Director of Public Prosecutions v Al Hilo
[2024] VCC 1961
•3 December 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 23-00585
CR 23-00586
CR 23-00587
CR 23-00588
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MOHAMMED AL HILO NADHA AZIZ FUAD AZIZ MOCHTEBA KADHEM |
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JUDGE: | HIS HONOUR JUDGE TINNEY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 July 2024 to 22 July 2024 (Trial) 6, 8 and 11 November 2024 (Plea) |
DATE OF SENTENCE: | 2 and 3 December 2024 |
CASE MAY BE CITED AS: | DPP v Al Hilo & Ors |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1961 |
REASONS FOR SENTENCE
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Subject:Kidnap x2 - Verdict after trial - Taking and carrying away of two female family members who had left Sydney to start a new life in Melbourne - Found in Melbourne - Followed and residential address located - Attendance without any notice - Parties driving from Sydney or flying from either Sydney or Brisbane - Preplanning; Fuad Aziz not present but complicit - Extent of being held - Factual findings - Various individual matters in mitigation.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. Singh (at Trial and at Plea) Mr J. Makary (at Sentence Day 1) Ms E. Grierson (at Sentence Day 2) | Office of Public Prosecutions |
For Accused Al Hilo | Dr J. Murphy (at Trial) Mr M. Breeze (at Plea) Mr X. Sun (agent at Sentence) | Ms J. Fayman Fayman Lawyers (at Trial) Ms I. Satkunanathan |
For Accused N. Aziz | Ms K. Rolfe (at Trial and Plea) Ms S. Sringar (at Sentence) | Ms S. Condon |
For Accused F. Aziz | Mr . Sturges (at Trial and Plea) Mr J. Hurley (at Sentence) | Mr J. Hurley Stary Norton Halphen |
For Accused Kadhem | Mr M. Kozlowski (at Trial) Dr F. Gerry (at Plea) Mr A. Lewin (at Sentence Day 1) Mr J. Lowy (at Sentence Day 2) | Ms M. Critchley |
HIS HONOUR:
1Following a three-week trial conducted between 1 and 22 July, you were each found guilty by a jury of two charges of common law kidnapping.
2There had in each case been a period of pre-sentence detention prior to the trial. I understand that three of you had been bailed in the Supreme Court, by my brother, as it happens.
3On 22 July, following the verdict, you were all remanded back into custody, and you have been there since. The actual periods of pre-sentence detention are set out in the Crown sentencing submissions
4
The plea was adjourned to 6 November, purely as a result of the unavailability of various counsel and/or the need for reports to be obtained for a number of you. I would have preferred to have heard the plea swiftly upon verdict and sentenced you all some months ago, but that has not been possible. Having heard the plea, which continued on 8 and then into 11 November, on the 11th
I continued your remand until today's date.
5Kidnap is punishable by a 25-year maximum term of imprisonment. It is also a Category 2 offence.
6As a result of this being a trial with guilty verdicts returned by the jury, there is no agreed summary, as would often exist in the setting of a guilty plea. I must sentence in accordance with and consistently with the jury verdicts. Mr Breeze in his submission sets out some of the case law pertinent to this task. I am well familiar with the task. For any matter of aggravation, I must be satisfied of it beyond reasonable doubt. This issue was discussed in the recent Court of Appeal decision of Berry v The King[1]. That decision was delivered on 19 November, but there was nothing new in it, and in fact it referred to some of the case law cited by Mr Breeze including the case of Cheung,[2] so I saw no need to refer the parties to that case – it altered nothing.
[1] [2024] VSCA 274 ('Berry').
[2] Cheung v The Queen (2001) 209 CLR 1
7At paragraph 24 of Berry, the Court of Appeal cited Cheung's case saying the following:
Gleeson CJ, Gummow and Hayne JJ said in Cheung: 'The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge … But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual, it is commonplace'.
8The Court of Appeal went on to say the following:
Some years earlier, it was observed by the Full Court in Harris: 'The responsibility of awarding punishment once a jury has convicted a prisoner lies solely upon the judge. He has to form his own view of the facts and to decide how serious the crime is that has been committed, and how severely or how leniently he should deal with the offender. The learned judge in forming his view of the facts must not, of course, form a view which conflicts with the verdict of the jury, but so long as he keeps within those limits, it is for him and him alone to form his judgment of the facts'.
9Three of the barristers made a number of submissions on this plea as to the factual basis of sentencing. Neither Mr Breeze nor Dr Gerry had conducted the trial. They had not seen the witnesses give evidence but were to some extent familiar with the transcript. Ms Rolfe had conducted the trial and had seen the witnesses and heard the evidence.
10So it was then that each of those three counsel, to varying degrees, made submissions as to the factual basis of sentencing. Most of them were unsustainable. Mr Sturges, who appeared for you, Mr Aziz, stayed well clear of these areas.
11I had some dialogue on the first and second day of the plea with Mr Breeze and Dr Gerry, likewise with Ms Rolfe on Day 2 as they each made submissions about a variety of factual matters. It was less prominent in Dr Gerry's plea it must be said. As to Ms Rolfe and Mr Breeze, it was almost as though the trial was being relitigated and no guilty verdicts had been returned and none of the evidence had been actually led from the victims, Zahra[3] and Huda[4]. Not just their evidence, by the way, but the myriad of other evidence supporting their account and supporting many of the facts that those two counsel argued could not be established beyond reasonable doubt.
[3] A pseudonym
[4] A pseudonym
12Mr Breeze was in part relying upon his client's police interview and was even pointing to puttage of his client's instructions, puttage which was directly rejected on oath by the key witnesses, and no doubt by the jury given the verdict.
13Ms Rolfe descended to a number of credibility points, for instance raising a number of inconsistencies; attacking Huda's credibility as to her description of seeing a hand being placed by Ms Aziz over Zahra's mouth by reference to the fact that Zahra herself had not mentioned any assault by her mother. In the scheme of what took place in that bedroom, a hand over the mouth was hardly one of the prominent acts, or even for that matter, a matter of real aggravation had it taken place. She was also pointing to Zahra's failure to mention restraints in her written statement as though that somehow removed the effect of her sworn testimony which was challenged by all and sundry and not retreated from. I note that upon being liberated up in New South Wales, both she and Huda in the body worn camera footage indicated the presence of restraints. Huda mentioned knives.
14The defence in relation to the first three persons on the indictment, so the three who attended the house, Mr Al Hilo, Mr Kadhem and Ms Aziz, was that there was no kidnap. That those three went to the house, waited at the front door, that Zahra arrived, and Zahra then invited them into the house, there was a chat downstairs and the two victims, two young women who had left Sydney to set up a new life in Melbourne months before, just immediately abandoned that life and consented to return to Sydney, leaving jobs, boyfriends, a house with a 12-month lease, a fridge full of food, dishes in the sink and virtually all of their belongings. As a matter of commonsense and experience of the real world, it was a theory that had some very large problems, even before considering the direct evidence as to what the victims say actually took place within that house. I will return to this in some detail. I feel I must, given the prominence of these submissions as to the limited basis of kidnapping. Ultimately, Mr Breeze submitted that the duration of the kidnap could not be said to have extended beyond the moment the two girls were in the car or perhaps even at the back gate on the way to the car in Heidelberg Heights. He was still pressing a version of the facts that had the three of you invited into the house – it was really quite absurd.
15These were completely unrealistic submissions given the verdict and more significantly, the evidence placed before the jury and me. Those submissions were surrounded by many other unrealistic submissions, some made by Mr Breeze, a number made by Ms Rolfe and even a few offered up by Dr Gerry. Mr Sturges stayed well away and conducted an economical and sensible plea. Counsel are free to make such submissions as they choose to on a plea; they can make sensible submissions, or even foolish submissions. Their conduct on the plea in no way aggravates your offending. I make very clear to you that none of you is any worse off by way of sentence as a result of your counsel choosing to make a variety of meritless submissions. You are only worse off in that I have no alternative but to address these various matters at length and regrettably then, you are pinned down there in the dock having to listen to me do so.
16None of you chose to give evidence in this case, as was your right. The only version before the jury from any of the four you was your police interview account, Mr Al Hilo, where you denied any kidnap. You described attending at the women's Heidelberg Heights property on the day in question with Nadha Aziz and Mochteba Kadhem and being admitted to the house by Zahra, having a brief chat in the downstairs bedroom during which the two women agreed to return to Sydney. No force, no violence, no absence of consent, no deprivation of liberty, nothing untoward at all. A version of the facts that has been roundly rejected by the verdicts returned by this jury.
17What though do I make of the factual basis of sentencing bearing in mind the need that I sentence in accordance with or consistently with the jury verdict and the requirement that I am satisfied beyond reasonable doubt of any matter of aggravation?
18Zahra Kadhem was born in 1999 and is now 25 years old. Her cousin, Huda Salman, is younger, born in 2003. In early 2022, Huda lived in Brisbane with her family, Zahra in Sydney with her family. You, Fuad Aziz and Nadha Aziz, were her parents. You, Mochteba Kadhem, were one of her brothers. Mr Al Hilo, you were Zahra's first cousin but also had married her sister Kawsar. That relationship had failed. As to Huda, well of course there was a different family relationship. You, Ms Aziz and Mr Aziz, were her aunt and uncle, a much-loved aunt, Ms Aziz. You, Mr Kadhem and Mr Al Hilo, were her cousins. It follows that the victims in this case have been kidnapped by family members. The family relationship and being offended against by family has placed each of them in a terrible position: Offended against in their own home by family members and yet still loving those family members. Zahra was aghast at the time of the kidnap, mentioning to her mother that she. Nadha Aziz, had sacrificed the hopes that Zahra had entertained of resuming in-person contact in her own manner and time. The conflict in her mind is quite exquisite as she was compelled to testify against these loved relatives. She mentioned in her evidence the sense of betrayal and hurt and anger. See the trial transcript p89, line 14. She also bears the concern that she not unnaturally feels for the fate of her relatives. Huda spells out some similar sentiments. I will deal with the impact statements shortly.
19It is plain on the evidence and the plea materials before me that religious strictness and/or the inability to lead the sort of life they wanted to lead as young women in their respective families, led to the two women forming a desire to leave the family home in each case. Zahra described what that translated into, including the requirement to wear a head scarf and the inability to have any male visitors to the house. She wanted more in life. Zahra was also trying to convert to Christianity – it was not accepted within the home. The expectation was she would live her life in accordance with the family religion and values. She did not wish to. She had every right not to. I am not dealing with some cultural or religious stereotype as referred to by Dr Gerry in paragraph 9 of her submissions, this was simply the position that Zahra found herself in.
20In March of 2021 the two women tried to leave their respective families and go to Melbourne. Huda came to Sydney to join Zahra, and the two women were then found by you, Ms Aziz, and one of your daughters, Fatemah. They were persuaded to give up their plan and return to their respective homes. Zahra told the jury that her mother told her that she and the family would accept her conversion to Christianity. I accept though that this did not occur and that she was still, for instance, expected to wear a head scarf, pray and practise the family's religion. I note that Dr Murphy, who acted for you at trial, Mr Al Hilo, placed before the jury some photographs taken on a holiday in the period after the first abortive running away and close to the offence date, photographs showing Zahra in a head scarf. They were not too suggestive of her wishes being respected. Indeed, she said in her evidence that they had not been.
21She said that she felt betrayed and that before long she was thinking of leaving the family home again. On 8 March 2022 that step was taken together with her sister Kawsar who had by then separated from you, Mr Al Hilo. Huda left her family up in Brisbane and in due course she flew down to Sydney to join the two women.
22Zahra described how she and her sister were tracked down by her family at a friend's house in Sydney and she described having to drive to the local police station with her sister to obtain assistance. They were followed to the police station by you, Mr Al Hilo, and you, Ms Aziz. You, Mr Kadhem, and you, Mr Aziz, were also in attendance. None of this evidence was in dispute.
23It follows then that the desire to leave the family was so strong as of March 2022 as to have Zahra seek out police assistance to intervene and to permit that to occur. The family wish that they remain was so strong as to have family members endeavouring to impede their departure. That was not a product of any danger or risk existing in their new life; their new life had not even commenced as they had scarcely left home.
24That is the last time that she, Zahra, saw her mother, father, cousin Mohammed or brother Mochteba until the day of these serious crimes when three of those members, so not you Mr Aziz, but your three co-accused turned up unannounced at Zahra and Huda's Heidelberg Heights property on 30 August 2022.
25The surprise nature of that visit was never in dispute.
26The defence case was that Zahra, who had left Sydney in those circumstances and set up the life she had set up, after a brief chat in a downstairs bedroom, then agreed to return, and return there and then to Sydney – so too Huda. As I said earlier, it had a most unrealistic ring to it before even considering her evidence on the topic or that of her cousin, Huda, or the state their home was left in or the various inferences open to be drawn from all the materials.
27Zahra had described coming to Melbourne and staying in a number of locations in Melbourne before renting the Heidelberg Heights property with Huda, a property that they were both very pleased with. They each had jobs. They each had boyfriends. Zahra had a committed relationship with Robert Bains[5], one she saw having a future, and indeed I note they are still together now over two years after this most unpleasant interlude. Zahra and Huda had bought furniture and a puppy. They had settled into a very different life in Melbourne and were very careful indeed not to provide the address to the family members.
[5] A pseudonym
28There were changes of phone numbers and social media accounts to avoid being located. They had cut themselves off from any possibility of unwanted family interference in their lives, though that did not impede them from maintaining phone contact with family members. Zahra still loved her mother and father and said as much. They were, however, scrupulous not to let slip where they lived. Again, that was not in dispute. It was not in dispute that they did not want to be found.
29Nor was it in dispute that you, Mohamed Al Hilo, drove to Melbourne on 27 August and that the sole purpose was to locate your cousins. You checked into a prebooked room at the Novotel Preston where you stayed for three nights. You described in your interview wanting to fix the 'problem' or 'issue', the issue being that they ran away 'for no reason'. You said that they were drinking and smoking amongst other things, see Question 605 of the interview. You mentioned other concerns in your police interview, drugs and gaol and death, but I see no basis at all for you to have held any such concerns, nor do I accept that you actually held them. You correctly described that Zahra was scared that the family would find her address, see Question 343. She most certainly was, and for good reason, as later events would demonstrate.
30There was of course no 'problem' to fix from the victims' perspective. It just so happened they were living a life the family disapproved of in that they were unmarried and should have been living in the family home. Mr Kadhem, you discussed these aspects of the strict family and religious expectations in your interview with the psychologist.
31So you, Mr Al Hilo, set about trying to find these two women. Mr Breeze who acted for you on the plea, but not the trial, did not much like my using the phrase 'hunting for them', but of course that is exactly what you did. It was the purpose of you driving from Sydney to Melbourne, checking into the Novotel hotel, and then driving to various locations within Melbourne. I note that your counsel at trial, Dr Murphy, said to the jury that it was not in dispute that you came to Melbourne to find the girls, and that you did, and that you then followed them without letting on that you were in town. The surprise nature of the visit on 30 August was conceded by him, and indeed by all trial counsel acting for those who entered the unit.
32Ms Aziz, your counsel Ms Rolfe at trial asked the jury not to respond emotionally to things they might have felt strongly about, for instance, the evidence touching upon how the two women were located and their address found. So why there was some consternation as to my suggesting that you, Mr Al Hilo, had been hunting for your cousins remains a mystery to me. That is exactly what you were doing, as you well know, and you found them.
33Indeed, there was no dispute that you had been following them to a variety of locations once you found them – so secretly surveilling them for days. Later discussions with them up in Sydney and in your interview account in conjunction with the call charge records, and the phone tower evidence, disclose that you evidently found them at a shisha café late on the Saturday evening, the 27th.
34There was an SMS sent to Ms Aziz, and a 56-second call just before midnight, and then a 13-minute call just after midnight, by now into 28 August. You obviously communicated to her that you had found the women. In the interview, you described following them to various places including work and a station drop off and to where they lived. You had found them and followed them, not just that night but on other occasions over the ensuing days and without letting on as to your presence.
35On 29 August you flew down from Sydney, Ms Aziz, and stayed at the same hotel as Mr Al Hilo. Before doing that on the 28th, it appears that you had some involvement in booking or ordering your son's flight for 29 August.
36On the 29th, Ms Aziz, your phone connected with Huda's phone on seven occasions, see paragraph 37 of the agreed evidence. I will not descend to the full detail of the agreed evidence which sets out those calls and if answered or not, but I repeat: no one suggested to any witness that there was any forewarning of any attendance.
37Still there had been no attempt by any of you to in any way advise Huda or Zahra as to your presence. Plainly they were being followed on the 30th. I note that you, Ms Aziz, and you Mr Al Hilo, left the hotel at 6.13 am.
38It was put by each of your trial counsel, not by Mr Sturges for you, Mr Aziz, that the three of you attended without notice but were there in plain sight at the door when Zahra returned home and that she invited you in. That is not what happened at all. It makes no sense at all either.
39On any view of it, by then the decision had been made to kidnap Zahra and Huda. I am satisfied of that beyond reasonable doubt. Mr Aziz had already joined in the agreement, as the verdict makes clear and as was conceded by Mr Sturges. I reject entirely the suggestion made by Dr Gerry that the agreement was only joined by you once inside the house, Mr Kadhem.
40You all stand convicted of kidnap of these two women. The notion of three people standing around the front door in plain sight waiting for their targets to return is quite absurd. The last time Zahra had seen any of you, she was driving to the police station in Sydney trying to escape from you all. The notion that you would be standing around the front door prior to her getting home is farfetched indeed. Whether you were waiting inside the house or rushed in the front door from some hiding place out the front, really would make no difference. Either way, it would represent an ambush and provide some evidence of preplanning. I am not after all dealing with you for any illegal entry.
41But of course, the photographs and evidence describing the precinct discloses there was nowhere to hide in that driveway. The direct evidence from Zahra is that she parked right up the drive near her unit. Her direct evidence was that the three of you were already inside the house when she got home. She was challenged on that score time and time again and completely rejected those challenges. I have no doubt at all that she was telling the truth on that score; that you three had obtained entry and were already inside the unit when she entered. Your counsel, Mr Al Hilo, argued that I should sentence on the basis of your being invited in – you were not. Your interview has been completely rejected by the jury. The evidence was not just from Zahra, by the way. Huda described hearing Zahra scream from inside the house. No one has described seeing any people at the front door or in that vicinity. The notion of Zahra getting out upon seeing you and inviting you in is ridiculous. I am satisfied beyond reasonable doubt it is not what happened at all. I have noted already that the layout of the driveway of the property gave no opportunity for people to hide in that area or not to be observed. You were not there in the drive or anywhere near the front door area – you did not want to be seen.
42I am satisfied beyond reasonable doubt that the three of you were inside the house waiting for their arrival to effect the plan that you had hatched to kidnap them.
43It is not critical for me to determine precisely how you got inside. I do note, however, that the car you came in was parked adjacent to some parkland at the back of the property. It was hardly suggestive of those within the vehicle wanting to go along the back streets around the block to the front door and mill around in plain sight, and of course you did no such thing, of that I have no doubt at all. There was a back gate and a scalable back fence. I note that Zahra's boyfriend, Mr Robert Bains, described noticing an issue with the laundry door lock that appeared to have been tampered with. You, Mr Al Hilo, also made an admission to Zahra that it had only taken one of the tools that you had purchased to break into the house. I have no doubt at all that you made that admission and that it was true as to having broken into the house. I note also that a pair of pliers was found on one of the beds. Mr Breeze sought to draw some comfort from the inability to trace that purchase back to your bank account, Mr Al Hilo, or to find any evidence of it. That was hardly a decisive point given the number of ways a purchase could be made and by a range of people at a range of different outlets.
44Mr Breeze set out at paragraph 13 the various findings he said were open, and at paragraph 14 the findings he submitted were not open to the court. Some of these matters were the subject of address by Ms Rolfe as well. I have already addressed some of those matters.
45There is no doubt you, Mr Al Hilo, came to Melbourne on the 27th and stayed at the hotel. No doubt that you came to find Zahra and Huda. I do not for one moment believe there was any thought of talking to them and persuading them to come to Sydney. You never sought to talk to them at all. You found them and kept your presence, and the fact that you knew where they worked and lived, secret from them. You told Ms Aziz that you had found them.
46None of the three of you in any way alerted them to your presence in Melbourne. This was in truth an ambush and it was not an attempt to talk or persuade.
47I do not accept that Zahra opened the door and let you in.
48I do not accept for one moment that the period of offending concluded once they were in the car at the back of the Heidelberg Heights property. Only Mr Breeze was making that submission, and he really ought not to have. I find beyond reasonable doubt that was not the position at all.
49As to the various matters said not to be open, I have already indicated my conclusion as to the suggestion that you were invited in. I am satisfied beyond reasonable doubt that did not take place. I am satisfied beyond reasonable doubt the three of you had all gained entry to these premises in advance of Zahra and Huda attending back from work and that you lay in wait. I am satisfied beyond reasonable doubt that you, Mr Al Hilo, had a tool or tools used to gain entry and did make that admission. You had attended and each entered these premises in advance of the two women. I am satisfied beyond reasonable doubt that none of the three of you had gone to the house to talk or to persuade. I am satisfied beyond reasonable doubt that you were each there to kidnap and that this agreement had been reached prior to attending at the address. You had agreed to take them from their home by force or with coercion, which is exactly what then took place.
50I am satisfied beyond reasonable doubt that at that stage you were there to do as you did, kidnap and to use such force as was necessary to force them from their home and take them to where you thought they ought be.
51I am satisfied beyond reasonable doubt that the period of deprivation of liberty lasted until they arrived in Sydney. Indeed, I am satisfied beyond reasonable doubt that it persisted until their release at the hands of the police in Sydney. Given the way that they had been taken away from their own home and transported in the middle of the night without any choice, they had no control over their movements in Sydney at all. The suggestion at paragraph 13, point viii. of Mr Breeze's submission, which he addressed during the plea that the period of offending concluded once they were in the car, simply ignores the reality of the direct evidence placed before the jury, the circumstantial evidence and pure common sense.
52As I have said, the defence case was that there was no kidnap, no force or violence or loss of liberty, or absence of consent; just a surprise attendance, the three invited in and a brief chat with five people in a downstairs bedroom. Not adjourning upstairs to the spacious living room for a pleasant cup of tea and a chat with relatives who had not been seen for many months. Just no delay, two of those five down from Sydney, one down from Brisbane, and the final two being these two women who did not want to live with their families. In an instant, there was an agreement to leave their entire life behind at a moment's notice, a decision made in that room. They did not even go upstairs. Plainly, this was rejected by the jury. The jury was satisfied beyond reasonable doubt that the elements of kidnap were established beyond reasonable doubt. So the taking or carrying away, the deprivation of liberty, force and absence of consent – all of those things were established.
53The notion that those elements all existed in the house in the setting of the secret attendance I have described and that the force and deprivation just evaporated into agreement to leave within moments of being forced from the property, is completely farfetched. I reject this submission beyond reasonable doubt – the evidence is clear.
54There is the evidence before me of the actual violence within the house, physical and/or verbal abuse, and controlling conduct from all of you before removal from the house.
55Let me deal with the suggestion that I should not be satisfied beyond reasonable doubt that you had a knife, Mr Al Hilo. Zahra said on oath that you did, and she was challenged repeatedly on that score without success. I interpose; had a jury concluded she was actually lying on any topic of note, it surely would have translated into an acquittal. In any event, I have to determine the factual basis of sentencing applying those principles I set out earlier.
56
Mr Breeze pointed to the way that evidence had come out at trial, that she had failed to mention the knife in her evidence-in-chief. See the trial transcript 73 and 74. Her examination-in-chief, it must be said, was not a smooth affair. There were so many of her descriptions in the statement not led from her. She might well have wondered what was happening. There was an unfortunate break in proceedings, and I sense that the interruption did not assist the witness as the prosecutor, upon resuming, focused on the glove and the colour of the glove on one hand. Her mention of the knife occurred when she was challenged in cross-examination as to their being no violence and she rejected that and mentioned the knife. See the trial transcript 199. The prosecutor when leading her evidence-in-chief for some reason had overlooked the omission and took no step to refresh her memory or introduce the topic, nor when asking the question, did he go beyond the gloved hand. When challenged by Dr Murphy as to mentioning it for the first time in
cross- examination, Zahra pointed to her statement and her committal evidence where I note she did indeed describe it.
57I am satisfied beyond reasonable doubt that you, Mr Al Hilo, were armed with a knife within the house as she described. Whether you carried it there or found it within the house I cannot say and so it really does not assume any great value as it cannot really lead to a conclusion as to there being any additional planning. I am though satisfied beyond reasonable doubt that you were armed with a knife at the time you put your gloved hand around Zahra's mouth. I am satisfied beyond reasonable doubt she screamed and bit or tried to bite your finger. I am satisfied beyond reasonable doubt she was pushed onto the bed by you.
58I am satisfied beyond reasonable doubt that you, Ms Aziz, pulled Huda down to the ground by her hair, and that was the setting in which you, Mr Kadhem, got upon your cousin with an object you claimed to be a knife. It was a hard object. Whether it was a knife or not I cannot determine, but that is unimportant. You had an object of some description which you described to her as a knife and which you applied to her body as though it was one. I am satisfied beyond reasonable doubt that you abused her verbally. I cannot conclude that the object, whatever it was, was carried to the house. It may have been taken from somewhere within the house once you had entered.
59I am satisfied beyond reasonable doubt that you, Mr Kadhem, said to Huda, 'You think you can run away from home. You're a slut. I have a knife in my hand. Don't move, don't scream', or words to that effect. See the trial transcript 319.
60I cannot be satisfied beyond reasonable doubt that the knife carried by you, Mr Al Hilo, or the object used by you, Mr Kadhem, were taken to the house. As I have said, they may well have been found within the house as you awaited the arrival of the women. I am, however, satisfied beyond reasonable doubt that some equipment was carried into the house being the duct tape and rope and pliers. Each of the victims described the use of duct tape in binding hands, and in the case of Huda some duct tape being placed over her mouth as a gag. Again, the challenge before me was as to some inconsistencies when looking at their two accounts side by side. Huda described duct tape being placed on Zahra's mouth and omitting at one point any mention of the tape being applied to her mouth. These were victims caught up in a terrifying event. The failure to have mentioned it in a statement was hardly decisive. There was no inconsistency as to the fact of the actual use of duct tape in the kidnapping. Each said on oath it was employed. I am satisfied beyond reasonable doubt it was used by you, Mr Al Hilo, and by you, Mr Kadhem, and in your presence Ms Aziz. So too the rope that was described.
61The suggestion made on the plea by Ms Rolfe, and to some extent by Mr Breeze as to the absence of corroboration, was quite bizarre. No such submission had been made to the jury for very obvious reasons as there was plenty of supportive evidence and it really ought not to have been made to me. The witnesses supported each other, not that corroboration was required for either witness. Further, pieces of duct tape and the roll itself is captured in some of the photographs. One piece found in Zahra's room had hair on it, Exhibit F. The evidence from the occupants demonstrated that duct tape was foreign, completely foreign to that house, and when the room was cleared out by you and your offsider Mr Aziz, the roll of duct tape obviously had been removed. That was the only inference open given the various photographs taken before you arrived at the house and after.
62This was not some item being placed after the event by the victims to falsely convey that a crime had been committed. It was not a 'fake' crime scene being set up by people in anticipation of falsely reporting a crime. As a matter of fact, they were kidnapped, and that was how these rooms were left – pliers on the bed, the roll of duct tape on a dresser and pieces on the ground, some of the rope in a corner and even two kitchen knives in Zahra's bedroom. She was never asked about those knives. Your cap was found in the bathroom, Mr Kadhem. It had somehow fallen off.
63These were some of the things that so greatly alarmed Robert when he went into the house in search of his girlfriend, Zahra. I cannot be satisfied beyond reasonable doubt as to the precise state of knowledge existing as against each of you as to what was to be taken into the house. I will come back to that later.
64I have no doubt at all though that the tape and the rope was carried to the house for the purpose of binding the victims for the trip that lay ahead. Of that I have no doubt at all, I am satisfied of it beyond reasonable doubt. I am satisfied beyond reasonable doubt you were all wearing gloves. I do not regard it as a feature of aggravation at all, as I cannot say they were worn prior to entry. It may well be they were worn once inside, and Zahra described recognising a pair from the kitchen upstairs. By that stage the crime was to take place and whether you were wearing gloves or not really is by the by as far as I am concerned. It really does not add to your culpability or criminality in my view. The plan was the plan, and it existed and already had you inside the house to effect the kidnap. However, insofar as submissions were made on this topic by Mr Breeze and Ms Rolfe, I am satisfied beyond reasonable doubt you were each wearing them, the three of you.
65Having considered the evidentiary material and the submissions made by Ms Rolfe, I am ultimately not satisfied beyond reasonable doubt that you, Ms Aziz, at one point put your hand around Zahra's face and held your hand over her mouth, as Huda described in her statement. Had you done so it would scarcely have added to the criminality given my other findings. It may well be that you did that, but I am not satisfied of it beyond reasonable doubt. I am satisfied beyond reasonable doubt that you, Mr Al Hilo, pulled off Zahra's crucifix necklace and removed her earrings.
66As to the contention pressed only by Mr Breeze that I could make no finding of deprivation extending beyond the point that the two women were placed into the car, I totally reject that submission. He, and he alone, argued that the period of offending concluded once they were in the car. I am satisfied beyond reasonable doubt it continued well beyond that point with each of you a party to that exercise right up to Sydney. That was the whole purpose of the kidnap; to take by force these women back to the home they did not want to go to in each case. I note that Huda did not even live in Sydney. The binding and gag was not removed from Huda for quite some time. Zahra and Huda were placed into the back seat of Zahra's car. I note that Zahra at some early point had secretly undone her bindings.
67I am satisfied beyond reasonable doubt that a jacket was placed over their bindings and that the two women were placed into the back seat of the car. Why would that be if the kidnap had ended? What need would they have to go into the back seat and to be piloted away from the property in this manner? It was a significant if not fatal point as against the suggestion that there had been no kidnap. It is no less fatal to this strange argument run on the plea. As a matter of fact, there was a kidnap, the jury have concluded thus.
68I am satisfied beyond reasonable doubt of the various matters I have spoken of. Even without the direct evidence of the trip that followed, what likelihood exists of people being ambushed in this way and forced from the property in the way alleged, and then to no longer be compelled and deprived of their liberty? Had the kidnap come to an end, had there been no compulsion, why would they then be travelling in the manner described, and on that night for that matter? What was the hurry? Why would not either of the women have elected to leave Melbourne in a far less hurried fashion, tying up all the many loose ends that would need to be tied up before rejoining the family? Why was Zahra not driving her own car? It was because she had no say in any of these things, and nor did Huda. With hands bound and duct taped, Zahra was not a viable candidate to drive the car.
69With Huda who was gagged, they were bundled into the back seat. It was Zahra's car, and it had been parked by her at the front of the unit. You, Ms Aziz, were instructed to drive that car to the back where Mr Al Hilo's car had been parked. I have no doubt at all that was to avoid any observation of the obvious abduction of these victims. It had nothing to do with the ease of loading up belongings as was suggested lamely on the plea. I am satisfied of these matters beyond reasonable doubt.
70The owner of that car, Zahra, was bound and had no control over her movements, nor did Huda. Their phones were seized and placed in your bag, Ms Aziz, and there was complete phone silence from them for many, many hours.
71Robert Bains, who was in a committed relationship with Zahra, had arranged to meet her that very night and described the speed with which Zahra would either answer her phone or respond to texts or messages if she could not answer. He could not get through to her or Huda at all and his messages went unanswered. The first contact was several hours later, after the two women had arrived back in Sydney, a place they had no interest in going to.
72Every step of that trip they were not left alone. The two cars travelled in convoy. Even in the service station toilet it was arranged that someone would be outside the toilet cubicle. Even before then, the group checked out of the Novotel hotel, but with you staying in the car, Mr Al Hilo. Only Ms Aziz and Mr Kadhem went in. Why? Why did you not all go in, the five of you, or at least the three who had been occupying the rooms? Well, the two females in the back seat of Zahra's car were not in a fit state to be seen by any person uninvolved in the crime. It would have increased the risk of disclosure of the crime by the victims. They were bound and were being kidnapped. You stayed with them as you had to. You could not go in with them and they could not be left alone.
73At trial, the defence argued that the footage of their arrival at your house up in Sydney, Mr Al Hilo, gave some comfort as to them not having been kidnapped. It was a surprising submission as the footage showed two women, after a long trip up from Melbourne, arriving in the wee small hours at a place they had left behind months earlier and being ushered to the door at 3.41 am, moving just aimlessly – no property, no job, not even Huda's hometown. Given the verdict, as a matter of fact they were surrounded by the three who had actually kidnapped them.
74The fact is they had no freedom at any point on the trip up the Hume. The purpose of this crime was to take them by force back to Sydney, and that is exactly what occurred, and I am satisfied beyond reasonable doubt of the account given by Zahra in that regard. Indeed, the deprivation existed within the house in Sydney and whilst in the company of you, Mr Al Hilo, and though you were not present throughout, Ms Aziz or Mr Kadhem, this was your common purpose – you had not withdrawn from the agreement, nor you, Mr Aziz.
75The first phone contact was the Snapchat messages sent by Zahra to her boyfriend in Melbourne much later that afternoon asking him to get the police and complaining of being taken and fearing she would be killed. They are pretty instructive messages. See Exhibit B.
76I have not even mentioned in detail the circumstances in which the unit in Heidelberg Heights was left, which was relied upon to demonstrate the fact of the kidnap, but it is of use also when considering the suggestion of the crime coming to an end at the back gate or the door of the car in Heidelberg Heights. The unit had been rented for a 12-month period, only a short time before these events. See Exhibit A. The lease was entered on 11 July 2022 and this event took place on 30 August of that same year. They were excellent and responsible tenants who paid on time. They liked the unit. They left without one word to the owner. The unit was left in a disturbed state, not just the bits of masking tape and the roll of tape and the pliers, and the rope and the cap and the disturbed condition of the bedrooms. The laundry door was unlocked when Robert Bains checked and when he tried to lock it before the police arrived, it was hard to lock and he said it looked like it had been tampered with. See trial transcript 572. The front door was unlocked. There was a good deal of food in the fridge and dishes in the sink. It reeked of a departure without any choice at all – no property taken, no belongings, no time. Mr Bains even found Zahra's wallet with all her credit cards, her Medicare card and her New South Wales licence. These two women were both due at their workplaces the next morning and no notice was given at all to the employers or to the landlord: Just silence.
77Ms Rolfe in her cross-examination seemingly accepted that in the bedroom up in New South Wales the two women were whispering about escaping and going to the police station. Why would they need to be whispering and why would they be talking about 'escape'? These are things that might have struck the jury as being unusual suggestions given the defence case that they were in New South Wales voluntarily and had not been kidnapped at all and hence would be free to leave. Zahra in fact said that it made no sense. Of course, the word 'escape' was not an unusual term at all in the setting of a kidnap.
78Well, there was no dispute that the Snapchat messages were sent by Zahra and that the police attended and found the two women in your car and arrested you, Mr Al Hilo, and that the police then received at the scene an account from each of the women as to having been taken against their will. These things could not be ignored. The fact of the finding of the women or what they said could not be challenged, so they had to be explained, or more accurately in this case, virtually wished away.
79No burden rests on the accused to prove anything. There is no obligation to demonstrate why a witness might be lying. The suggested motive to lie raised in this case was quite forlorn. When it was put to Zahra, she said it made no sense. See trial transcript 182. In that, she was surely right. The motive was that nothing untoward had happened, that she and Huda had both agreed to come home and that no crime had been committed. No force, no violence, no weapons, two women just deciding to return voluntarily to their families. It was argued that in Sydney, Zahra had 'changed her mind' and wanted to return to Melbourne and hence had to, for some obscure reason still not explained, invent an account of being kidnapped and by doling so to implicate her much loved mother, father, brother and her cousin in the commission of very serious crimes. It was put to Huda that she just went along with that scheme.
80If no crime had been committed, if Zahra was free to return home, it is hard, if not impossible, to fathom why there would be any need for her to falsely accuse her much loved family members; she would just get in her car, as she would be free to do, and leave without any challenge, as she would be free to do. Of course, she had no such freedom at all travelling to or away from Sydney.
81The trouble was the Snapchat messages to Robert existed and this was the forlorn endeavour to deal with them. The need to give the motive to lie direction was as clear as day here as it was pretty likely that a jury would reject the motive, and they had to be given adequate instruction to guard against their misuse of that rejection.
82I am satisfied beyond reasonable doubt that their period of deprivation of liberty lasted until they were liberated by the New South Wales police. That was just after you, Mr Al Hilo, told them not to say anything to the police. See transcript 121, line 24. I am satisfied beyond reasonable doubt you told Zahra that as you saw the police moving in. I am also satisfied beyond reasonable doubt that when driving in Sydney, you told them that you had been following them in Melbourne and said you were going to kidnap Huda there and then when you saw her dropped off near the orange bridge, being the Coburg railway station, but thought that maybe you would grab them both together. See the trial transcript 122.
83I am also satisfied beyond reasonable doubt that you told Zahra that you had bought some tools to break into the house, but that the house was not even secure, and it took only one tool to break into it. See the trial transcript 123, line 22.
84You were obviously implicated in this venture, Mr Aziz, the verdict says as much. You of course were not present in the house and hence not involved in the physical acts. The jury verdict speaks of your complicity. You had joined in the agreement to kidnap these two women and that was well in advance of the attendance upon the house. You necessarily envisaged that force or coercion would be employed. I am not able in your case to be satisfied beyond reasonable doubt that you knew of weapons being employed or even rope or the duct tape. You knew there would be attendance without notice or warning and a forced taking away of your daughter and your niece. You were joined in an agreement that such force as was necessary would be employed. You cannot really distance yourself from that force which was employed as it was used to effect the kidnap. You were then involved in driving down to Melbourne to collect some belongings and you were on the road within a short space of time of the women being kidnapped.
85You, Mr Al Hilo, were talking to Mr Aziz as you travelled up the Hume with the women in the back seat.
86You must have entered the house from the rear, Mr Aziz, either by force or with a key. Mr Sturges did not tell me how. He was not obliged to, and nothing hangs on this finding. The fact is though that the front door lock had been changed by the time you arrived, and Robert Bains had dealt with the locking mechanism of the laundry door by then as well – he had locked it. I note that your phone, Mr Kadhem, had screen shots of the premises themselves and a pin dropped onto an aerial shot to the rear of the property.
87Those images were taken at 1.03 am – see Exhibit J – so well after your earlier entry, and I infer they must have been conveyed to your father or the person who accompanied him to suggest a parking spot at the rear. There is no other explanation for your having dropped a pin on that site at 1.03 am, for by then, you Mr Kadhem, were travelling north towards Sydney and had been so travelling for many hours. You would have already been in New South Wales. Whether you, Mr Aziz, met up with this group on the way and obtained the key to the rear door from Zahra's keyring, I simply cannot determine. There is no direct evidence of any meeting. Zahra, however, could not have had a key to the front door as the lock had been changed, and nor could you. Nor could you have had any keys to other doors unless of course you had met the other group on the highway. I do note that a single key to Zahra's car, as well as another car key on her key ring, was found upon a search of the Aziz family home at Hector Street. Ultimately, the position is I cannot know whether you met with your co-offenders enroute or how you got into the property. It does not actually matter at all.
88I could have as easily said at the start of this review, but say it now instead, Zahra was a most impressive witness. Her approach to the serious business of giving evidence has to be seen in the full context here. She had applied to be excused from giving evidence, citing real concerns as to her level of anxiety as to giving evidence against family members. She was worried as to the impacts or potential impacts upon ongoing family relationships should they be reestablished at some future point. She was worried as to the potential impact upon each of you of giving evidence and the potential custodial outcome. See my ruling at pp156 to 167. She was not excused and once called she took her oath most seriously indeed. She is one of the most impressive witnesses I have seen in my 14 years as a judge. She was very evidently taking no pleasure in the task at all. In the course of her evidence, she spoke of her love for various family members in the dock. I note also that her impact statement after verdict is a most compassionate one, returning to many of the sentiments she raised in her application to be excused. I am satisfied beyond reasonable doubt she gave a truthful account and was supported by the direct evidence of Huda. She, Huda, sought not to give evidence. She had tried to pull out of the case some days before, sending an email to the informant. Concern for the family troubled her. Plainly it still does, as we can see from her victim impact statement. She was called on a brief s198B examination, see 9 July 2024, pp1-5. She had no right to apply to be excused as she did not have the required family relationship. She took, in my view, a very minimalist approach when giving evidence and was happy enough not to disclose negative details about family members in what was an obvious endeavour to soften the effect of your conduct. Even in her first examination-in-chief, where she was not making much of an effort, her evidence was deeply damaging to those who entered the house in Heidelberg Heights. She was treated as an unfavourable witness and admitted the truth of her earlier statements as to what had actually happened. Her forlorn and tame account in cross-examination of 'silently agreeing' to go with the family members looked pretty sad and sorry, her silence driven by the fact that she was actually bound and gagged. I do not mean to be too critical of her, it simply demonstrates the exquisite difficulty of her position. What pleasure was there being called to give evidence against her much-loved aunt and uncle and cousins? None.
89I am sorry to have had to go through the factual findings in this manner in such depth, but I regret to say the unrealistic manner in which the plea was conducted, primarily by Mr Breeze and Ms Rolfe, but also in part by Dr Gerry, left me with little choice. There were some significant distractions thrown up by the way a number of the pleas were conducted. Whilst I acknowledge there has been some repetition, here I am on p24 of my sentencing remarks still dealing with the factual basis of sentencing. A short retort of 'what nonsense' would not have sufficed, as tempting as it may have been to proceed in that fashion in relation to many of the submissions made as to the factual basis of sentencing. So I have gone into some detail so that there is some transparency to my findings, but I repeat that none of you is any worse off by way of sentence as a result of the way the plea has been conducted on your behalf.
90I have, however, not done as I might have, and in these reasons trawled my way through all of the evidence citing a multitude of transcript references with page numbers. Anyone else is free to do that. Given the prominence of these factual arguments, particularly in Mr Breeze's written submissions, I read the entire pre-trial and trial transcript in the days leading into the plea and reviewed my notes of the addresses made to the jury. I have reviewed all of that material again since the plea. I have a very strong memory of the demeanour of Zahra Kadhem and the impression I was left with as to her veracity and reliability. I have seldom seen a better witness, one who was so evidently unhappy to be telling the truth in the way that she felt obliged to.
91Having engaged in this exercise, it is apparent that this was, in each case, a serious instance of kidnapping. Frankly, it would have been serious enough just on the bare facts asserted to exist by Mr Breeze, but of course it goes much further than he or Ms Rolfe or even Dr Gerry submitted.
92This was serious offending indeed and the impact has been large.
Impact
93I turn to that impact now. At the time of the plea there was no impact statement from Huda, though one would hardly need one to understand the short term or immediate impact of being forced from her home and her life in this city. She described in her police statement which she adopted in her evidence how frightening the event was. She tried pretty valiantly in her evidence to soften the effect of that immediate impact but did not succeed. I believe that she is back with her family. She had chosen at the time of the plea not to make a victim impact statement. That was not at all surprising to me given her endeavours not to give evidence and what she had said on the s198B hearing, and her trial evidence about her attitude to the offending and her family members. On 27 November an email dated 22 November from Huda dealing with her attitude to the offending was provided to the court by the Crown instructor. I made it clear by email sent that same day that I would not have any regard to Huda's email, and the reason why that was so. It was merely an email, one that was neither signed nor appropriately declared. It should not have even been provided to the court. Mr Breeze, by written submission filed on 28 November, argued that I ought defer the sentence for three weeks to permit Huda to file a formal victim impact statement. I made plain on the same day that I would not adjourn the sentence and I would proceed to sentence today (Monday 2 December 2024). The Crown provided a written submission urging the court to proceed to sentence. I had decided to procced in that fashion as Huda had been free to file a victim impact statement at any time since verdict in July and had declined to do so. It seemed to me that there was also still plenty of time for her to prepare a victim impact statement, either by declaring the email material in the form of a statutory declaration or by preparing a formal victim impact statement covering such subjects as she wished to cover. As I said earlier today, this case involves four prisoners: three need interpreters. We had three interpreters that had been booked for what will be a very lengthy sentence to be imposed today. In fact, we are down to two interpreters. It was not as simple as just selecting another day. Adjourning the case for three weeks, as was suggested by Mr Breeze, was simply not possible given my existing case commitments and with the end of the legal year fast approaching. Had I not maintained today's date, each sentence would have gone off into the new year, until at least late March, possibly even April, given my leave, trial and circuit commitments. None of you would have been held as sentenced prisoners with the various disadvantages flowing from that status. That was just not acceptable.
94In any event, my belief that it would be easily possible for Huda to prepare an appropriately declared victim impact statement proved to be correct. She did just that. Her victim impact statement dated 29 November was filed on that day – I have marked that as an exhibit in these proceedings. She speaks of the conflicting emotions and confusing feelings arising as a result of the family relationships. She tried to withdraw from the case but of course she could not. She has a sense of betrayal and loss. Her mental health has been deeply affected and she struggles with feelings of anxiety, depression and guilt. She feels in your case, Ms Aziz, Mr Aziz and Mr Kadhem, as though she has taken away a father, a mother and a brother from her two little cousins and a father from his two children in your case Mr Al Hilo. She has done no such thing of course. Your various individual actions have brought about this sad state of affairs, not any action taken by her. She is left with sadness and guilt and forgives you for your actions and the hurt they caused. She hopes to rebuild relationships in the future. She believes the impact of you being in custody has impacted her emotionally – she speaks of that. Mr Breeze filed yet another written submission, this time as to the way in which I should have regard to Huda's impact statement. He spoke of the forgiveness of Huda as expressed in that statement. His submission at paragraph 4 that there is no evidence of significant or lasting harm, and at paragraph 5 that there is no real harm identified, is quite unrealistic.
95Mr Lewin – acting for you, Mr Kadhem – seemingly adopted some of those submissions but then seemingly retreated from them.
96There was no physical harm. She has, however, described in that portion of the impact statement the emotional impacts of the crime. We are now almost two and a half years removed from these crimes. The impact statement describes how she feels about these crimes all these years later. She is forgiving of you all, and I do not ignore that fact, but she is left in a state of turmoil and confusion and so much of that arises from the relationship that she had to those who offended against her and the conflict caused by that fact. She is left with feelings of confusion, anxiety, depression, sadness, betrayal, loss and guilt. She concludes by speaking of the emotional scars left by the whole experience. Mr Breeze's submission, it seems to me, simply ignores that fact. I cannot and will not.
97Zahra has made an impact statement dated 6 November. She read it aloud at the plea hearing using the audiovisual link. I ignore the portions of that impact statement identified by Ms Rolfe. What a remarkable impact statement it is. Your crimes have deeply wounded her, and she has also felt a deep sense of betrayal and loss. It has shaken her trust in people and removed her sense of safety. She feels deeply hurt and betrayed. She tries to explain why it was she left home. She was seeking a different life, and even though she left she still loved her family deeply. She cared for her mother and father and brothers and sisters and had told you, Ms Aziz, that when the time was right, she would come to Sydney on her own terms, not to stay, not to live under the family roof, but to visit. Why on earth did you not all wait for that to occur? This incident drove a stake through those hopes. Her choice was taken from her by the people that she loved. She said to you in the bedroom that you had ruined everything. She described that moment in her evidence before the jury. She tries to set out in her impact statement your perceptions of the conduct, but she really cannot make sense of it. She still loves her family. She loves her mother and father and brother. She describes her forgiveness for her father and mother and brother. In your case, Mr Kadhem, she raises issues as to your capacity to have a real choice in any of this, but of course you did. You know you did. You should never have boarded that flight. She completely forgives you. There is no such sentiment directed to you, Mr Al Hilo, and she speaks of being in fear of you, though I hasten to add it has not been suggested there has been any reprisal or anything of the kind. She feels let down and betrayed by those who were important in her life.
98She hates discussing the relationship that she has with her family with people outside the family when they ask. She changes the subject.
99She is deeply troubled by your incarceration and your being in prison brings her no peace. She describes how that affects her.
100She is left with so many unanswered questions, with fear and lingering confusion about this incident. She says her pain will remain whether you are locked up or not and that your being locked up brings her no peace.
101She pleads for leniency, at least for her immediate family members.
102It is a moving impact statement. This is the person who was compelled to report your conduct. This is the person who told the truth about it but who wished to be excused owing to her concerns for her family members and the hope that there might be some relationship established in the future.
103She was then essentially ‘put to the sword’ by three of the four of you in the course of this trial with what she regarded, correctly, as bewildering allegations as to why she would have made up such serious allegations against her loved family members.
104Still that person, one of your victims, pleads your case, Mr and Mrs Aziz, and Mr Kadhem. Do not ever forget that. Huda takes the same approach in relation to you all. Do not ever forget that either.
105The impact upon Zahra has been vast and that has been exacerbated by the relationships she had with you, the offenders.
106It summonses up massive conflict in her mind.
107I do not accept Dr Gerry's submission that somehow the impact statement should be read as limiting the impact of your conduct, Mr Kadhem – it does no such thing. Rather it raises a level of understanding in her mind as to why you came to be involved in such serious criminal behaviour.
108I do not ignore her impact statement or Huda's impact statement. It is very sad how your crimes have so deeply wounded Zahra. I can, however, only give limited weight to a plea for leniency made by each victim. The very nature of the offending being committed by family members is a matter of some seriousness. It is not surprising that Zahra feels these things, or Huda. It is not surprising that Zahra has this sense of turmoil and conflicting emotions about what you did and who you are to her. It is not surprising that she and Huda plead your case. It is not even that surprising that they forgive you, but forgiveness is not, as it sometimes is, indicative of healing and lack of ongoing impact. Zahra speaks of large impact indeed.
109I undoubtedly have here the forgiving attitude of the two victims.
110A victim's attitude cannot govern the court's approach to sentence. Indeed, the attitude of a victim to the degree of sentence is generally irrelevant. Forgiveness or evidence in that regard may indicate that an offence and the effects of it have not been long lasting and so be indicative of less by way of psychological and mental suffering. See the case of Skura[6]. That is simply not the position here.
[6] R v Skura [2004] VSCA 53
111Zahra's forgiveness does not indicate the effects have not been long-lasting, nor Huda's. They have been and remain profound in the case of at least Zahra. There has to be caution in having regard to this sort of statement when made in the context of family violence as these impact statements have been made.
112As I have said, it cannot govern the approach to sentence. I can only give very limited weight to a plea for leniency made by a person in the victim's predicament, especially in a setting where the impact has been so large as it has been in Zahra's case in particular. See also the case of Sa [2004] VSCA 182.
113I take into account the impact as I am required to here. In Zahra's case it has been enormous, and it will continue deep into the future.
Mitigation
114Let me turn now then to the various matters raised on your behalf in the course of the plea conducted by your respective counsel. With the exception of Mr Sturges for you Mr Aziz, there was a large quantity of written materials filed including reports, work and character references and the like. Each counsel had prepared written submissions. As to the references and reports, it would serve no useful purpose in my setting out each document filed on the plea and then extracting portions from them. I will not even list them all. The exhibit list does that.
115So much of the written material filed on your behalf, Mr Al Hilo, and for you Mr Kadhem, was in the manner of character references to demonstrate your past good conduct. Well, that was not in issue in relation to any of the four of you, and I must say there were some issues with a number of the character references. I will say a bit more about that later. The fact is I have read all the material again since the plea and I have also read the various written submissions and reminded myself of the oral submissions made.
116Each counsel provided some details as to your personal and family background. Things such as where you were born, where you grew up, any difficulties in that regard, your educational levels, relationship history, work record, if any, and how you have been travelling since these events both in and out of custody. Each dealt with the absence of any past criminal history, your previous good character and your prospects of rehabilitation. Counsel made a number of submissions as to the relative gravity of the offending and the weight to be given to the various sentencing purposes in this case. Some made submissions as to motive, and those who did represented this offending as being less serious given the family connection and reasons for offending. I have reservations as to that submission which I will address later in these reasons.
117As I have already mentioned, a number of submissions were made by some counsel as to the factual basis of sentencing, as to what I should find and what I ought not be satisfied of beyond reasonable doubt. I have spent already a large amount of time, probably far too long, dealing with those matters and my findings, so I will not restate them all again now or even necessarily later in these reasons.
Al Hilo
118In the course of the plea conducted on your behalf, Mr Al Hilo, your counsel relied chiefly upon the following matters in mitigation:
·your disadvantaged background (Bugmy[7]);
·the application of a number of principles from the case of Verdins[8] (limbs 1,2, 3, 4 and 5);
·some increased custodial burden flowing from separation from your children and your concern for your business and its employees.
[7]Bugmy v The Queen [2013] HCA 37 (‘Bugmy’)
[8] R v Verdins [2007] VSCA 102 (‘Verdins’)
119He made some submissions as to complete concurrency. He argued that an exception was made out under s5(2H)(c)(i) of the Sentencing Act, and if so, that the statutory impediment to a combination type order was removed. He recognised that even if the exception was established, it did not lead directly to that outcome. He was arguing that I should find the exception made out and that I could impose a term of imprisonment equating to your pre-sentence detention and release you onto a community corrections order. He did not concede that if the exception was not made out that a head sentence and non-parole period was required.
Kadhem
120In the course of the plea conducted on your behalf, Mr Kadhem, your counsel Dr Gerry relied mainly upon the following matters in mitigation:
·your relative youth;
·the application of a number of principles from the case of Verdins limbs 1, 2, 3, 4 and 5); and
·some increased custodial burden flowing from your relative isolation in this State.
121She, as with other counsel, made submissions as to your role and the timing of your reaching agreement to commit these crimes. She argued that took place, in your case, only once you were inside the house.
122I asked her directly whether she wanted me to have any regard at all to some material which had not been placed before the jury. That was the text exchange between you and your sister Fatemah, set out commencing at p455 of the depositions. For reasons not disclosed to me, the Crown chose not to lead that evidence in your case and your own counsel at trial, Mr Kozlowski, chose not to elicit it in cross-examination. Perhaps the parties at trial thought it was a nil-all draw as I suppose that communication went in two different directions with an aspect of seeming reluctance or being drawn in, but also a recognition of the sort of crimes and potential outcomes that might arise. You then flew from Brisbane to Melbourne. As I say, Mr Kozlowski who conducted the trial, no doubt had the capacity to cross-examine that text traffic in if he thought it advantageous to do so. He did not. That was a forensic decision made with perhaps the sense that the text may be used by the jury as going to the existence of an agreement and as bearing upon the probability of the kidnap having taken place as described and hence making more likely your conviction. I am not stating that that was the wrong decision, in fact I think it probably made good sense on the trial. You, however, have now been convicted. On the plea I wondered to what extent I could or should have regard to that material not placed before the jury. That is why I posed the question to your counsel, firstly to ensure that she was awake to that material as she had not been trial counsel, and secondly to understand her position. I was not trawling through the depositional material looking for matters that might aggravate. I mentioned the text exchange only as it seemed to me that at this stage there might well be some mitigation to be drawn from it. Maybe we were at cross purposes, but she was quite explicit, and as senior counsel acting on your behalf, submitted that I should have no regard to that material one way or the other. I will come back to that later, as I must say, I have been troubled by that submission.
123At an early stage of the plea, she submitted to me that there was rather a lot of remorse in your case. I do not know what motivated her to make that submission. It should not have been made. The evidence simply did not support that submission at all. She retreated entirely from that submission in the course of the plea. She mentioned the importance of not creating a situation where sibling reconciliation is impossible. See paragraph 20. That was also a strange submission. I am not acting as a family mediator, and in any event, whatever I do in the exercise of my sentencing discretion, Zahra forgives you and you have nothing to forgive her for, and the same applies for Huda. Zahra did nothing wrong. There is no roadblock at all to reconciliation, but what I must do is I must pass an appropriate sentence.
124
Dr Gerry argued that an exception was made out under either s5(2H)(c)(i) or (ii) of the Sentencing Act, and that that being so the statutory impediment to a combination type order had been removed. She argued that I ought impose a term of imprisonment equating to your pre-sentence detention and release you onto a community corrections order. Failing proof of the exception, she submitted that a straight sentence equating to your pre-sentence detention was open. The logic of that submission is quite flawed. I ask rhetorically: how could a greater penalty be imposed for someone who has established the exception and who accordingly has substantially less culpability or a substantially greater custodial burden? It really made no sense at all. It seems that she was not prepared to have the words 'head sentence' and
'non-parole period' fall from her lips and so made these submissions which,
if acted upon, would have led the court into error.
Nadha Aziz
125
In the course of the plea conducted on your behalf, Ms Aziz, your counsel
Ms Rolfe raised the following matters in mitigation:
·your disadvantaged background;
·the application of all of the principles from the case of Verdins (1, 2, 3, 4, 5 and 6);
·independent of Verdins limb 5, an increased custodial burden arising from your concern for your children being cared for up in New South Wales, your isolation from friends and relatives, your physical health predicaments as well as your level of isolation given the language issues. She took me to the circumstances of your first period on remand and the COVID impacts at that stage. She also took me to the details of the second remand.
126Her primary submission was that a prison term equating to your pre-sentence detention would be open here.
127If not so open, she argued that an exception had been made out under s5(2H)(c)(ii) of the Sentencing Act and she argued that the court ought impose a term of imprisonment equating to your pre-sentence detention and release you onto a community corrections order.
Fuad Aziz
128Finally, to you, Mr Aziz, where in the course of the plea conducted on your behalf your counsel, Mr Sturges raised the following matters in mitigation:
·your age and past good conduct and absence of any past convictions or findings of guilt;
·your separation from family and loved ones and concern for them.
129He reminded me that any allegations of violence alleged to have taken place in the family home previously ought not be taken into account. Plainly that is so. His was a much simpler, and if I may say so, far more realistic plea than the three conducted before he rose to his feet. He conceded the seriousness of the offending and that I would be left with no option in your case but to impose a head sentence and a non-parole period. He did not seek to fall within any of the exceptions set out in s5(2H) of the Sentencing Act 1991.
130In each case I will need to consider role and also apply the principles of parity of sentence. All things are seldom equal and of course they are not here. I have heard four pleas in mitigation. Though you were joined by way of agreement to commit these serious crimes, you are not a 'job lot' by way of sentence.
131I have to pay regard to the individual matters in mitigation and aggravation as exist in each case. One very obvious factor raised now, simply to illustrate the point, is that you, Mr Kadhem, were a young man and one offending with important adult figures in your life who should have known better than to involve you in this conduct. I will return to parity of sentence a bit later on, but between now and then I will traverse a whole range of individual factors which compel some differences in sentencing outcome.
Prosecution
132Mr Singh had prepared some written sentencing submissions spanning eight pages and which were marked as plea Exhibit B. He made some oral submissions as well dealing with some of the matters raised in mitigation in the various pleas. The written submissions set out the chronology of the matter before the court, the maximum penalties, as well as the details of the category 2 scheme. The submissions dealt with the inherent seriousness of kidnapping as a general proposition and descended to some detail of the matters in aggravation said to exist in this case from paragraph 7. Of course, some of those matters were in areas the subject of the defence submissions as to the limited factual basis open to me. The Crown argued that those features of aggravation were plainly established here and that these instances of kidnapping ranked as serious examples of the offence. He took me to the way the case had been opened and the way the Crown had asserted to the jury that the agreement was proven. The Crown submissions challenged a number of the findings said to arise in the case of a number of the given accused. For instance, they took issue in your case, Mr Al Hilo, that any of the principles from the case of Verdins arose here. In your case, Mr Kadhem, they argued that only the fifth limb had any operation here. The Crown also accepted some of the submissions, including of course in your case Mr Kadhem, the relative importance of your youth, and in your case, Ms Aziz, the application of the various principles from the case of Verdins.
133The Crown challenged that either you, Mr Al Hilo, or you, Mr Kadhem, had carried your burden under the s5(2H) category exemption raised by your respective counsel. They accepted in your case, Ms Aziz, that it would be open to the court to find the level of increased burden sufficient to satisfy s5(2H)(c)(ii). In your case, Ms Aziz, they submitted that though it would be open to consider a combination-type sentence that the custodial portion served to date would not be sufficient.
134They were obviously arguing in your cases, Mr Al Hilo, Mr Kadhem and Mr Aziz, that the only appropriate sentence here in each case was a head sentence with a non-parole period. So much had been conceded by Mr Sturges on your behalf, Mr Aziz.
276I am satisfied beyond reasonable doubt that you were told to move the car to the rear of the property, Ms Aziz, and that was done to avoid detection and that you knew that fact. I have no doubt at all that the phones were confiscated and placed into your bag, Ms Aziz. I have no doubt that was a joint decision consistent with the agreement that these two women would be taken against their will. It would not have been sensible to have left them in the back seat with communication devices or freedom of movement for that matter. I have no doubt at all that you, Mr Al Hilo, pulled off Zahra’s crucifix. As I say, I will not repeat all the findings that I made beyond reasonable doubt earlier in these reasons.
277Many of the arguments dealt with either the complete absence of any weapon or binding or rope or if satisfied beyond reasonable doubt that those items existed, the difficulties in finding as against a given participant that carriage or use of such an item fell within the scope or terms of any agreement. They were strange submissions in that you were joined in an agreement to kidnap and kidnap necessarily involves force or threat of force. None of the acts that I have described veered wildly off course from that end goal and they were observable by the players within the house with no one withdrawing or raising the slightest issue. The event commenced with violence by you all in the setting of an ambush.
278Mr Aziz, you were not even in the house. You have been found to have joined in agreement that the two women would be kidnapped. This was not some agreement reached after they had been removed from the house. Your counsel reminded me of the jury question in that regard and my answer. Your counsel conceded at paragraph 5 that you were aware of preplanning and were party to the agreement prior to the group departing Sydney. I note that people left Sydney separately, Mr Al Hilo driving on the 27th and Ms Aziz flying a couple of days later. You, Mr Kadhem, came from Brisbane. Mr Sturges conceded that your involvement, Mr Aziz, was not spontaneous. Nor did he join in the unrealistic submission made by only one other that the duration of the kidnapping was limited to the point they got out the back gate or into the seat of the car. Part of your role was to drive down to Melbourne and clear out the house. That was not some afterthought. Your high culpability was conceded by your counsel. Plainly, you contemplated they would be taken away, deprived of their liberty without their consent and that there was no lawful justification. Equally plainly the agreement reached between you and others to the agreement was that this would be done by force or with some form of coercion. You left to those who attended the property the decision as to the extent of the force required and no doubt that would depend upon what took place within the house and the attitude of the women and the extent of their compliance, or resistance for that matter. It is not mitigatory that you were not physically present and fixed with knowledge of all that took place and the extent to which force was employed or weapons wielded.
279I do accept there is no evidence that you were awake to the likely presence of weapons or rope or duct tape and indeed my finding is that it is likely that at least the knife or knives if there were two, were not even carried to the premises. Nor the gloves. But these are small matters in my judgment. It was hardly out of contemplation that violence or force would be employed and that the unwilling players would be physically limited in some way for a nine- or 10-hour trip to Sydney. It is your reaching agreement to kidnap with these others who attended which confers criminal liability and you can hardly actively distance yourself from the physical acts which are consistent with that joint intention being carried into effect by your co-offenders. Namely the forced removal of these women.
280Much of what I have just said applies with the same or even greater force to the three who attended this ambush, for that is what it was. The agreement had been reached that these women would be taken and forced back to Sydney. The secrecy of the attendance in Melbourne and at the Heidelberg Heights property and entry prior to the arrival of the occupants speaks of a level of planning and intent.
281
I do not for one moment accept that you, Mr Al Hilo, were coming down to talk or persuade Zahra or Huda to return home. Your task was to find them and you were doing that with a view to kidnapping them. I am satisfied of that beyond reasonable doubt. You followed them to various places including a café, their work and their home and you reported your success to your
co-accused, Ms Aziz. She then boarded a flight from Sydney. I am satisfied beyond reasonable doubt, Ms Aziz, that you were not coming down to Melbourne to persuade or plead and I have no doubt that by then, the plan had been reached to kidnap the two women. It should not be forgotten that the last time Zahra had seen her family, she was fleeing from them to the police station in Sydney and she had deliberately hidden her and Huda’s location in Melbourne. There could be no expectation at all of them being amenable to persuasion. It had gone far beyond an act of persuasion. Mr Kadhem’s ticket from Brisbane had been ordered in your name, Ms Aziz. The team assembling in this city to 'persuade' was growing. Persuasion was not the key by this point. I note that you, Ms Aziz, and you, Mr Al Hilo, left the Novotel Hotel at 6.13 am on the day of the kidnap. There was ample time to go to the unit and speak to the two women if that was your charter. It was not.
282Indeed in the car up in Sydney, you, Mr Al Hilo, had mentioned to Zahra that you were going to kidnap Huda when you saw her dropped off in Coburg but thought it better for you to grab the two women at the same time.
283What was required was sufficient manpower to achieve the joint purpose and return the women to Sydney. Two young women were being taken from their home and for that to be undertaken by Mr Al Hilo and just one other, Ms Aziz, was not sensible. The three family members had by the evening of the 29th assembled in Melbourne, still with nothing done to alert Zahra or Huda to their presence. Perhaps in your mind, Mr Kadhem, there might have been some hope to talk sense into the other players. I have been debarred by your counsel from acting on the text exchange with your sister, Fatemah, commencing at p455 of the depositions. No doubt I would act on that submission if to do otherwise would lead to a finding being made against you. If it in any way worsened your position in terms of the sentence to be imposed, I would of course heed that submission made by Dr Gerry. However, that email suggests to me there was still perhaps some feint glimmer of hope that you might be able to talk others out of any action. At the very least it speaks of your mindset on the 29th, that of pretty reluctantly being dragged into an event. That was why I raised it with your counsel. Surely there is some mitigatory value in that text exchange when combined with your youth and the relationship you had with those others who have been convicted of these crimes. In that setting then, I will simply ignore Dr Gerry’s prohibition upon me using those texts. I am aware of them and I feel a sense of discomfort reaching a finding against you that you had joined the agreement before leaving Brisbane. Maybe you had. However, in your case there exists the possibility that it was only once in Melbourne that you joined the agreement, either on the night of your arrival or even early the next morning. Once the secrecy was extended. Further, as I say, the text spells out to me at least, that you had a sense of some reluctance and felt you were being dragged into an event you did not want to be dragged into. That cannot damage your cause in this sentencing exercise. There is nothing negative that I take from the text and hence I am prepared to have some regard to it even though it was not before the jury and even though Dr Gerry said I should not have regard to it. I should say I will have no regard at all to that text traffic in relation to the other three sentencing exercises. Or any other material not actually before the jury.
284You and the other two attended, parked at the rear and broke into the premises and the rest is history. It is plain indeed that you did not join the agreement only after entry to the unit. I am satisfied of that beyond reasonable doubt. You were in there with the other two and the three of you swung immediately into violence and abuse when the women arrived home. Huda was pulled down to the ground by your mother and you got on top of her holding an object to her side and said words to the effect, 'You think you can run away from home, you’re a slut, I have a knife in my hands, don’t move, don’t scream’. Whatever reluctance might have existed the day before was well and truly a thing of the past.
285This was not spontaneous offending by any of you. There was a level of calculation and planning here but of course as with every other aspect of the case, you are not to be dealt with as a ‘job lot’. I have differing culpability arising from matters such as the application of the Bugmy principles or the application of limb 1 of Verdins in Ms Aziz’s case or your youth and level of disadvantage, Mr Kadhem. I have made differing findings as to the point at which each of you joined the agreement.
286On any view of it though, this was really serious offending. These are, in my judgment, serious instances of the crime of kidnap, a crime punishable by a 25-year maximum prison term.
287These steps that you took, the degree of planning and the premeditation are matters of aggravation. It was, in my judgment, an exercise in possession and control, not in any way driven by the claims made as to safety concerns for either of the women. I reject that account entirely. It was offending driven by your wish to have them living with their families whether they liked it or not and so to have them compelled to live at home consistent with the strict family cultural or religious values. They had transgressed by leaving their respective families. They were not in any way at risk other than from your conduct. I mentioned earlier Ms Aziz, you posed the question to Mr Jackson, 'I am her mother, what am I supposed to do?'.
288Well, the answer is let them live their lives. They were adults, one adult not even your daughter, each though free as adults in this country to exercise a choice as to how and where they lived their lives. They were not items of property. There was this strange aspect raised on the plea by some counsel of the family relationship being somehow mitigatory. It really is not . These crimes were contrasted with different styles of kidnap for instance one where a ransom was demanded or victims were seriously injured in a criminal setting (see the Al Hilo submissions paragraph 19). Well I am not dealing with that sort of kidnap. Had there been any injury, serious or otherwise, no doubt there would be a separate charge covering such conduct. Here these two women were kidnapped out of their own house by members of their family. Zahra’s evidence given before the jury and her victim impact statement spell out how deeply the family connection to the offending contributed to the impact that she has felt. Those sorts of things would not exist in the setting of a kidnap by a stranger. Huda described the same sort of conflict.
289It was also strange in the sense that you do not recognise that you have done anything wrong. None of you. You are all able to somehow still justify the conduct as it was connected to a 'family issue'. You still do not acknowledge any fault, despite your conduct, being arrested, charged, being convicted and despite seeing your family members wrestle with the task of giving evidence. I have Zahra’s sad impact statement. She feels remorse but should feel none. Huda feels some guilt. She should not either. You all should feel great remorse but feel none. Your conduct has brought them to that sad place that they describe.
Parity
290
Mr Sturges mentioned the need to pay regard to parity of sentence. In the broadest sense, parity is the notion that like co-offenders will be dealt with in a like manner. Ordinarily if there are no points of distinction between the related offenders or their roles or their backgrounds, then the same or, at least, very similar sentences should be imposed by the court. That is an
over-simplification of the principle, but it suffices for present purposes. It is a principle which makes good sense.
291The hope is, that by applying this principle, courts will remove or eliminate any justifiable sense of grievance as might exist between co-offenders. This principle of parity is very easy to state in the hypothetical, as I have just done in a brief sentence or two. It is a much more difficult principle to deal with when actually passing sentence as a real judge in a real case grappling as I must here with all sorts of differences. There is almost never such a thing as a ‘like offender’ or ‘like backgrounds’. There are far more commonly differences in the individual features of the offenders or in their role or, as is often the position, in both.
292I said earlier, you are not, the four of you, a 'job lot'. The way the four pleas were conducted spelt out the myriad of differences. I heard submissions as to differing extent or degree of involvement, differing role, differing levels of culpability and age and background. Differing levels of custodial hardship. So there were many individual features in mitigation and aggravation. An obvious example just to illustrate the point is the age of Mr Kadhem and the importance of youth in the sentencing task. That is a matter of real significance in his case but it has no application in the other cases before me.
293I commenced this topic by describing how parity stands for the proposition that like-offenders will be dealt with in a like-fashion. Well, plainly all things are not equal here. There are many differences as between you all. The differences in sentence and there will be differences, well, they must be capable of rational explanation. It is why I have spent so much time going through the individual features in each of the four cases before me. You are not a ‘job lot’. I will select individual sentences. It cannot be one size fits all even though you were joined in agreement. I will make individual orders as to the extent of cumulation. I will fix an appropriate non-parole period and at each step of the way, I must have regard to the individual matters before me, both as to aggravation and mitigation.
294I apply the principle of parity of sentence to my task.
Purposes
295I have to consider a number of purposes of sentencing.
296I must pay regard to your prospects of rehabilitation. I have already pronounced, in each case, my findings in that regard. They are all favourable prospects in my judgment.
297I am required to punish you for your crimes, though I must do that justly and proportionately. Punishment is an important purpose of sentencing in this case.
298Then there is the need for this court to express denunciation of your conduct. That is an important purpose of sentencing here given the seriousness and context of the offending. You had no right at all, any of you, to be dealing with these two adults in this manner. It was outrageous behaviour to attend upon their home and to kidnap them and take them interstate in the way that you did. I must strongly denounce your conduct. You should all be ashamed of yourself and yet none of you is.
299I cannot ignore specific deterrence which is the need to deter you from offending in the future. It is not encouraging that none of you publicly acknowledge that you have done anything wrong. The persons at fault in your mind are Zahra and Huda. Be that as it may, I believe that specific deterrence can be moderated owing to my favourable findings as to your future prospects, the complete absence of any past offending, the material touching upon past good character and what I judge in each case to be the low risk of reoffending in this or any other way in the future. I am confident the sentences I will soon impose will serve to deter you to a degree. That the time you have spent already in custody and the time that lies ahead will serve to deter you to a degree. There is some Verdins moderation of this purpose in your case, Ms Aziz.
300General deterrence has greater importance in my task. That relates to the need to deter other offenders. It is not unknown for family or cultural or religious values to lead to disagreements when there have been endeavours to enforce strict adherence. It is not unheard of for these sorts of matters to wind up before the courts when there has been a disagreement as to the manner of living and a ‘striking free’ from what are set up as the family values. When a child, young or mature, strikes free of those restraints as they did here, there can be disharmony and even interference, sometimes criminal in nature, as here. Still you fail to recognise that you have done anything wrong. Still you all pray in aid through counsel the values you were seeking to enforce. The notion that it is somehow less serious as this was a 'family matter'. That may well be the view taken within your own community and there are some worrying statements within the expert reports and even in a few of the references including damage to your reputations. It is not unheard of for people to try to enforce upon others strict values whether religious or cultural. Well, the message must be sent loud and clear that this sort of conduct is quite wrong and will not be tolerated. The claim of this being a family affair is simply untenable. Families are free to have disagreements. There is no impediment to parents spelling out the rules which must be observed for an adult to live under the roof of the family home. Of course, it lurched a long way over the line, for this was serious criminal conduct. Attendance from interstate and a kidnap of adults, removing them from their life in this State. This was really serious criminal conduct. The courts must accordingly send a loud message to any other family or person seeking to enforce their values upon persons as happened here. I have to try to deter others from doing what you have all done.
301Again there is some moderation on a Verdins basis in your case, Ms Aziz. There is moderation of all of the punitive purposes in your case, Mr Kadhem, by virtue of your youth. Nor am I going to keep mentioning for those where Bugmy was enlivened, the application of those principles and the moderation allowed for.
302I must also pay regard to community protection. For the same reason as I announced when dealing with specific deterrence, this purpose can be moderated here. If you had criminal histories or some record of disobedience to court orders and the law, well of course specific deterrence and community protection would assume far more importance in my task. That is self-evident.
303The community has never needed protection from any of you in the past and my hope, indeed my sense, is that is likely the position in the future.
304I must have regard to the maximum penalties. Kidnap has a 25-year maximum term which gives you a sense of the seriousness with which Parliament views the offence.
305I must also take into account the impact. It has been, in Zahra’s case, enormous. The impact has been very much contributed to by the family relationships and her disbelief that her family could act against her in this way. She has also been dealing with the ramifications for her family who offended against her and her concern for them. Huda's impact statement speaks of similar sentiments.
Current Sentencing Practice
306I must take into account current sentencing practices. They are not a controlling factor. They are only one of a large number of matters which I must take into account. I have looked at the SACStat online data for the common law offence of kidnap. Given the date span of that data, it would be likely to include some data from sentences imposed when the Category 2 provisions did not apply given that those provisions came into force for offences committed after 20 March 2017.
307Where prison was imposed as it was for the vast majority of charges, individual sentences spanned periods of less than a year to above seven and below eight years. Case outcomes were higher obviously ranging from below one year to 10 to 11 years.
308As I said in another case last year, a case concerning kidnap, that data is quite unusual. One would expect that the sentences for kidnap represented in that data spanning the period July 2018 to June 2023 would relate to varying levels of offence seriousness, from the least serious to more serious, even far more serious examples of the offence. If that be so, it strikes me as unusual that the data fails to disclose an even spread of sentences. The highest individual sentence imposed falls well below a third of the offence maximum penalty. This is an inherently serious offence, with a 25‑year maximum term. It is a bit difficult to see how a serious example of the offence is punished at that sort of level.
309Of course, the data gives no real clue as to the seriousness of the offences represented in that data. It does not give any clue as to matters in mitigation or aggravation. It would though be likely that a large number of the cases reflected in that data had been the subject of a guilty plea. In each case it was your right to run the matter to trial. You are not to be punished for doing so. It is not some feature of aggravation. However the practical ramification is that none of you have any of the very sizeable benefits that would apply to someone pleading guilty at an early opportunity and one who is genuinely remorseful for their crime. These mitigatory features are worth a great deal indeed and they are completely absent here.
310Statistics have inherent limitations. They do not drive my task or provide any answer to the actual sentence required in this case. I am exercising a sentencing discretion in each case here, not acting as a statistician.
311I have looked at the Judicial College of Victoria kidnap sentencing case collections but observe that other cases are merely examples of other sentences imposed on other offenders by other judges for other crimes. One can never find a case on all fours and even if one could, it would not operate as some precedent. There is no such thing as one correct sentence.
Totality
312I take into account the principle of totality of sentence. In each case I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon any of you and to ensure that the overall effect is commensurate with your overall criminality. Plainly I will not impose an aggregate sentence. There are only two charges and they each relate to separate victims. An aggregate sentence is, in this setting, not appropriate. Some submissions were made by Mr Breeze suggesting there was no basis for any cumulation as between the sentences imposed. That is impossible to accept. Though these two offences occurred as part of this one course of conduct, I cannot just ignore the fact that there were two individual victims each affected by the crimes. Their being exposed to the ‘same’ conduct and ‘same ordeal’ does not lead to concurrency at all. The four of you are not to be treated as a job lot and nor are they. They are each victims, individual victims of a serious crime committed by each of you upon them and it is my view that there must be a decent level of cumulation to recognise that very fact. I have considered the extent to which I differentiate the sentences imposed in relation to each victim. Each offence was, in my mind, undoubtedly a serious instance of the crime of kidnap.
313Ultimately I have decided to make the sentence imposed for the kidnap of Zahra the base sentence. That outcome is not driven by the conduct against Huda being less serious but rather because in Zahra’s case, I have a greater level of detail as to the extent of impact upon her.
314For reasons which I advanced when dealing earlier with the Verdins submission, I do not accept that you, Mr Al Hilo, or you, Mr Kadhem, have come even close to establishing the specified exception or exceptions as set out under s5(2H of the Act. Your counsel in each case pointed to the exception under 5(2H)(c)(i) and in your case, Mr Kadhem, that exception as well as the exception in 5(2H)(c)(ii). I am not satisfied on the balance of probabilities that any of those exceptions are made out here. The fact is even if established, a substantial prison term would still have beckoned given the seriousness of this offending.
315
Your counsel, Mr Aziz, did not even try to bring you within any exception. Nor should he have. None of the exceptions arose in your case either. Your counsel conceded the inevitability in your case of a head sentence and a
non-parole period.
316
In your case, Ms Aziz, I am satisfied on the balance of probabilities on the evidence placed before me that you have established the exception under s5(2H)(c)(ii) of the Sentencing Act. That you are subject to that substantially and materially greater prison burden by reason of your impaired mental functioning. That at least removes in your case the statutory impediment to a combination-type order. In fact, your counsel was suggesting that a prison term equating to your pre-sentence detention would suffice with no need for any further order. That plainly is not so. That outcome would be totally inadequate. Her secondary position was that if time served did not suffice, that a Community correction order in combination with a prison term would suffice. She was arguing that the prison component could be the existing
pre-sentence detention. That you should be released forthwith onto such a community correction order. The Crown whilst not challenging that a combination-type sentence would be open to the court in your case, did take issue with the submission that the custodial component equivalent to your pre-sentence detention was open.
317Various counsel have referred me to the case of Boulton. Of course given my finding, I am not as a matter of law free to combine a prison sentence with a Community correction order in any case other than Ms Aziz’. In her case, I can do so only if I am satisfied that such an outcome falls within the sound exercise of my sentencing discretion. I would have only an additional one year of prison at my disposal.
318I need no reminder in any of the cases that sending a person to prison is always a disposition of last resort. A court will never impose a more severe sentence than is required to achieve the various purposes of sentencing. If a sentence equating to pre-sentence detention was sufficient in any case to achieve the purposes of sentencing, then I would be duty-bound to proceed in such a way. Plainly a sentence at that level is not open for crimes of this magnitude following a trial verdict. Such an outcome would pay no proper regard to any of the purposes of sentencing. It would be a completely derisory response.
319I will go one step further. If a combination-type sentence was theoretically open to me in your case, Mr Al Hilo, and your case, Mr Kadhem, that is to say if the statutory impediment had been removed, which it has not, that sort of outcome would still not come close to achieving the various purposes of sentencing. I would proceed by way of head sentence and non-parole period even in that setting. But a combination-type sentence is not even theoretically available to me for either of you. Plainly I must impose a head sentence and of a dimension requiring the fixing of a non-parole period.
320Though the statutory impediment to a combination-type order has been removed in your case, Ms Aziz, that is not the end of my task. Does such an outcome fall within the sound exercise of my sentencing discretion? I do not ignore the submissions made in this regard by the Crown.
321I am however not bound by submissions as to penalty made by either side. I have to exercise the court's sentencing discretion and that is not being done by your counsel or the prosecutor or the Director of Public Prosecutions. I have though given careful consideration to the concession made by the Crown. I simply do not accept the submission.
322To place you on such an order either with immediate release onto a community corrections order as contended by your counsel or even with an additional 12 months' prison to serve prior to release simply does not fall within my available sentencing discretion. Such an outcome, either of them, would be to completely ignore the gravity of the offending, your role and the impact upon your daughter and Huda. It is my judgment that it would not place anything like adequate weight on the various purposes of sentencing including denunciation, punishment and deterrence, especially general deterrence. That sort of outcome would send the very wrong message to future likeminded offenders.
323I am of the view that I must also proceed in your case by passing individual sentences and fixing a level of cumulation. It is clear to me that I must impose a head sentence and one of a dimension requiring me to fix a non-parole period. That a combination-type sentence is plainly not open to me here.
324I am sorry to have taken so long to get to this point but, as I said at the outset, I could not just come in and tell you the figures. I had to explain to you how I have arrived at the particular sentences, which I will now pronounce.
Sentence - AL HILO
325If you just stand up, please, Mr Al Hilo.
326On Charge 1 on the indictment, the kidnap of Zahra, I convict and sentence you to five years' imprisonment. That will be the base sentence.
327On Charge 2, the kidnap of Huda, I convict and sentence you to 4 ½ years' imprisonment.
328I direct that 15 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.
Total Effective Sentence
329These orders then result in a total effective sentence of six years three months' imprisonment.
Non-Parole Period
330The law requires me to fix a non-parole period. I am not allowed to consider whether or not you will be released on parole. Whether you are paroled or not will be entirely in the hands of the Adult Parole Board. That is the position indeed with each of you so I will not keep repeating that statement.
331In your case, I direct that you serve a period of four years three months before becoming eligible for release on parole.
Section 18
332You have spent 225 days in custody by way of pre-sentence detention and that period is declared pursuant to the provisions of s18 of the Sentencing Act.
333Have a seat then, please.
Sentence - NADHA AZIZ
334I am going to deal with Ms Aziz next. I will come to you, Mr Kadhem, at the end.
335Ms Aziz, if you would also stand up please.
336On Charge 1, the kidnap of Zahra, I convict and sentence you to 3 ½ years' imprisonment. That will be the base sentence.
337On Charge 2, the kidnap of Huda, I convict and sentence you to three years' imprisonment.
338I direct that 12 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.
Total Effective Sentence
339These orders result in a total effective sentence of 4 ½ years' imprisonment.
Non-Parole Period
340I direct that you serve a period of 2 ½ years before becoming eligible for release on parole.
Section 18
341You have spent 198 days in custody by way of pre-sentence detention and that period is declared pursuant to the provisions of s18 of the Sentencing Act.
342Have a seat please and I will deal with Mr Aziz now. Have a seat. Thank you.
Sentence - FUAD AZIZ
343Mr Aziz, if you would stand up, please.
344ACCUSED F. AZIZ: (Through interpreter) Sorry, Your Honour, I want to ask something.
345HIS HONOUR: Go down and speak to your client please.
346I need you back at the Bar table, Mr Hurley. What is going on please? Just hold on. Hold on. Yes. What is the issue?
347MR HURLEY: He instructed me that he wished to say something. I told him to await His Honour's sentence and not to say anything.
348HIS HONOUR: Yes. He is not to say anything. All right. Thank you. I will proceed with the sentence.
349On Charge 1, the kidnap of Zahra, I convict and sentence you to 4 ½ years' imprisonment. That will be the base sentence.
350On Charge 2, the kidnap of Huda, I convict and sentence you to four years' imprisonment.
351I direct that 15 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.
Total Effective Sentence
352These orders result in a total effective sentence in your case of five years and nine months' imprisonment.
Non-Parole Period
353I direct that you serve a period of three years nine months years before becoming eligible for release on parole.
Section 18
354You have spent 198 days in custody by way of pre-sentence detention and that period is declared pursuant to the provisions of s18 of the Sentencing Act.
355Have a seat, please. Have a seat. Thank you.
Sentence – MOCHTEBA KADHEM
356Finally, to you, Mr Kadhem. I will have you stand up briefly now then, please.
357On Charge 1, the kidnap of Zahra, in your case, I convict and sentence you to three years two months' imprisonment. That will be the base sentence.
358On Charge 2, the kidnap of Huda, I convict and sentence you to two years and eight months' imprisonment.
359In your case, I direct that 10 months of the sentence imposed on Charge 2 is to be served cumulatively upon the base sentence.
Total Effective Sentence
360So those orders result in your case in a total effective sentence of four years' imprisonment.
Non-Parole Period
361I direct that you serve a period of two years before becoming eligible for release on parole.
Section 18
362You have spent 198 days in custody by way of pre-sentence detention and that period is likewise declared pursuant to the provisions of s18 of the Sentencing Act.
363If you would have a seat then, please. Thank you.
364I will just see if there is anything else. There are no other ancillary orders, are there, in this case?
365MS GRIERSON: No, Your Honour.
366HIS HONOUR: All right. Nothing else from any of you?
367COUNSEL: No, Your Honour.
368HIS HONOUR: I take it each of you will be no doubt in contact with your respective clients to discuss their rights in relation to, I suppose, verdict and also the sentence that has been pronounced and I include in this the online presence for Mr Al Hilo.
369Will those who are present physically in court be going downstairs today to speak to their clients or not?
370MS SRINGAR: Yes, Your Honour.
371COUNSEL: My instructor will be going.
372HIS HONOUR: All right. Anyway. They have heard all that then.
373As I say, I am sorry I have taken so long to deliver these reasons but it simply was not open for me to come in and simply pronounce numbers and publish my reasons. So they all had to sit through this process, as I explained the various differences and why I have done what I have done.
374I will revise these when I get them back from VGRS. It will take a bit of time to get them back. I will revise them when I get them and I generally do that pretty swiftly. So I am sure you will get them before we break for the end of the year. If I get them this week, I will revise them sometime this week.
375Nothing else then from any of you?
376COUNSEL: No, Your Honour.
377HIS HONOUR: That completes the matter then. So, no doubt, some of the legal practitioners will come downstairs to see you, Mr Kadhem, and you, Ms Aziz and Mr Aziz. So that concludes the matter. So if Mr Al Hilo and Mr Kadhem and Mr and Ms Aziz can be removed now from the court. Thank you.
378I will stand down.
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