Director of Public Prosecutions v Hussain

[2022] VCC 1771

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 21-01217

DIRECTOR OF PUBLIC PROSECUTIONS

v

ARIF HUSSAIN

---

JUDGE:	HIS HONOUR JUDGE ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October 2022
DATE OF SENTENCE:	19 October 2022
CASE MAY BE CITED AS:	DPP v Hussain
MEDIUM NEUTRAL CITATION:	[2022] VCC 1771

REASONS FOR SENTENCE

---

Subject: CRIMINAL LAW

Catchwords: Common Assault contrary to Common Law – Domestic violence – General deterrence – No evidence of remorse – Adjourned undertaking inappropriate – Without conviction disposition inappropriate – Fine

Legislation Cited: Sentencing Act1991 (Vic)

Cases Cited: Cheung v The Queen (2001) 209 CLR 1; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676

Sentence: Fine with conviction – $1,500

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon	Office of Public Prosecutions
For the Accused	Mr L. Gwynn & Ms S. Locke	Slades & Parsons

HIS HONOUR:

1Arif Hussain, on 21 September 2022 a jury of 12 found you guilty of one charge of assaulting your then wife, Sheada Haidari, by slapping her face and one charge of assaulting her by kicking her to the bottom or hip area.

2You committed these offences on a day between 1 June 2019 and 30 June 2019 in your marital home in Noble Park in front of Ms Haidari's sister and her mother.

3The jury acquitted you of six other charges including three of rape. 

4It is now my role to sentence you for this offending. The task of a sentencing judge following a jury verdict is clear.  The judge is obliged to make up his or her own mind about the factual basis upon which the convicted person is to be sentenced.  The facts found must not be inconsistent with the jury's verdict and any adverse findings must be made to the criminal standard.[1]

[1] Cheung v The Queen (2001) 209 CLR 1 at 19 [38]; DPP v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at 720 [186].

Brief background

5You married Sheada Haidari in an arranged marriage in 2016 in Pakistan.  At the time of your marriage, Ms Haidari, her five sisters and her parents were residing in Australia, having come here as refugees from Afghanistan.

6You were living in Pakistan, but you had family living in Australia.

7Ms Haidari and her mother, Mrs Gulbagum Haidari, travelled to Pakistan for the marriage in August 2016 and stayed for 45 days.

8In September 2016 they returned to Australia.  Sheada Haidari travelled back to Pakistan in October 2017 and lived with you and your family for four months before returning to Australia in February 2018. 

9She applied for a partner visa on your behalf and you entered Australia in September 2018.  You and Ms Haidari initially lived in Clayton South with your cousin.  In January 2019 the two of you moved to an address in Noble Park.

10Your counsel submits, and I accept, that the marriage was an unhappy one marked by frequent arguments and disputes.

Circumstances of the offending

11On an occasion in June 2019, Sheada's mother, Mrs Gulbagum Haidari, her sister Sayita and Sayita's young child visited Sheada at your Noble Park house for Eid, the holiday at the end of Ramadan.  As is fitting for this time in the Muslim calendar it was to be a happy family occasion and Sheada had prepared some food to share.  You were not present at the home when the guests arrived.

12You rang Sheada's mobile phone on your way back to the house from work and she put your call on loudspeaker. You were unaware that Sheada's family could hear you.  During the call you yelled at Sheada, verbally abused her and threatened to rape both her mother and her father.  These threats were overheard by both Mrs Gulbagum Haidari and by Sayita.

13When you arrived at the house a short time afterwards, Sheada was serving tea to her mother and sister who were in the sitting room.  You began to compare Sheada unfavourably to your brother's wife and she began to cry.

14She was sitting on a mattress with her head leaning against a brick wall.  You stood up, walked over to her and in the presence of her mother and sister, slapped her face twice, causing her head to slam into the wall (Charge 6 – common assault contrary to common law).

15You pulled her hair and kicked her two to three times to her upper thigh or kidney or hip region (Charge 7 – common assault contrary to common law).

16Sayita tried to intervene and calm the situation.  Her infant child was crying, and she left the flat shortly after these assaults.  Mrs Haidari also left and explained in evidence to the jury that her health was such that it was not good for her to be exposed to stressful situations.

17You were arrested by appointment at the Dandenong police station on 2 March 2020 and participated in a recorded interview with the assistance of a Hazaragi interpreter.

18Although you agreed that you had conducted an angry phone call with Sheada, you denied the specific assault allegations.  You maintained this denial through the course of the trial and you have shown no remorse for this offending.

Objective gravity of offending

19I consider the aggravating features of your offending to be that it occurred in the home in which Sheada was entitled to feel safe, it occurred within a relationship that she was entitled to believe was protective and not threatening, and it occurred in front of her mother and her sister.

20Your physical attack on your wife was entirely unprovoked. What set you off appears to have been her reasonable request that you not compare her unfavourably to your sister-in-law in front of her family.

21Domestic violence is a scourge on society and this court must play a part in reducing that scourge by appropriately punishing perpetrators.  General deterrence is therefore an important sentencing consideration, as is denunciation.  It is entirely unacceptable for men to express their frustration with their domestic situations through violence directed at women. 

22I also consider there is a role for specific deterrence in sentencing in this case.

23While it is concerning that Ms Haidari's head hit the wall when you slapped her, I accept that any injuries you inflicted were relatively minor.  There was no need for Ms Haidari to receive any medical treatment and her mother and sister left the home shortly after the incident, which is consistent with her not being injured.

24Your counsel, Mr Gwynn, submitted on your behalf that this case is at the very lowest end of the range of conduct involved in cases of common law assault.  For the reasons explained above, I do not accept that characterisation.  While the case is clearly towards the lower end of the range, the aggravating features identified above mean that it is not the least serious example of this type of offending.

25Mr Gwynn referred the court to your lack of prior offending and your clean record since these offences were committed in 2019.  He submitted that you were otherwise of good character and that you are in steady employment, and I give you credit for these matters.

26Mr Gwynn submitted that you should be sentenced to an adjourned undertaking without conviction pursuant to s 75 of the Sentencing Act1991 (Vic). Section 75 is located in division 1 of part 3BA of that Act. Orders made under that division are intended to achieve a number of purposes as set out in s 70 of the Act, these purposes including, 'to take account of the trivial, technical or minor nature of the offence committed', and, 'to allow for circumstances in which it is inappropriate to inflict any punishment other than nominal punishment'.[2]

[2] s 70(1)(b) & (d).

27Ms Guesdon on behalf of the prosecution submitted that the nature of your offending and your refusal to accept responsibility for it, make a fine the most appropriate penalty.

28I note the court has power to fine you under s 49 of the Sentencing Act and can impose an aggregate fine under s 51.  Section 52 provides that your financial circumstances must be taken into account.

29The maximum fine which the court can impose on each charge is $96,714, being 600 penalty units at the applicable rate of $161.19 at the time.

30I consider that your offending is too serious for an order under division 1 of part 3BA.  Physical violence in a domestic sitting is neither trivial nor technical.

31I accept the prosecution's submission that a fine is the appropriate penalty to reflect both the seriousness of the offending and your personal circumstances.

32Mr Gwynn argued that as this is your first offence, you should not be convicted. I have had regard to s 8 of the Sentencing Act and have decided that the nature of the offence is such that a conviction should be recorded.  There is little evidence before the court to suggest that a conviction will have any particular impact on your economic or social wellbeing, or your prospects of employment.

33In the circumstances, I impose a fine of $1,500 with conviction.

‑ ‑ ‑