imprisonment be served by way of home detention.

10. [91]

    Once again, I note my conclusion that offences under s.45 Crimes Act 1900 are not excluded by s.76 Crimes (Sentencing Procedure) Act 1999 from the home detention statutory scheme.

11. [92]

    With respect to the potential use of home detention in the case of the Offender Magennis, I said at R v A2; R v Magennis; R v Vaziri (No. 23) at [181]:

12. [93]

    The Offender Magennis has been assessed as suitable for home detention.

13. [94]

    The home detention assessment report dated 3 May 2016, with respect to the Offender Magennis, confirms that she “has ongoing medical conditions that require her to engage in regular medical engagements in the community to address her diagnosed health issues”.

14. [95]

    Having considered all objective and subjective factors applicable to the Offender Magennis, together with applicable sentencing principles, I consider that the sentence of imprisonment in her case may be served by way of home detention.

15. [96]

    Once again, I note my conclusion that offences of being an accessory after the fact to s.45 Crimes Act 1900 offences are not excluded from the home detention statutory scheme.

16. [97]

    In determining that the Offender Vaziri should be referred for home detention assessment, I said in R v A2, R v Magennis; R v Vaziri (No. 23) at [189]:

17. [98]

    The home detention assessment report dated 13 May 2016 with respect to the Offender Vaziri assessed him as being suitable for a home detention order. The assessment report noted that, if such an order was made, the Offender Vaziri would be absent from the home to attend medical appointments and to undertake exercise activity. The Offender Vaziri has some health issues: R v A2; R v Magennis; R v Vaziri (No. 23) at [99]-[100]. However, his health difficulties are not anywhere as substantial as those of the Offender Magennis.

18. [99]

    In exercising the ultimate discretion as to whether home detention should be utilised in the case of the Offender Vaziri, I have kept in mind the description of his offences in R v A2, R v Magennis; R v Vaziri (No. 23) at [72]-[75]:

19. [100]

    I concluded that the accessorial offences of the Offender Vaziri were of “considerable objective seriousness” (at [77]). Before moving to express these conclusions, I had set out a more detailed account of the Offender Vaziri’s criminal conduct in R v A2; R v Magennis; R v Vaziri (No. 23) at [40]-[57].

20. [101]

    Courts in this State have been critical of the fact that s.350 Crimes Act 1900 provides for a maximum penalty of five years’ imprisonment in the case of an accessory after the fact to a serious indictable offence not otherwise provided for in ss.347A-349 Crimes Act 1900. This maximum penalty applies despite the wide range of higher maximum penalties which attach to the primary offences for which the person has been an accessory after the fact. The five-year maximum penalty under s.350 has been criticised in the context of sentencing an accessory after the fact to manslaughter: R v Walsh; R v Sharp [2014] NSWSC 111; 142 A Crim R 140 at 142 [3]-[5]; R v Abdulrahman [2007] NSWSC 578; 171 A Crim R 419 at 421 [9]; TT v R [2014] NSWCCA 206 at [8]-[12].

21. [102]

    It has been said (TT v R at [14]-[15]) that an assessment of the objective gravity of offences of being an accessory after the fact to an offence involves an assessment of each case on its facts, and consideration of a number of factors which include, but are not limited to:

22. [103]

    A number of these factors were addressed in my findings set out at [99] above.

23. [104]

    These were not accessorial offences (as is sometimes the case) by a misguided relative of the principal offender, who was presented with an unexpected state of affairs giving rise to an emotional response. The Offender Vaziri acted in a calculated and deliberate way over a period of weeks, directing and managing an approach to the police investigation which was intended to defeat it entirely.

24. [105]

    Of course, what he did not know was that all his telephone conversations were being recorded by investigating police. Rather than defeating the investigation, the Offender Vaziri demonstrated his own accessorial liability for the offences. Although the inevitability of his detection (and that of the principal Offenders) is relevant, it provides no real assistance on sentence in this case. The Offender Vaziri manifested a clear, determined and calculated intention to obstruct the police, so that no successful investigation of the use of “khatna” in his own community could be achieved. The Offender Vaziri acted in this way in an effort to defeat an investigation of FGM offences which are difficult to detect, investigate and prosecute: R v A2; R v Magennis; R v Vaziri (No. 23) at [15].

25. [106]

    I have had regard to the Offender Vaziri’s prior good character in the form of absence of convictions and the contents of the character references tendered on his behalf. I have taken into account the fact that he was removed from his position in the religion in February 2016, although this ought be regarded as an inevitable consequence of the breach of trust involved in his offences. I have kept in mind, as well, the present health difficulties of the Offender Vaziri and the fact that he may be more isolated in custody because of his limited understanding of the English language.

26. [107]

    The Offender Vaziri, as was his right, pleaded not guilty and proceeded to trial. He did not give evidence at the trial. In parts of R v A2; R v Magennis; R v Vaziri (No. 23) concerning issues of remorse, contrition and personal deterrence, I said with respect to the Offender Vaziri at [114]-[117], [122]-124]:

27. [108]

    I do not consider that the Offender Vaziri's letter (referred to at [115] in the preceding paragraph) demonstrates remorse on his part. He has not provided evidence that he has accepted responsibility for his actions, nor has he acknowledged any injury caused by his actions: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999.

28. [109]

    I remain of the view that steps taken, in and after February 2016, to issue edicts to Dawoodi Bohra communities were not personally driven by the Offender Vaziri.

29. [110]

    I have sentenced the Offender Vaziri to an aggregate sentence of the same length as that applying to the Offenders A2 and Magennis. I am conscious that the effective sentence applicable to the Offender Vaziri is a more substantial one given the lesser maximum penalties applicable to his accessorial offences.

30. [111]

    In referring the Offender Vaziri for home detention assessment, I considered it to be relevant that he was an accessory after the fact to the principal offences of the Offenders A2 and Magennis, and that those persons were being referred for such an assessment (see [97] above). The question whether home detention should actually be ordered in his case requires a closer examination of his offences, and of other factors bearing upon sentence in his case.

31. [112]

    It is not a principle of law that an accessory to an offence must always receive a lesser (or less onerous) sentence to that imposed upon the principal offender or offenders. Nor does sentencing an accessory more severely than a principal necessarily create a justifiable sense of grievance: R v Ho [2002] NSWCCA 379; 133 A Crim R 340 at 350 [63].

32. [113]

    I have kept in mind the different offences for which the Offender A2 and the Offender Magennis (on the one hand) and the Offender Vaziri (on the other hand) must be punished. The gravity of the Offender Vaziri’s offences, taken with the other sentencing factors which operate against him, lead me to conclude that use of the substantially less onerous measure of home detention would be wrong in his case.

33. [114]

    For reasons expressed earlier (at [65]-[81]), I consider that general deterrence is a greater factor on sentence in the case of the Offender Vaziri than of the other Offenders. The increase in the maximum penalty for s.45 offences can have a limited effect only in sentencing an accessory after the fact to a s.45 offence. The maximum penalty under s.350 Crimes Act 1900 remains at five years’ imprisonment.

34. [115]

    Further, I accept that a strong message should be sent to male Dawoodi Bohra religious leaders that criminal acts such as those committed by the Offender Vaziri, for the purpose of covering up the performance of “khatna” and deflecting a police investigation of FGM offences, ought be met by sentences of full-time imprisonment. The same strong message should be sent to leaders of other communities where FGM is practised that if they become liable as accessories after the fact to s.45 offences by way of covering up and deflecting police investigations, they too will be met by stern punishment.

35. [116]

    It is the religious leaders within the Dawoodi Bohra community who should be urging their followers to discard the practice of “khatna” and to act in a manner which supports this approach. In the case of the Offender Vaziri, his actions were the opposite to this approach. His words expressed in the unsworn and untested letter of 4 February 2016 (see [107] above), prepared after trial, indicate a luke-warm attitude which does not support a conclusion that the Offender Vaziri himself will urge others to discard the practice of “khatna” now and in the future.

36. [117]

    Having considered the objective and subjective factors relating to the Offender Vaziri’s offences and applicable sentencing principles, I am not satisfied that the term of imprisonment which I have fixed, if served by way of home detention, is appropriate. It would not reflect the criminality of the conduct in the circumstances of the case and having regard to all relevant considerations.

37. [118]

    I am satisfied that the appropriate order, in the case of the Offender Vaziri, is that the sentence of imprisonment be served by way of full-time imprisonment.

38. [119]

    What I have said in these reasons will explain why I have declined to make a home detention order with respect to the Offender Vaziri, despite the existence of a favourable assessment report: s.78(7) Crimes (Sentencing Procedure) Act 1999.

Orders

1. [120]

   With respect to the Offender A2, I note that on 18 March 2016, I imposed an aggregate sentence of imprisonment for 15 months with a non-parole period of 11 months, the execution of which has since then been stayed.

2. [121]

   A2, I confirm the sentence of imprisonment comprising a non-parole period of 11 months commencing on 9 June 2016 and expiring on 8 May 2017 with a balance of term of four months commencing on 9 May 2017 and expiring on 8 September 2017.

3. [122]

   I direct that the sentence of imprisonment is to be served by way of home detention.

4. [123]

   In accordance with the home detention assessment report, I direct the Offender A2:

5. [124]

   With respect to the Offender Magennis, I note that on 18 March 2016, I imposed an aggregate term of imprisonment for 15 months with a non-parole period of 11 months, the execution of which has since then been stayed.

6. [125]

   Kubra Magennis, I confirm the sentence of imprisonment comprising a non-parole period of 11 months commencing on 9 June 2016 and expiring on 8 May 2017, with a balance of term of four months commencing on 9 May 2017 and expiring on 8 September 2017.

7. [126]

   I direct that the sentence of imprisonment be served by way of home detention.

8. [127]

   In accordance with the home detention assessment report, I direct the Offender Magennis to contact forthwith, by telephone, the Corrective Services NSW Community Compliance and Monitoring Group, and the Campbelltown District Office of Community Corrections, for the purpose of commencing the sentence by way of home detention and to proceed directly to the Campbelltown District Office at Minto.

9. [128]

   With respect to the Offender Vaziri, I note that on 18 March 2016, I imposed an aggregate term of imprisonment for 15 months with a non-parole period of 11 months, the execution of which has since been stayed.

10. [129]

    Shabbir Vaziri, I confirm the sentence of imprisonment comprising a non-parole period of 11 months commencing on 9 June 2016 and expiring on 8 May 2017 with a balance of term of four months commencing on 9 May 2017 and expiring on 8 September 2017.

11. [130]

    I decline to order that the sentence of imprisonment be served by way of home detention. The sentence is one of full-time imprisonment.

12. [131]

    In accordance with s.50 Crimes (Sentencing Procedure) Act 1999, I direct that Shabbir Vaziri be released on parole at the expiration of the non-parole period on 8 May 2017.

13. [132]

    Section 83 Crimes (Sentencing Procedure) Act 1999 requires a court which has made a home detention order in relation to an offender sentenced to imprisonment, to ensure that all reasonable steps are taken to explain to the offender (in a language that the offender can readily understand):

14. [133]

    I note that the Offenders A2 and Kubra Magennis are both fluent in English.

15. [134]

    The home detention assessment reports with respect to the Offender A2 and Offender Magennis indicate that the terms and conditions of a home detention order have been explained to each Offender, and each has signed a home detention undertaking to comply with her obligations under the home detention order, in accordance with s.78(d) Crimes (Sentencing Procedure) Act 1999.

16. [135]

    I inform each of you that if there is a breach of your obligations under the home detention order, the State Parole Authority may make an order revoking the home detention order in accordance with ss.166-168A Crimes (Administration of Sentences) Act 1999. A consequence of revocation of the order is that you would be taken into custody to serve the balance of the sentence by way of full-time imprisonment.