Director of Public Prosecutions v Kader (No 6)
[2023] ACTSC 363
•1 December 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Kader (No 6) |
Citation: | [2023] ACTSC 363 |
Hearing Date: | 13 November 2023 |
Decision Date: | 1 December 2023 |
Before: | McCallum CJ |
Decision: | (1) Sentence the offender for perjury to 9 months imprisonment, commencing 1 December 2023 and expiring 31 August 2024. (2) Sentence the offender for perverting the course of justice to 2 years and 3 months imprisonment, commencing 1 March 2024 and expiring 31 May 2026. (3) Set a non-parole period of 12 months from today. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – sentence – perjury – attempt to pervert the course of justice – where the offender gave false evidence during prosecution for sexual offences – dispute as to facts constituting the offence – where the offender lied in first trial to attack complainant’s credibility – coercion of a witness to support the lie in offender’s re-trial – considerations of family violence – consideration of mental health |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 34B, 49, 65 Criminal Code 2002 (ACT) ss 703(1), 713(1) Family Violence Act 2016 (ACT) |
Cases Cited: | GAS v The Queen [2004] HCA 22; 217 CLR 198 The Queen v De Simoni (1981) 147 CLR 383 R v Kader (unreported, District Court of New South Wales (Newcastle), English J, 28 November 2008) |
Parties: | Director of Public Prosecutions Imran Kader ( Accused) |
Representation: | Counsel S Saikal-Skea ( DPP) J Maher ( Offender) |
| Solicitors ACT Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Numbers: | SCC 200 of 2021 SCC 201 of 2021 |
McCALLUM CJ:
1․Imran Kader faced charges for sexual offences alleged to have been committed against a work colleague after a Christmas party. In each of two separate trials in this Court, the jury was unable to reach unanimous verdicts on those charges. After the second trial, the Director of Public Prosecutions declined to proceed further on the indictment, effectively bringing those proceedings to an end.
2․However, during the course of the proceedings, Mr Kader committed two justice administration offences to which he has pleaded guilty. He now stands to be sentenced for those offences.
3․The first is an offence of perjury, contrary to s 703(1) of the Criminal Code2002 (ACT). That offence was committed during the first trial when the offender gave false sworn evidence in response to the evidence of the complainant. The second is an offence of attempting to pervert the course of justice, contrary to s 713(1) of the Code. That offence was committed shortly before the second trial when the offender attempted to persuade his former wife, on whom he cheated when he had what he claims was consensual sexual intercourse with the complainant, to make a false statement to cover for his perjury in the first trial. Each offence carries a maximum penalty of 7 years imprisonment, a fine of $112,000 or both.
4․As the offences were inextricably linked with the course of the sexual assault trial, it will be helpful to explain that context.
Background of the offences
5․The sexual offences were alleged to have been committed on 30 November 2019. At that time, the offender was a vascular surgical registrar employed at The Canberra Hospital. The complainant was a nurse at the hospital. She reported the incident the following year. The offender was charged with two acts of indecency, one count of inflicting actual bodily harm to engage in sexual intercourse and two counts of sexual intercourse without consent, as well as two transferred charges of common assault.
6․The prosecution case was that the complainant and the offender went back to his apartment after the work Christmas party. At that time, the offender’s wife was also a medical registrar. However, she was completing her residency at a hospital in New South Wales and was not living with the offender. The complainant gave evidence that the offender committed several offences of sexual violence against her in the apartment. She said that, when she tried to leave after the alleged assaults, the offender stopped her by throwing her against the wall next to the front door and momentarily holding her there by force.
7․The first trial proceeded before McWilliam AJ (as her Honour then was) in early 2022. In that trial, the offender accepted that he and the complainant had sexual intercourse but said it was consensual, stopping only when the complainant discovered he was married. There was no room for ambiguity on those issues. The complainant’s evidence was that she did not consent to any sexual intercourse, that she made that clear to the offender and that the offences involved a degree of violence.
8․As in any word-on-word sexual assault case, an attack on her credit was accordingly central to the defence case. In that context, the offender gave evidence that it would not have been possible for the complainant to be thrown against the wall as she described because the point where she said that happened was obstructed with furniture and items for the offender’s dog. He said that the dog was living with him at that time but that it was occasionally going to visit his wife.
9․As already noted, that trial ended with a hung jury. The second trial was listed for hearing later in 2022. Shortly before the second hearing date, police obtained a statement from the offender’s former wife contradicting his evidence about the dog. After that statement was served on the offender, he made repeated attempts to contact his former wife to persuade her to bring her statement in line with his false evidence at the first trial.
10․I presided over the second trial in late 2022. The prosecution filed an amended indictment adding counts of aggravated perjury, with an alternative of perjury, and attempting to pervert the course of justice. On the first day of that second trial, the offender pleaded guilty to the count of perjury in satisfaction of the aggravated offence. He pleaded not guilty to the offence of attempting to pervert the course of justice. Again, as already noted, the second jury was hung.
11․A third trial was listed to commence on 31 July 2023. On 14 December 2022, the offender offered to plead guilty to the count of attempting to pervert the course of justice in full discharge of the indictment. The prosecution did not accept the plea at that stage. However, on 6 June 2023, the prosecution filed a further amended indictment containing only the two justice administration offences. The offender pleaded guilty to that indictment on 19 July 2023.
Nature and circumstances of the offences
Perjury
12․The plea of guilty to the charge of perjury was entered on the basis that the offender lied about where the dog was living at the time of the alleged sexual assaults in November/December 2019. He gave evidence that the dog was living with him at that time but was occasionally going to his wife. That was the lie.
13․There was a lengthy debate at the proceedings on sentence as to the scope of the admitted facts. As I will explain, the facts addressed two potential lies. First, the offender gave sworn evidence-in-chief that it would not have been possible for him to throw the complainant against the wall as she described because there was furniture and items relating to the dog in that space at that time. Secondly, in cross-examination, he explained that the dog was living with him at that time and occasionally visiting his wife.
14․Counsel for the offender indicated that the plea of guilty was entered only on the basis that the second statement as to where the dog was living at the relevant time was false. He accepted that the first statement, that it would not have been possible to throw the complainant against the wall because there were dog items in that space, was within the scope of the agreed facts, but noted that the offender had not admitted that was a lie.
15․I am not bound by any understanding between the prosecution and the defence, still less by the offender’s unilateral understanding, as to the scope of the inferences that can be drawn from the agreed facts: GAS v The Queen [2004] HCA 22; 217 CLR 198 at [31]. However, it is axiomatic that, before sentencing the offender on the basis that his evidence that it would not have been possible to throw the complainant against the wall because of the presence of the items in that space was a lie, I would have to be satisfied of that fact beyond reasonable doubt.
16․The agreed facts may be summarised as follows. During her evidence‑in‑chief, the complainant marked on a diagram of the offender’s apartment where she alleged he had thrown her and held her against the wall. The offender then gave evidence in which he tendered photographs showing a large cabinet, a dog bowl and a tub of dog food in that area. He said those items were present at the time of the alleged offences. The offender was then shown a copy of the complainant’s marked diagram. He gave the following evidence:
MS JONES: All right. Can you see a reddish circle to the left of the dining table?--Yes, I can.
All right. Sorry, my eyes don't extend that far. You heard that the complainant drew that as a place where she was pushed against the wall. Did you do that?---No, I didn't.
If it occurred at that location, would it have been possible to have been pushed against the wall?---No, it would not be possible.
And why is that?---Because there was a large cabinet there, and also the large tub of dog food.
All right. Now, you have heard evidence that she tried to open the door and then you grabbed her arm?---Yes
And prevented her from doing that. Did that happen?---No.
(Emphasis added.)
17․Relevant extracts of the offender’s cross-examination set out in the agreed facts are:
MR LEE: Sir, when she left your unit, you tried to prevent her from leaving?---No, that's not the case.
Pushed her against the wall next to the front door?---No, I did not do that.
She was yelling, 'Let me go '?---No, she did not say that.
She grabbed the door handle with her left arm, left hand I should say; had her right hand on the door frame; and you grabbed her right upper arm, didn't you?-- -No, I did not.
She yelled into the corridor?---She did not.
And that's when you let her go?- --That's not the case.
You say it's not the case because there was some furniture there on the wall?---I say it's not the case because I did not do that.
All right. But yesterday did you not refer to the fact that there was furniture on the wall to the left of the door when you were inside the unit?---Yes, I did.
…
MR LEE: I have attempted to make it clear that when you were shown [the complainant’s marked diagram], and the circle of - attempted to make it clear that the complainant's evidence was that circle was the general area in which she was pushed. It wasn't the exact area she says she was pushed, just the general area?---Yes, I understand.
Do you understand that?---I understand that. Yes.
And the question is, looking at - when the door is closed, as we can see in [the photograph the offender tendered]?--- Yes. Yes.
There is an area where somebody could be pushed against the wall?---Yes.
Both right next door to the dog bowl?---Yes.
And even over the dog bowl?---Yes.
So do you accept it is possible that someone could be pushed in against the wall in that area?---In the area, yes.
…
MR LEE: The dog was not there on the night of 30 November 2019?---No.
Where was the dog?---The dog was in Newcastle.
Who with?---My wife.
Tell us about that arrangement. What happens with the dog?---So - - - Sorry, I should just clarify. Tell us about that - the arrangement that used to happen back in 2019?—So for the first six months the dog was with me entirely in Canberra because my wife was living in Taree and when you get sent to sort of regional locations, the hospital provides you with accommodation and the problem is they give you the place to live in but you're not allowed to keep pets so I had to keep the dog in Canberra for the first six months up until I think August. And then after that when my wife moved to Newcastle, she rented a house so then the dog could intermittently go on holidays to Newcastle so I could have a weekend without the dog every now and then.
On occasion the dog would go to Newcastle and be looked after by your wife?---Yes, that's correct.
When that happened, would there be certain things that would have travel with the dog, bedding for example?---No.
Why is that?---Well we've got a surplus of dog accessories.
(Emphasis added.)
18․The offence of attempting to pervert the course of justice was based on an email the offender sent to his former wife, which is set out in full in the annexure to this judgment. In that email, the offender said that the main thing in his evidence that was not true was about the dog, saying, “I gave the evidence knowing that the only person that could possibly contradict me was you”, and later saying, “I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff”. It is an agreed fact that the dog was in fact living full-time with the offender’s wife at the time of the alleged sexual offences, although the offender’s wife did say she had visited the offender with the dog a couple of times.
19․However, counsel for the offender submitted that I should entertain a reasonable doubt as to whether the dog items were in fact present at the time of the alleged sexual offences. He submitted that the offender’s former wife’s evidence was “equivocal” as to whether the dog bowl remained in Canberra (she was certain the large tub was not in Canberra). He further submitted that the complainant’s evidence was “wrong in significant respects” in her description of the offender’s apartment at trial.
20․Counsel further noted that, while the offender initially said that the presence of the dog items meant it would not be possible for the complainant to have been pushed against the wall, he later conceded that there was still some space where that could possibly have occurred, even with the items present. Counsel for the offender submitted that, even if the offender was wrong about the location of the dog items, I should not find that was part of a broader attack on the complainant’s credibility.
21․I am satisfied beyond reasonable doubt that the items described by the offender as being near the wall (a large cabinet and the large tub of dog food) were not present in his apartment at the time of the alleged sexual offences. The overwhelming weight of the evidence of the former wife was to that effect. That finding is further supported by the content of the offender’s email, which provides a telling account of a series of deliberate lies.
22․I am further satisfied beyond reasonable doubt that the offender’s sworn evidence that it would not have been possible for the complainant to have been pushed against the wall because of the presence of other items was a deliberate lie told by the offender for the purpose of undermining the evidence of the complainant as part of a broader attack on her credibility.
23․In his email to his former wife, the offender said:
I explained that when we moved from leppington we went from a 5 bedroom house to a 1 bedroom unit and we left some boxes of stuff in my mum's garage, including a spare dog crate, a pile of leads, additional dog bowls, a bed and all sorts of things because the dog is spoilt so there was no need to take anything from Canberra when you moved to Newcastle and the dog was still visiting Canberra so I left the dog bowls lying there for when she was there.
(Emphasis added.)
24․The offender was acutely aware of the significance of the lie. That is clearly what drove him to prevail upon his former wife to support his lie. The brazenness of his approach to his former wife is telling. At a time when he plainly knew she wanted nothing to do with him, he prevailed upon her to help him defend charges of sexual assaults allegedly committed during their marriage. His conduct towards his former wife was cynical and manipulative. Before resorting to sending her an email, he wrote her a text message in which he described her conduct in providing a statement to police as “disgraceful”.
25․In the email, he acknowledged that parts of his evidence “wasn’t true”. Commenting on an agreed fact as to the dog’s living arrangements based on his former wife’s statement to police, he wrote:
We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted.
(Emphasis added.)
26․The email attached the photographs of the area near the door and of the dog bowls so that his former wife could “see the layout”. The only reasonable inference is that he wanted to ensure her evidence concerning the dog items matched his so that his false evidence was not questioned.
27․For those reasons, I am satisfied beyond reasonable doubt that the offender perjured himself in giving false evidence that it would not have been possible to throw the complainant against the wall because of the presence of items in that space.
Attempting to pervert the course of justice
28․The facts of the offence of attempting to pervert the course of justice are simpler. That charge was based on the offender’s attempt to coerce his former wife to change or add to her statement to police to make it consistent with his false evidence.
29․The day after seeing the prosecution brief for the second trial (containing his former wife’s statement to police) the offender sent her eight text messages and attempted to call her several times on her mobile and WhatsApp. He sent the email that evening, followed by two further texts. Two days later, he sent two further texts. The offending thus continued over a period of several days.
30․The prosecutor submitted that the offence should be regarded as a family violence offence because it involved coercion within the meaning of family violence as defined in the Family Violence Act2016 (ACT). I agree. That informs the matters to be taken into account in sentencing the offender, which must include the matters mentioned in the preamble to the Family Violence Act: see s 34B of the Crimes (Sentencing) Act2005 (ACT).
31․I have already referred to a text message in which the offender described his former wife’s conduct as “disgraceful”. The conduct to which he was referring was her telling the truth to police. The full content of that text is extraordinary. It reveals the depth of the offender’s coercive behaviour. For context and at the risk of repetition, this was a request he made to his former wife to assist him in the defence of allegations of sexual assault against another woman in circumstances where he did not deny cheating on his wife, only that the sexual intercourse he had was non‑consensual:
UG, can I please just meet and speak to you today. I understand that you don't like me and you want to do what is best for [our son] but sending me to prison for a crime I didn't commit is not in anyone's best interest. I know I have upset you but what you are doing is more than brutal. Assisting the police to convict me disgraceful. I know your parents will tell u to stay away from me but since you spoke to the police you have put yourself in the thick of my problem and I need to discuss the issue. We can go somewhere public with CCTV like maccas so you will be safe and I can't yell or pressure you.
(Emphasis added.)
Objective seriousness
32․It is necessary to make an assessment of the objective seriousness of the offences. The starting point is that offences of this kind are serious because they strike at the heart of the administration of justice.
33․The parties addressed the following further matters.
34․First, the prosecutor submitted that the lies were calculated to undermine the complainant’s credibility. On the strength of the findings I have made, I agree. The lies were not inconsequential. They were told for the purpose of securing an acquittal. That is a serious matter.
35․The offender submitted that it would be inconsistent with the principles stated in The Queen v De Simoni (1981) 147 CLR 383 to have regard to that consideration. I do not accept that submission. I acknowledge that it is the offender’s case that he was not guilty of the sexual offences. I also acknowledge that, those proceedings having been discontinued by the Director of Public Prosecutions, the offender is presumed innocent of the sexual offences. However, the essence of the offence lies in perverting the process by which those offences were to be tried. Particularly in a word-on-word case where the lies were calculated to damage the credit of one witness over another, that was a serious matter.
36․The prosecutor submitted that the photographs included in the tender bundle and attached to the offender’s email were there for the purpose of bolstering his account, demonstrating premeditation and planning. The offender denies that the photographs were provided as part of a more elaborate scheme. The offender also submits that the lie regarding the dog’s whereabouts was “spontaneous” rather than part of a greater plan to advance a false defence.
37․I do not accept that the lies were spontaneous. It is clear, in my assessment, that they were premeditated. So much is demonstrated by the course of the evidence-in-chief to which I have referred. It is plain that the offender’s counsel had been given instructions and that she knew the answers that were coming in response to her questions about why it would not have been possible to throw the complainant against the wall.
38․The offender submitted that, as to the offence of attempting to pervert the course of justice, he was simply motivated to protect himself and did not put any pressure on his former wife to lie. The prosecutor submitted that the Court should reject the submission that the email was to keep his wife out of the proceedings and noted that, had his attempt been successful, it may have led to forcing her to perjure herself as well.
39․The offender submitted, as I have already noted, that his motivation was fear of a wrongful conviction, noting that other cases in which a witness has been pressured to give false evidence have been cases where an offender has ultimately pleaded guilty or been found guilty of the underlying offences. I do not accept that that fact renders the present case less serious, for the reason I have already given. The essence of the offence lies in the perversion of the process (the course of justice), not the outcome.
40․The prosecution relied on the fact that the offender is both educated, being a surgeon, and sophisticated in the justice system. The latter is the result of the fact that he has previously faced allegations of sexual assault. In those earlier matters he was found not guilty but pleaded guilty to three drug offences: R v Kader (unreported, District Court of New South Wales (Newcastle), English J, 28 November 2008). I accept, as submitted by the prosecutor, that his moral culpability is worsened on that account, as he has some familiarity with the process of the justice system.
41․I also accept, as submitted by the prosecutor, that he persisted in his offending, first lying in the trial and then, four months later, persistently attempting to contact his wife in an attempt to maintain the lie. The offences were only detected as a result of the decision of his former wife to report the matter to police.
42․It is also necessary to have regard to the impact of the offences on the victims. There was a dispute at the proceedings on sentence as to whether there is one victim or two of these offences. The offender did not object to his former wife reading her victim impact statement as the victim of the offence of attempting to pervert the course of justice. However, he submitted that the complainant in the sexual assault proceedings was not a victim within the meaning of the legislation. I did not accept that submission. In my assessment, the complainant in the sexual assault proceedings was plainly a victim of the offences because they were calculated to undermine her credibility. I will return to the detail of those statements.
43․In my assessment, each of the offences is a relatively serious instance of its kind. The factors the prosecution has relied upon demonstrate the persistent nature of the offending and its dramatic impact on two women.
Subjective circumstances
44․I turn to consider the circumstances of the offender.
45․He is now 39 years old. He is of Indian and South African descent but was raised in New South Wales by strict and academic parents. In the report prepared for the purpose of the proceedings on sentence, he told the author that his childhood was marked by gendered norms. The report indicates that his father had demonstrated misogynist ideologies, leading to physical abuse of his mother. The offender is no longer in contact with his father but has lived with his mother since his marriage ended in 2021 following the sexual assault allegations in these proceedings. He now has only limited contact with his former wife and his only son, who is now around three years old.
46․As already noted, the offender was formerly a medical practitioner. Prior to these allegations, he had completed three out of the five years of his vascular surgical training, until his medical licence was suspended pending the determination of these proceedings. He has expressed the hope that, after the resolution of these proceedings, his medical licence might be reinstated. Since 2022, he has remained unemployed, partly due to his poor mental health. He is, accordingly, dependent on government payments and often requires financial assistance from his mother and brother, particularly for his legal fees.
47․In relation to the question of the appropriate sentence, the offender submitted that I should give particular weight to his poor mental health, the significant amount of stress he was under at the time of offending and the greater hardship he would face in custody due to his underlying mental health issues.
48․He has been diagnosed with depression and anxiety and is medicated for his symptoms. Shortly before the second trial and after receiving information indicating that his wife had gone to police about the email he sent her, he attempted to commit suicide. He has a history of alcohol and medication abuse but, according to the evidence before me, has undertaken no formal steps to address these addictions.
49․There was an expert report tendered on his behalf indicating that he sees a psychologist once every few months. The psychologist’s report states that he was feeling desperate, which led to his persistent contact with his wife (the subject of count 2). The psychologist’s report also confirmed his substance abuse issues and struggles with mental health, particularly in relation to his limited contact with his son and the allegations in these proceedings.
50․The offender tendered character references from his older brother, his sister‑in‑law, three friends, a housemate and three former surgeon colleagues. The prosecutor submitted that these references should be given limited, if any, weight. She noted that one of the references was from a friend (describing Mr Kader “an individual of outstanding character”) who was the same friend who participated in the offender’s previous trial for sexual offences, giving corroborating evidence for the offender. As already noted, the offender was acquitted of those offences but pleaded guilty to related drug offences, one of which involved supplying a young woman with a prescribed drug: R v Kader. In relation to the remaining character references, the prosecutor pointed to descriptions of the offender as “honest” and “trustworthy”. She submitted that such assessments must be regarded as unreliable in light of the facts of the offences before the Court. I agree.
51․The prosecutor submitted that the offender has not demonstrated remorse in relation to the offences. A pre-sentence report tendered at the proceedings on sentence stated that the offender accepts responsibility for the offences but attributed his behaviour to poor mental health, the level of stress that he was undergoing at the time and increased reliance on drugs and prescribed medications. He nonetheless accepted that his behaviour had had a negative impact on his former wife.
Victim impact statements
52․I return to consider the two victim impact statements. Each was read at the proceedings on sentence by the relevant victim.
53․As already noted, I ruled that the complainant in the sexual offence proceedings was a victim within the broad definition of that term in s 49 of the Crimes (Sentencing) Act, as it is clear that she suffered harm in the course of the offending. She was cross-examined on what is now accepted to have been a false premise and as part of a significant attack mounted on her credibility. She was plainly a victim of that conduct.
54․In her victim impact statement, the victim particularly focused on the cross-examination about the dog. She said:
No line of questioning left me more confused than when I was questioned about his dog and the dog bowls that he claimed to have been against the wall. I remember leaving court that day, after having been interrogated for what felt like 3 hours over this one issue, just ruminating on this detail. I thought “how could what they’re saying possibly be true, I have no memory of a dog, or anything that could even be linked to a dog ever having lived there. Not to mention that I am allergic to dogs, so my body would have very visibly reacted if there had even been one living there within the weeks before I was there.”
I couldn’t understand at the time why this was happening, over details I deemed so insignificant. Because even if I was making it up, what could my recollection on the existence of a dog bowl have anything to do with why we were really in court?
55․The complainant’s victim impact statement goes on to recite the considerable impact of these matters on her. She concluded her statement by saying, “[a]s a result of his perjury, my trauma was compounded. I had to fight to be believed over a dog bowl. All whilst he was the one lying the whole time.”
56․The complainant also acknowledged the impact of these offences on the offender’s former wife. She stated:
Someone who wants to protect his ex-wife and keep her out of it, does not purposely orchestrate a lie that only she can refute, this deliberately forces her into it. And yet, he still insinuates that it will be her fault if he ends up in jail, not the consequences of his own actions.
57․Those sentiments were echoed in the victim impact statement of the offender’s former wife. She described a measure of relief after their relationship ended because she said, “I believed that I was out of his control; I was not exposed to his mood changes; I was no longer pretending to everyone around me.”
58․In those circumstances, she described the shock and distress she suffered when she realised that the offender was attempting to contact her. She wrote:
Then less than a week before the trial I was being called by no caller IDs. When I picked up the phone it was him, and he told me that whatever I had said, would put him in jail. I cannot describe the shock and dismay I had in that moment. I was so distraught that my son would have the burden of a father in jail, but now he was telling me that not only was he likely to go to jail, but it would be MY FAULT!
59․The offender’s former wife also described the aspects of her trauma, which has been diagnosed as amounting to post-traumatic stress disorder, owing to the connection she draws between her experience with her infant child and the allegations against the offender, of which she learned when the child was five days old.
Pleas
60․The offender pleaded guilty to count 1 on 28 November 2022 at the start of the second trial. The prosecution accepts that this was an early plea, as the charge had only been laid earlier that month. I accept that the prosecution case was strong. However, the plea nonetheless had utilitarian benefit as the offender’s former wife would probably have been called to give evidence had he defended the charges. I consider it appropriate to allow a discount of 25% to reflect the utilitarian value of that plea.
61․As to count 2, the offender initially pleaded not guilty and was tried for that offence. However, as submitted on his behalf, the prosecution process in respect of that offence was expedited and there was no opportunity for the offender to participate in a case conference. That was so that the offence could be dealt with at the trial, which was already listed for hearing. After the second trial, the offender offered to plead guilty to the attempt to pervert the course of justice offence. The plea was only entered when the prosecution agreed to discontinue the remaining sexual offence charges, although counsel for the offender informed me (and I accept what he says) that those decisions were made independently. The offender’s counsel submitted that the offender should be afforded a moderate discount in respect of that plea in the order of 10-15%. I have regard to the fact that the evidence on that charge was very strong – the jury’s inability to reach a verdict on that count was confounding. I consider it appropriate to allow a discount of 10% for the plea on that count.
The purposes of sentencing
62․The purposes of sentencing are to ensure that the offender is adequately punished for the offence in a way that is just and appropriate (punishment); to prevent crime by deterring the offender and other people from committing the same or similar offences (deterrence); to protect the community from the offender (protection); to promote the rehabilitation of the offender (rehabilitation); to make the offender accountable for his or her actions (accountability); to denounce the conduct of the offender; and to recognise the harm done to the victim of the crime and the community (denunciation): s 7 of the Crimes (Sentencing) Act.
63․Section 10 of the Crimes (Sentencing) Act provides that the Court may sentence the offender to imprisonment only if satisfied, “having considered possible alternatives, that no other penalty is appropriate”. This is clearly such a case and that was not disputed on the offender’s behalf. Where an adult offender is to be sentenced to imprisonment, the Court has a discretion to order that the sentence be served by intensive correction in the community or to suspend all or part of the sentence.
64․The prosecutor submitted that the offender’s sentence in the present case must be served as full-time imprisonment. The offender submitted that his offence could properly be suspended or served by way of an intensive correction order.
65․In determining whether to make an intensive correction order, the Court must consider the offender’s suitability for such an order as addressed in the pre-sentence report. The offender in the present case has been assessed suitable for an intensive correction order. However, I do not think that is an appropriate order in the present case. The offender’s conduct was dishonest and manipulative. In my assessment, he will not be deterred from such conduct unless he is held accountable for it. I acknowledge that an intensive correction order is an alternative form of serving a prison sentence, but the existence of that alternative does not remove full-time imprisonment from the range of possible penalties in an appropriate case.
66․Nor am I persuaded that a suspended sentence would be appropriate in the present case.
67․Each of the purposes of sentencing is important here. Punishment, deterrence, accountability and denunciation are obvious purposes in the circumstances I have recited. As to protection of the community, in my assessment the offender’s persistence in his own self-interest in his attempts to contact his former wife – and his apparent complete inability to appreciate the impact of his conduct on her – indicates that she is at ongoing risk, particularly in light of the ongoing Family Court proceedings between them. In my assessment, there is a risk that a lenient sentence will embolden the offender. As to rehabilitation, in my assessment he needs time to reflect on the offences he has committed and the impact of his conduct on the women with whom he deals.
68․In relation to the offence of perjury, I consider that an appropriate starting point for the sentence is a term of imprisonment for 1 year, which I will reduce to 9 months to reflect the discount of 25% for the plea. In relation to the offence of attempting to pervert the course of justice, the starting point will be a term of imprisonment for 2 years and 6 months, reduced to 2 years and 3 months to reflect the discount of 10% for the plea. There will be three months accumulation between the two sentences, giving an aggregate sentence of two years and six months.
69․In accordance with s 65 of the Crimes (Sentencing) Act, I will set a non-parole period of one year. This reflects a ratio of less than 50% of the aggregate sentence.
70․My reason for setting such a short non-parole period is twofold. First, while the offences reflect a troubling degree of coercive behaviour, I accept that they were committed at a time when the offender was under extreme emotional stress, as supported by the expert evidence relied upon by him. The fact that this was a direct result of his own conduct does not derogate from the devastating impact his spectacular fall from grace evidently had on his mental health. That is not to excuse his coercive behaviour but only to recognise that a period of imprisonment will give him an opportunity to reflect and hopefully to address this behaviour. He will have a powerful incentive to do so because he is desperate to recover a relationship with his infant son. It should then be for the Sentence Administration Board to determine whether he has made sufficient progress to warrant being released on parole. If he fails to address the behaviour demonstrated in his offending, he will be at risk of spending a longer portion of his sentence in prison.
71․The second reason for allowing a shorter non-parole period than might ordinarily be expected is related to the first. I have no doubt that, in his present mental state, the offender’s experience of prison will be extremely hard for him. While that is a source of concern, any shorter non-parole period than one year would fail to reflect the seriousness of the offences.
Sentence
72․Imran Kader, please stand.
(1)For the offence of perjury, I convict you and sentence you to a term of imprisonment for nine months, commencing 1 December 2023 and expiring 31 August 2024.
(2)For the offence of attempting to pervert the course of justice, I convict you and sentence you to a term of imprisonment for two years and three months, commencing 1 March 2024 and expiring 31 May 2026.
(3)I set a non-parole period of 12 months, commencing 1 December 2023 and expiring 30 November 2024. The first day on which you will be eligible for parole is 1 December 2024.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum Associate: Date: 13 February 2024 |
ANNEXURE TO JUDGMENT OF 1 DECEMBER 2023 –
DPP v Kader (No 6) [2023] ACTSC 363
Email from Imran Kader dated 30 June 2022 at 7:36pm:
Dear UG,
There is a very specific reason that Detective Bakes asked the questions that he did. He was sent on a fishing expedition to see if he could get you to contradict any of my evidence. There were one or two things that I stated in my evidence that wasn't true. The main thing was regarding the dog. I gave the evidence knowing that the only person that could possibly contradict me was you. When the case ended I suspected the prosecution may ask Detective Bakes to contact you to try and find anything they could use against me. That was why I sent you the text not long afterwards asking you to please not speak to the police, even if they threaten to subpoena you because if they don't know what you were going to say, they wouldn’t ask you to take the stand.
The issue relating to the dog is relatively simple. The complainant alleged that as she was trying to leave the apartment, I grabbed her, pulled her back and threw her into a wall. She then claimed that she got to the door, opened it, yelled out Jet me go then I chased her to an Uber. I denied doing this. I said that her version of events was not possible because there was a cabinet and a large tub of dog food in the area that she claimed I threw her into the wall. There was also some dog bowls against the wall. I provided a photo out of one of the videos I had taken of the dog. The attached images "near door" and "dog bowls" are what was submitted as evidence. You can see the layout.
This is an extract of my cross examination:
That can be returned. Sir, you have been shown a number of photographs I say photographs, but really they are stills taken from various videos that you have taken in your units in Deakin -
- -?---Yes.
- - - in 2019. Some include a dog?---Yes.
The dog was not there on the night of 30 November 2019?---No.
Where was the dog?--The dog was in Newcastle.
Who with?---My wife.
Tell us about that arrangement. What happens with the dog?---So - - -
Sorry, I should just clarify. Tell us about that the arrangement that used to happen back in 2019?---So for the first six months the dog was with me entirely in Canberra because my wife was living in Taree and when you get sent to sort of regional locations, the hospital provides you with accommodation and the problem is they give you the place to live in but you're not allowed to keep pets so I had to keep the dog in Canberra for the first six months up until I think August. And then after that when my wife moved to Newcastle, she rented a house so then the dog could intermittently go on holidays to Newcastle so I could have a weekend without the dog every now and then.
On occasion the dog would go to Newcastle and be looked after by your wife?---Yes, that's
correct.
When that happened, would there be certain things that would have travel with the dog, bedding for example?---No, just the dog.
Why is that?---Well we've got a surplus of dog accessories.
Now you were shown all of these photographs in Exhibit Q and asked some questions about whether or not the furniture had changed between then, when the photographs were taken - - -?--
-Sure.
and the night of the Christmas party?---Yes.
Right, and it is the case that the furniture was all the same?---Yes, with the exception of that dog crate that I've pointed out.
Dog crate, all tight. Now that - those photos included a photo from inside your bedroom?---Yes.
I told the court that I had packed up the dog crate and put it in the storage area of my unit because the dog was sleeping in the bed and it wasn't being used, not that it went to Newcastle. I also told the court that the dog bowls were still there because the dog would come back. I told my lawyers that the dog has anxiety and each time we move the dog freaks out. When we moved to Perth it wound up in the blinds in the kitchen before settling down over the course of a month. I told them the same thing happened in leppington. I told them it happened again in Canberra and will provide them with the angry note that was put under my door and the vet record for anxiety treatment before it settled down. I have never told them the dog went to doggie day care in any places. I told them that the dog went to Newcastle on "holidays" for short periods of time and then progressively longer in order to ease the transition for anxiety but ultimately we knew we were going to be in Newcastle so the idea was to spend more time there. I have also provided them with some pictures of the dog in Canberra in September and December to demonstrate that the dog was still coming to Canberra in those months.
I explained that when we moved from leppington we went from a 5 bedroom house to a 1 bedroom unit and we left some boxes of stuff in my mum's garage, including a spare dog crate, a pile of leads, additional dog bowls, a bed and all sorts of things because the dog is spoilt so there was no need to take anything from Canberra when you moved to Newcastle and the dog was still visiting Canberra so I left the dog bowls lying there for when she was there.
Your statement to the police says:
Q47. Yeah, when you were living apart, was there any conversation about the dog?
A Ah, yeah, the dog was in Canberra for, um, most of that year, I think, and then moved to Newcastle with me, um, once I was not living in Taree.
Q48. Okay. And you mentioned-I think it was mid-year that you moved from Taree to Newcastle of 2019, is that correct?
A Mm, yep.
It is very vague and my lawyers want to have a chat to you to basically get you to say yes the plan was for the dog to live in Newcastle but there was a transition due to anxiety. It would not look suspicious because your answer is non-committal and vague and Detective Bakes didn't get any specifics. The problem we have is that we don't want you at the trail. We want to agree with the prosecution to a set of agreed facts so you don't have to give evidence. The statement of facts the prosecution has currently offered states:
They shared a dog named Schnitzel that initially lived in Canberra with Dr Kader. When UG moved from Taree to Newcastle in mid-2019, the dog Schnitzel moved to Newcastle and lived with UG.
We can't agree to that going to the jury because the prosecution will simply argue that the dog had moved, the crate was gone and I have provided an old photo with the dog bowls and dog food to deliberately fill the wall with stuff. It will be obvious that I have lied under oath, my credibility will be gone and I'll be convicted. If you turn this email, the fact that I contacted you or the text messages over to the prosecution I will clearly be convicted. If you give a version of events to my lawyers with a transition and no need to take stuff to Canberra then the situation will be the same as last time. My lawyers would try to make submissions to the prosecution to alter the statement of facts and then not call you as a witness. If the prosecution don't agree then you will be called to give evidence.
The crockery questions relate to the complainant alleging I tried to push her bead onto a plate of cocaine and the plate was a blue oriental plate with scalloped edges. I denied ever owning a plate like this or having any cocaine. She also describes being assaulted with an electric toothbrush on a 4 cube book shelf. I denied owning a 4 cube book shelf and provided the videos to demonstrate the furniture. I stated that I own an electric toothbrush but never used it on her or discussed using it on her. I admitted digital penetration and cunnilingus but stated it was consensual. I denied any form of penile vaginal intercourse and she never made that accusation. I stated that I had that 3 frame photo of schnitzel's birthday in the bedroom but don't expect you to remember anything about where it was.
It goes without saying that I wanted to speak to you in person to explain all of this without a paper trail but you clearly knew I was going to ask you something dodgy. I will ask my lawyers to contact you. It is your right to refuse to speak to them if you wish or tell them whatever you please. If you want to contact me then I will speak to you but I will not contact you again about any of this. I am truely [sic] sorry for all of this. This is certainly not how I intended our relationship to work out and I tried my best to keep you out of this mess.
Regards,
Imran Kader
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