CDirector of Public Prosecutions v Jan
[2024] VCC 1122
•29 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02652
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Sakina MUHAMMAD JAN |
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JUDGE: | Dalziel | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2024 | |
DATE OF SENTENCE: | 29 July 2024 | |
CASE MAY BE CITED AS: | CDPP v JAN | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1122 | |
REASONS FOR SENTENCE
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Subject:Criminal Law - Sentencing
Catchwords: Forced Marriage – Jury Trial -
Legislation Cited: Crimes Act 1914 (Cth); Commonwealth Criminal Code
Cases Cited:Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190
Sentence: 3 years’ imprisonment to be released on own recognizance after having served 12 months in custody
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APPEARANCES: | Counsel | Solicitors |
| For the DPP(Cth) | Darren Renton, SC, with Simone Tatas | Commonwealth Director of Public Prosecutions |
| For the Accused | Andrew Buckland | Randles Cooper Lawyers |
HER HONOUR:
1Sakina Muhammad Jan, you have been found guilty of one charge causing a person to enter a forced marriage. The maximum penalty which applies to this offence is 7 years’ imprisonment.[1]
[1]Criminal Code s270.7B(1)
2The Federal government introduced this offence into the Commonwealth Criminal Code in 2013. The then Attorney General said:[2]
Forced marriage places young people at risk, and can result in many harmful consequences including the loss of education, restriction of movement and autonomy, and emotional and physical abuse.
Some critics have asked: 'Won't this just force this underground?' I say to them that it is already underground and it cannot afford to stay that way. As Attorney-General it is my role to make it completely clear that in Australia, marriage must be entered into freely, without duress or constraint.
[2] Second Reading Speech, see Prosecution Submission at [19]
3When the law was amended in 2019, part of the explanatory memorandum said:[3]
Vulnerable young women and girls are disproportionately affected by forced marriage, globally and domestically. Operational experience has shown that perpetrators of these crimes are often the victims’ parents, close relatives, and religious or community leaders who are in a position to exert subtle and prolonged familial, religious and cultural pressure upon victims.
[3] See Prosecution Submission at [24]
4In the United Kingdom forced marriage has been described as “an abuse of human rights … a form of domestic violence that dehumanises people by denying them their right to choose how they live their lives” and as “a scourge, which degrades the victim and can create untold human misery.”[4]
[4] See Prosecution Submission at [21], citing Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190, [17]
5The mischief the law seeks to prevent is not limited to marriage ceremony. I accept that the following passage from the same judgment from the United Kingdom correctly sets out the consequences which a victim of forced marriage may suffer:[5]
The abusive nature of a forced marriage does not begin and end on the day of the marriage ceremony. Rather, the marriage forms the start of a potentially unending period in the victim's life where much of her daily experience will occur without their consent and against their will, or will otherwise be abusive. In particular, the consummation of the marriage, rather than being the positive experience, will be, by definition, a rape. Life for an unwilling participant in a forced marriage is likely to be characterised by serial rape, deprivation of liberty and physical abuse experienced over an extended period. It may also lead to forced pregnancy and childbearing. The fate of some victims of forced marriage is even worse and may include murder, other "honour" crime or suicide.
[5]Re K (Forced Marriage: Passport Order) [2020] EWCA Civ 190, [22] – [24]
Islamic Marriage and Cultural Background
6Ordinarily within the Hazara community, unrelated and unmarried young men and women do not have much social interaction.[6] It is not uncommon for young men and women to enter into a temporary Nikah agreement to allow them to get to know one another.[7] A Nikah is considered to be a marriage, pursuant to Islamic law, and thus when a male and female have taken part in a Nikah, temporary or permanent, they may have interactions which would otherwise be prohibited both by law and custom. They may spend time together and communicate. As the Nikah is a marriage, it is implicit that they may be sexually intimate, which can have consequences for the woman if the Nikah comes to an end. When a woman is divorced she is considered ‘bewa’, which means that she has lost some of her value to her community.[8] This may reflect poorly on the family of a divorced woman.[9] In Hazara culture, a woman’s reputation is important.[10]
[6] T 78.11
[7] T 77.7 – 78.22
[8] T86.25
[9] T87.7
[10] T 325.9
7A temporary Nikah agreement can be made permanent with another permanent Nikah ceremony, it can expire, or the couple can divorce prior to the expiration.
8The ceremonies for both the temporary and permanent Nikahs are similar.[11] Witnesses and family members attend, a religious leader conducts the ceremony, and the parties sign the agreement containing any conditions which have been agreed.[12] These conditions can relate to the expectations and rights of the bride, including giving her a right to initiate a divorce, to work, and to study. If the Nikah is a temporary one, the term of the agreement is set out in the document.
[11] T91.25
[12] T91.25-31
9There is often a large wedding celebration at some time after the permanent Nikah, which may be attended by a wider range of people than the Nikah itself. Whilst under Islamic law the parties to the Nikah are husband and wife, within the culture they may be regarded as engaged, and referred to as fiancés, until the time of the wedding celebration.[13]
[13] T90.4-7
10Generally, it is the role of a young woman’s father to approve her marriage.[14] If the father is absent then perhaps an older brother or grandfather will take the role of giving permission.[15] When the father of a girl is alive he must give permission for her first marriage, but for later marriages the woman does not, under Islamic law, require the permission of anyone. A mother may play a very strong cultural role of advising, influencing, or encouraging the marriage of their children, but she do not generally give permission for a daughter’s marriage.[16]
[14] T83.13
[15] T83.23
[16] T96.8; T96.26
11Often the new husband will provide a ‘Mahriyeh’ of money, gold, or other items of value.[17] This is usually given to the bride.[18] If a Mahriyeh is to be paid, this will be included in the Nikah agreement terms.
[17] T84.29
[18] T85.3
Circumstances of Offending
12When she was around 15, your daughter Ruqia Haidari was married to a man called Hussein, under a temporary Nikah. The engagement lasted for approximately two years, and was ended by divorce. This meant that your daughter Ruqia was considered by your community to be “bewa”.
13Ms Haidari was happy that engagement had ended, and she was excited to finish school. She did not want to get married until she was 27 or 28 years old - she wanted to pursue study and get a job.[19] She did not want to follow the life path experienced by her sisters, rather she was keen to try to expand her life choices.[20]
[19] T264.4
[20] T264.27
14Your family was acquainted with Shukria Muqadas. Ms Muqadas was also a member of the Hazara community in Shepparton and at that time she was a friend of yours.
15Ms Muqadas had been asked by a former neighbour of hers in Pakistan to help her brother, Mohammad Ali Halimi, find a wife.[21] His family still lived in Pakistan, and he lived in Perth.
[21] Pre-recorded evidence transcript 20.14
16Ms Muqadas told Ms Haidari that she knew a man who would like the marry her. Ms Haidari initially had no interest in this. Ms Muqadas, when giving evidence, was verbose and persevering in talking about what she wanted to impress upon the listener. Ms Muqadas was likely persistent in raising the potential marriage with Ms Haidari. After some time Ms Haidari told her that she could discuss the matter with you.[22] Ms Muqadas told you about Mr Halimi’s wish to marry Ms Haidari. You and your family were told that Halimi was religious, he had two jobs and he did not have any bad habits.[23]
[22] Pre-recorded evidence transcript 19.25
[23] Pre-recorded evidence transcript T105.20
First Meeting
17Mr Halimi visited Shepparton on 31 May 2019 to meet with your family. He went to your house on 1 June 2019, where Ms Muqadas introduced him to you, to Ms Haidari, and to the family.
18Part of the trial evidence was a text message on 1 June 2019 from Ms Haidari to the phone of her brother in law (which was also used by Ms Haidari’s sister) The text asked what he or she thought. She received a reply that she should ask for a week to think about it. It is not clear whether this message was sent by Ms Haidari’s brother in law, or his wife.[24]
[24] Exhibit 6, lines 19 and 20
19Following that meeting the family did not involve Ms Muqadas in the discussions or consideration of a marriage between Ms Haidari and Mr Halimi.
20On 2 June 2019 Mr Halimi returned to Perth.
21Also on 2 June 2019, Ms Haidari had a driving lesson with Leo Houlihan. She told him that she was going to be married, and that this was not something she wanted.[25] Mr Houlihan offered to assist, but Ms Haidari did not want him to do anything.[26] Mr Houlihan spoke with his colleague, Ms Patterson, asking her to speak with Ms Haidari.
[25] T126.3-19
[26] T126.21
22Approximately one week after you and Ms Haidari met with Mr Halimi, you told Ms Muqadas you agreed to the marriage.[27]
[27] Pre-recorded evidence 42.18
First Nikah
23Mr Halimi returned to Shepparton, and a temporary Nikah ceremony was held the next night, on 16 June 2019, at your home. This was attended by around 30 people.[28] The presiding Mullah asked both Ms Haidari and Mr Halimi three questions:[29]
(a) How old they were;
(b) Whether they wished to be married; and
(c) Whether the Nikah is temporary or permanent.
[28] T290.26
[29] T237.9
24Ms Haidari and Mr Halimi signed a one year temporary agreement. The agreement allowed Ms Haidari to study, work, and divorce from Mr Halimi.[30] The agreement also included a Mahriyeh of $14,000, to be paid by Mr Halimi.[31]
[30] Exhibit D2 – translated Nikah Agreement
[31] Exhibit D2 – translated Nikah Agreement
25From this point Ms Haidari and Halimi were considered to be engaged, culturally, and married under Islamic law. As I have referred to earlier, the purpose of this temporary Nikah was to enable Ms Haidari and Mr Halimi to communicate, to get to know each-other, so that they could both decide whether they wanted to get permanently married.
26Mr Halimi returned to Perth on 19 June 2019.
27On 24 June 2019 Ms Haidari began her driving lessons with Ms Patterson, whom she already knew.[32] She told Ms Patterson of the engagement, saying that she did not want to marry him, that he was too old, and they had nothing in common. Ms Patterson described it as if Ms Haidari’s wings had been clipped. She said in her evidence:[33]
She – she was quite excited about life, and then, suddenly, she's getting married to somebody that she didn't – didn't know, had nothing in common with, um, she felt was too old for her. And she just didn't want to do it. She didn't know what to do about that. … she asked me for help.
[32] T134.30
[33] T135.18
28Ms Patterson felt constrained from interfering in the matter for a number of valid reasons.[34] She encouraged Ms Haidari to talk to you.
[34] T135.28
29Ms Haidari had four driving lessons with Ms Patterson between June and September 2019, during which she expressed similar feelings, often becoming upset and crying.[35]
[35] T149.4
30Around this time, Ms Haydar Big, a Hazara community member, discovered that Ms Haidari was engaged again. Ms Haydar Big approached Ms Haidari, who told her that she had concerns about Mr Halimi’s age, the fact that she did not know him, and that he did not live in Victoria.[36] She told Ms Haydar Big that she had been promised she could wait to get married until after she had finished university.[37]
[36] T265.20
[37] T265.27
31Ms Haydar Big suggested Ms Haidari should get legal advice, but she refused.[38] Ms Haidari also refused Ms Haydar Big’s offer to talk to you,[39] or to have religious leaders talk to you.[40] Ms Haidari was concerned about your reputation if Ms Haydar Big were to speak to you, and about you becoming angry.[41] It would have been culturally inappropriate for someone outside the family to be involved in this decision.[42]
[38] T266.6
[39] T269.10
[40] T272.4
[41] T269, 272.15
[42] T270 - 271
August 2019
32On Wednesday 14 August 2019 Ms Haidari spoke to a teacher at her school Ms Schofield, telling her that you were arranging a marriage for her, to Halimi.[43] She was upset, crying and seemed tired and overwhelmed.[44] Ms Schofield informed Ms Young, a social worker at the school, and a meeting was held.[45]
[43] T166.2
[44] T166.10
[45] T183.18
33On Saturday 17 August 2019, Mr Halimi travelled again to Shepparton.
34On 19 August, Ms Haidari told Ms Schofield and Ms Young that Mr Halimi had come to Shepparton over the weekend.[46] She told them that there was to be a promise ceremony the next day, that would be like they were married.[47] This was clearly a reference to a permanent Nikah ceremony. The police and Red Cross were informed after this meeting.[48]
[46] T185.16
[47] T185.20
[48] T185.23
35There was a meeting between Ms Haidari, Ms Young, and the Australian Federal Police on 20 August 2019. Ms Haidari told them that Mr Halimi was in Shepparton, that she had been given an ultimatum and was being advised to marry Mr Halimi.[49] She also told them a $10,000 payment had been made to you, by Mr Halimi.[50]
[49] T187.28; T198.7-199.9
[50] T214.13
36Ms Haidari said that a Nikah had been arranged for that night, the 20th, but after a discussion the night before, you and Halimi had agreed that you would wait eight months for that ceremony. She said she wanted to wait for that time before the ceremony.[51] She believed that the promise ceremony had been called off.[52] She was concerned there were conversations happening behind her back.[53]
[51] T188.5; T198.18
[52] T188.9
[53] T188.14; see also, for example Exhibit 6 lines 390, 415
37The police offered to talk with you, and to provide other support such as emergency accommodation, but Ms Haidari refused.[54] She did not want her school teachers or the police, to speak to you.
[54] T199.16
38Around this time, one or two days prior to the second, permanent Nikah ceremony, Ms Haidari and Mr Halimi collected Ms Muqadas and brought her to your home.[55] At the house, Ruqia told Ms Muqadas that she was not happy about the marriage.[56] She appeared to be teary.[57]
[55] Pre-recorded evidence 53.29
[56] Pre-recorded evidence 54.15
[57] Pre-recorded evidence 57.9
39Mr Halimi was concerned that Ms Haidari did not want the marriage and spoke to you.[58] You told him “this will happen” and that you would speak with your daughter.[59]
[58] Pre-recorded evidence 57.23, 59
[59] Pre-recorded evidence 57.21-26
40Ms Haidari told you that she did not want to get married.[60] You told her that it was not up to her.[61] Ms Haidari told you that she was not going to accept this situation.[62] You told her “Are you my mother or I’m your mother?... I can make decisions for you.”[63] Ms Haidari continued to refuse.[64] You responded by telling her “Do you think it is up to you…no matter what, you need to listen to – to me, to your mother.”[65]
[60] Pre-recorded evidence 58.4
[61] Pre-recorded evidence 58.7
[62] Pre-recorded evidence 58.28
[63] Pre-recorded evidence 58.30-31
[64] Pre-recorded evidence 59.2-3
[65] Pre-recorded evidence 59.5-9
41Halimi said to Ruqia “don’t worry about me and about your mother. So do you want to get married or not?” Ruqia replied that if she did no marry him, she would not be able to live in at home with you.[66]
[66] Pre-recorded evidence 59.18
42The permanent Nikah took place on 21 August 2019.[67] Your son Taqi Haidari again contacted the Mullah to officiate the permanent Nikah on that day.[68] Seven or eight people attended the Nikah.[69]
[67] Pre-recorded evidence 60.3-4
[68] T239.3
[69] T291.17
43At this permanent Nikah ceremony, Mullah Noori again asked the couple the same three questions he asked at the temporary ceremony.[70] Ms Haidari said that as her and Mr Halimi were acquainted with each other they had decided to get married.[71] You confirmed to Mullah Noori what your daughter had said.[72]
[70] T239.7
[71] T239.25
[72] T239.15
44A written agreement was drafted by Mullah Noori on this occasion. Mullah Noori gave evidence that it included the rights for Ms Haidari to get divorced, to work, to study, and to travel, although no copy was provided to the Court.[73] Copies of the agreement were given to Ms Haidari and to Mr Halimi.[74]
[73] T251.12; 20; 24
[74] T252.14
45By completing the permanent Nikah ceremony Ms Haidari and Mr Halimi were considered married under Islamic law. Whilst certain requirements under the Marriage Act, regarding the filing of documents, were not met, this was a marriage for the purposes of the charge that you forced your daughter, Ruqia Haidari, to participate in a forced marriage.
46After the Nikah on 21 August 2019, Mr Halimi again went back to Perth. Your daughter continued to live with you, and continued at high school.
47On 8 November 2019[75] a Henna night was held at Sir Ian McLennan Sports Centre in Mooroopna. A Henna night is one of the cultural traditions for the celebration of a marriage. This was attended by between 300 and 400 guests. The following day the wedding celebration was held, again at Sir Ian McLennan Sports Centre. It was attended by around 500 guests.
[75] Date amended from 2024 to 2019
48Following the wedding celebration, Ms Haidari and Mr Halimi remained in Shepparton, staying at a hotel, until Ms Haidari graduated from her high school On 21 November 2019. The following day they moved to Perth.
Gravity of Offending
49The offence is an inherently serious one. Taking away a person’s free choice about steps in their life - large or small - is an affront to the rights of an adult to make their own decisions about their own life. The consequences of marriage upon any person can be significant. In this case the expectation was that Ruqia would live with Halimi, moving interstate to do so, and that she would act as a wife does in your community. Whilst she had written into her Nikah agreement the that she could study and work, it is striking that she had to be specifically given these rights.
50The series of events show Ms Haidari being rushed into the marriage. The first Nikah was on 16 June 2019. Whilst the period of that temporary Nikah was 12 months, the second Nikah was arranged to take place two months later, in August 2019.
51Ms Haidari was aware of what was pending, as evidenced by the discussions she had with her teacher on the 14th of August. Ms Haidari told the AFP officers, on 20 August 2019, that a Nikah ceremony was planned for that night, but after the discussions the night before you and Halimi had agreed that the ceremony would be delayed for another 8 months.
52Despite those reassurances, the permanent Nikah took place the next day on 21 August 2021.
Your Culpability
53I accept that a motivator in you forcing your daughter Ruqia to marry was that you thought it was in her best interest, in light of your culture and the usual practices of your community. But you knew it was wrong to force a person to marry. You told the AFP that it was necessary for both parties to consent. When you made it clear to Ruqia that she had to marry Halimi, or leave her home, you placed intolerable pressure on her. It is inconceivable that leaving was a realistic or reasonable option for Ruqia. This, and the reassurance she had been given about the delay of the ceremony, undoubtedly were part of her refusal of the assistance of the AFP officers.
54If any of these people – Ms Haydar Big, Ms Patterson, the teachers, the social worker, or the police had chosen to speak with you, they would have been overriding Ruqia’s right to choose whether they should speak to you. It is understandable that she did not want to involve outsiders, in light of the evidence that to do so would have been considered shameful and an affront to cultural expectations. I also accept that she believed outside interference would have made you angry, and that she wanted to avoid this.
55Ms Matthews’ report sets out that you told her that you had been “oppressed by these people”, meaning Ms Muqadas. You said Ms Muqadas spent a year trying to persuade your daughter to marry Halimi. You said
“I tried to persuade my daughter this was a good boy, marry and be happy. I never knew; I never knew anything until. I did not know my daughter was unhappy about marrying this man; every time my daughter was quite happy, she would come and kiss me, and I would ask her.”
56Whilst I accept that Ms Muqadas was probably persistent in raising the issue of the marriage of Halimi to Ruqia, prior to the first meeting, there is no evidence that after that meeting Ms Muqadas had anything to do with promoting either Nikah. The only evidence that Halimi was pushing for the marriage to occur early is in your police interview. It is inconsistent with Ms Muqadas’ description of his behaviour on the 19th of August.
57I do not accept your statements to the police and to Ms Matthews that you did not know that Ms Haidari was not willing to marry Mr Halimi. The evidence of Ms Muqadas was to the contrary, as was the evidence from the AFP officers. Whilst I accept Ms Haidari may have been reluctant to discuss her concerns with you, the evidence that she had been told that there would be an 8 month delay speaks strongly of you being made aware of her wish not to marry Halimi at that time.
58Defence counsel submitted that I should not accept Ms Muqadas’ evidence about the conversations on the 19th of August.[76] He pointed to the matters which had been raised in your trial, noting the absence of any reference to the forced nature of the marriage in Ms Muqadas’ initial statement to the police, that this evidence was only first raised by her at the committal, and that even then she only referred to the first, temporary, Nikah ceremony.
[76] Defence Submission [14]
59In assessing that submission, I have regard to Ms Muqadas’ language barrier, her unfamiliarity with the legal processes of this country, and her discursive style of communication. I accept that she provided the information about the Nikahs when she was asked about it, and that not having been asked about it previously, she did not volunteer the information. I also do not accept that she had a motive to put you in a bad light. Whilst she may well have faced criticism in the community after the murder, for her role in introducing Mr Halimi, no reasonable person inside or outside your community could blame her for the marriage. That decision was a family one, not hers.
60Whilst there was no physical violence or force used to coerce Ruqia into the marriage, this does not mean that the pressure she felt was not real. She was 20 years old. All her family was within the small Hazara community in Shepparton, as were most of her friends. She did not have a job. Whilst offers were made to help her, these would have led to her alienation from you, her mother. Furthermore, she would have known that not taking part in the marriage would raise questions about you and the rest of the family, within the Hazara community and it is clear from the evidence of Ms Haydar Big that she was concerned not only about your anger, but your standing in the community.
61In assessing your culpability, I have regard to your personal history and that you were acting in what you thought were your daughter’s best interests. I note, however, that s16A(2A) of the Crimes Act 1914 (Cth) prevents me from taking cultural law or customary practice into account to lessen the seriousness of the criminal behaviour to which the offence relates. Those matters explain why you thought this was the right thing to do, but they are not mitigating and they do not reduce your moral culpability.
Circumstances of the Victim[77]
[77]Crimes Act 1914 (Cth) s16A(2)(d) and (e)
62I am also required to consider the personal circumstances of the victim of the offence. Your daughter was still young, only 20 years old. She was finishing high school and looking forward to her life, hoping to study further and get a job. She wanted to put off getting married for some time, to enable her to explore the options available to her about how to live her life.
63Having been forced to marry she was then required to move across the country to live with a man she hardly knew, and to be subject to his power and expectations as her husband. He murdered her in a fit of rage, when she did not behave as he expected. You are not, of course, being sentenced for his acts, nor is it in any way suggested that you had foresight that he would murder her.
Personal Circumstances
64You were born at some time in 1976 in Bamyan Afghanistan[78], and were approximately 42 years old at the time of the offending, and are now around 47 to 48 years old. You are of Hazara Afghan descent. You and your family are Shia Muslims. You speak Dari and related dialect, but not English. You have never had any formal education.[79]
[78] ROI [10]
[79] ROI [10]
65You were married at the age of 12 or 13, to a man you had never met. You say you would have agreed to the marriage because your family told you to marry him. Your first daughter was born when you were still in your early teens.
66You had five children, the youngest being Ruqia Haidari. She was born a month before your husband was killed by the Taliban. You fled Afghanistan and lived in Pakistan until in 2013, when you and four of your children, Adila, Alim, Muhammad Taqi, and Ruqia, migrated to Australia as refugees. You told Ms Matthews that Ruqia was the baby of the family, and that you and your other children gave her special attention and care.
67You and your children settled in Shepparton not long after you arrived in Australia. Your oldest child Karima also settled in Shepparton when she and her husband migrated to Australia in 2018. All of your children were married by the age of 18 or 19, in arranged marriages.
68Your religion, your culture, and your reputation in the community are all important to you.[80]
[80] T331.6-30 [day 7] ]
69When you came to Australia you tried to learn English, but you found this very difficult. You did attend an educational session about Australian law and possibly also had a discussion with a nurse about this. You told Ms Mattews that you believed you acted in accordance with Australian law regarding Ruqia’s marriage.[81] When you were interviewed by the police you clearly understood the difference between an arranged marriage and a forced marriage.
[81] Matthews 4
70You presently live with your son Taqi and his wife. You receive Centrelink payments. You have 9 grandchildren.
71You have no other criminal convictions or findings of guilt.
72A letter in support from the Goulburn Valley Afghanistan Association was provided to the court. It sets out that you have been a member of that association since August 2013, and that you are a well respected person in the community who takes part in the community’s events and you regularly pray at the mosque in Shepparton. The letter states “we the community members have known her as a quiet, kind and helpful woman and owner of an excellent character”.[82] 36 members of your community, signed the attachment to the letter.
[82] Exhibit D3.
Psychologist’s Report
73You were assessed by a forensic psychologist, Ms Matthews, for the purposes of the plea. You reported to her that you constantly think about Ruqia and have bad dreams of her calling out to you for you to help her. You find it hard to sleep and your appetite is reduced. You cry a lot, thinking about Ms Haidari. Your son reported to Ms Matthews that you take medication to help you sleep.
74Ms Matthews thought you presented as a simple person, with limited insight. She accepted, having no other information, your assertions that you and Ruqia were under pressure from Ms Muqadas and Mr Halimi. Her opinion was “Given Ms Jan’s simplicity, she may not have been able to assert herself under such pressure”.[83] As I have said earlier, I do not accept that Ms Muqadas or Halimi put pressure on you or on Ms Haidari for the marriage to take place.
[83] Matthews 5
75Ms Matthews considered you presented as depressed and that you met the criteria for a Major Depressive Disorder, with depressed mood most of the day, nearly every day, loss of appetite and insomnia, and also suicidal ideation. Ms Matthews considered that the diagnosis of a Major Depressive Disorder was more apt than a Persistent Grief Disorder, as your grief for the death of Ruqia was a normal reaction to the situation, although extended by the legal proceedings.[84]
[84] Matthews 5
Matters Raised in the Plea Hearing
Deportation
76You are a permanent resident. When a sentence of imprisonment longer than 12 months is imposed the provisions of the Migration Act, in particular s501, operate with the effect that your visa can be cancelled. Whilst I cannot have regard to executive action – whether that be likely, certain or uncertain – the authorities provide that I can take this prospect into account on two bases. First that deportation, should it occur, would itself be an additional punishment, and secondly that uncertainty about this would weigh on your mind, during the service of any sentence of imprisonment.
77Both reasons give rise to a moderate degree of mitigation of your sentence. It would be a very grave thing indeed if you were required to return to Afghanistan. As a Hazara woman, the situation for you would be extremely difficult and unsafe. Your immediate family is here in Australia, and I have no information that you have any family or connections remaining in Afghanistan. Such a change of circumstance would be a significant extra punishment upon you, if it were to occur.
78I accept also that the thought or risk of being returned to Afghanistan will be a significant concern for you.
79Whilst this factor in mitigation carries real weight in the sentencing discretion, it does not permit me to sentence in a way designed in order to avoid the operation of the Migration Act.
Difficulty of Imprisonment
80I accept that imprisonment would be very difficult for you, having regard to your lack of English, and your limited life experience. I accept that you would feel a great deal of shame and struggle to adapt outside of the family life which has been almost your entire experience. I accept that difficulties in coping with imprisonment, and shame, would make your time in prison more onerous and be likely to exacerbate your mental health.
81I also accept that any period of actual imprisonment would be made more difficult by reason of your ongoing depression and grief.
Contrition & Extent of Cooperation with Authorities
82In the circumstances of your denial of the offending you have not shown any contrition. I accept that this is because of your stance about your guilt, rather than any other adverse reason.
83You have been cooperative with the authorities to the extent of engaging in an interview with the police, and not taking steps to hamper the investigation or prosecution of the case.
Prospects of Rehabilitation, Specific Deterrence
84I accept that there is little to no likelihood of you committing any other criminal offence, and thus specific deterrence has little or no role to play in sentencing you.
Death of Ms Haidari
85You had no reason to think that Halimi would murder Ruqia. Whilst your counsel did not seek to rely on Ruqia’s death as a form of extra-curial punishment, her death, in such circumstances has been a terrible thing in your life, and a source of ongoing grief.
Adequate Punishment & General Deterrence
86The sentence I impose must adequately punish you for your offending. I commenced these reasons for sentence by referring to the harm that this offence seeks to address, in the community, and the gravity with which Parliament views such an offence. As the Attorney General, and the explanatory memorandum set out, such an offence is likely to be committed by a family member, against a vulnerable young person. That is what happened here.
87It must be made clear to everyone in our country that forced marriage is against the law, and that forcing someone to take part in a marriage against their will leads to significant consequences for the offender. Whilst I accept that even being charged and enduring the publicity of a trial and plea hearing acts as a deterrence, that is insufficient to bring home to the public that real punishment will follow such an offence.
88Although a period of imprisonment, with immediate release on a recognizance release order has a deterrent effect, the impact of such a disposition as general deterrence is much less than a period of imprisonment actually to be served.
Legislative or Other Guidance
89I was told that whilst there are sentences pending for another offender for this crime, in New Sout Wales, this will be the first sentence imposed in Australia for a charge of forced marriage.
90Thus, the only guidance I have as to the appropriate sentence is the maximum penalty, set by Parliament, and the application of sentencing principles and purposes. The maximum penalty is seven years’ imprisonment. That figure is not a number from which to work down, or work up to, in a formulaic way. Only a “worst case” matter would warrant that sentence.
91The Code provisions regarding forced marriage, and other slavery-like offences, cover a range of conduct which may amount to force, by way of coercion. These include duress, detention, psychological oppression, abuse of power and taking advantage of a person’s vulnerability.[85] The offence of forced marriage would capture conduct by a person who did not themselves coerce the victim, provided their conduct was a cause of the victim entering the forced marriage, and the accused knew or was reckless as to that.
[85]Criminal Code s270.1A
92You were the trusted and only living parent of the victim. It was your acts of coercion that caused her to enter the marriage. You abused your power as her mother, as the person with whom she lived and respected, to override her desire not to marry Mr Halimi. Whilst you believed you were acting in her best interests, you were not in fact doing so.
93I do not accept, therefore, that this is a low level instance of this offence. Having regard to the type of pressure that was put on Ms Haidari, by whom, and her age and circumstances, I accept the prosecutors’ characterisation of this instance of the offence of forced marriage as mid-range.
Submissions as to disposition
94Defence counsel submitted that a community correction order would be a sufficient sentence, in all the circumstances, or failing that a term of imprisonment with immediate release on a recognizance release order.
95The prosecution submission was that a term of imprisonment was required, in all the circumstances.
Sentence
96Having regard to the maximum penalty, the nature and gravity of the offence, the strong need for general deterrence, and your circumstances, I consider that any sentence other than imprisonment, with a period of time actually to be service, would be manifestly inadequate.
97On the charge of charge causing a person to enter a forced marriage I sentence you to 3 years imprisonment. I direct that you be released on your own recognizance after having served 12 months in custody.
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