Director of Public Prosecutions v Qayyum

[2024] VCC 626

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

GENERAL LIST

Case No. CR-22-00995

Indictment No.  N10519602.2

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAWAD QAYYUM

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	26 April 2024
DATE OF SENTENCE:	10 May 2024
CASE MAY BE CITED AS:	DPP v Qayyum
MEDIUM NEUTRAL CITATION:	[2024] VCC 626

REASONS FOR SENTENCE
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Subject:

Catchwords:              One charge of attempting to pervert the course of justice – Offender had been charged with assaults and contravening a Family Violence Intervention Order which named his wife and child as protected persons – Whilst in custody pending a hearing of the charges in the Magistrates Court, the offender on multiple occasions phoned his brother and instructed him to contact a friend of his wife to try to pressure the friend into making a statement in his favour which omitted any references to arguments or the fact that he had beat his wife – Late plea of guilty entered only after some days of pre-trial argument and commencement of a trial where it was necessary for the jury to be discharged – No evidence of remorse – prior criminal history of assaults against his wife – subsequent offending of making and using a false document to make it appear that he had no criminal history – good work history during a period of 18 years residence in Australia – risk of deportation.

Legislation Cited:      Migration Act (Cth) 1958, Sentencing Act (Vic) 1991.

Cases Cited:Baker (a Pseudonym) v The Queen [2021] VSCA 158, Shiryar v The Queen [2022] VSCA 96, Loftus v The Queen [2019] VSCA 24, Guden v The Queen [2010] 28 VR 288

Sentence:                  Total effective sentence of two years with a non-parole period of one year.
s6AAA: Two and a half years with a non-parole period of 20 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M Turner	Solicitor for the Office of Public Prosecutions
For the Offender	Mr J Shaw	Emma Turnbull Lawyers and Associates

HER HONOUR:

1Jawad Qayyum, you have pleaded guilty to one charge of attempting to pervert the course of justice, which carries a maximum penalty of 25 years’ imprisonment.

2The circumstances of your offending are contained in the Further Amended Prosecution Opening for Plea.[1]

[1]Exhibit “A”

3You were born in Pakistan and came to Australia on a student visa in 2006.  You returned to Pakistan in 2008, where you married your wife (who is your first cousin) on 26 December 2008.  She then remained in Pakistan for almost two years before she joined you in Australia on 15 November 2010.  Your wife was unable to speak or read or write English and was totally dependent upon you financially. On 29 March 2012 she gave birth to your daughter.

4The offending for which I must sentence you has it genesis in a number of criminal charges which had been brough against you for assaulting your wife and contravening a Family Violence Intervention Order. A police summary of those charges was tendered as Exhibit “D”. This reveals that, on 28 August 2020, police were called to a family violence incident, as a consequence of which your wife was admitted to the Royal Melbourne Hospital. There, she revealed to a doctor that, since shortly after she had arrived in Australia, you had subjected her to weekly physical beatings, mental abuse, mental torment, threats of violence, and repeated shaming of her by calling her names and contacting mutual relatives to complain about her behaviour.

5You forbade her to do anything without your permission, including leaving home and learning the English language, and refused to permit her to have a bank account, driver’s licence, or to attend doctors without you.  You coerced her into going to several doctors, and instructed her to tell the doctors that she was hearing voices and had mental health issues. This was apparently designed by you to create a history that she suffered mental illness and schizophrenia in order to assist you to obtain a visa for you to remain in Australia, as your application for such a visa had been rejected.  Over a period of some 10 years you beat her three or four times each week, and had used a cricket ball as a weapon by throwing it hard at her body and vagina, as well as using knives to scare her.  At times, this abuse happened in front of your child.

6Your violence escalated and, on the previously-mentioned date of 28 August 2020, you assaulted your daughter, who was also taken by ambulance to be kept under observation.  On that date you were charged with assaulting your wife and were bailed to appear at Sunshine Magistrates’ Court on 3 September 2020 with conditions to abide by a Family Violence Safety Notice which named your wife and child as the protected persons.  On 3 September 2020, a Family Violence Intervention Order was made at Sunshine Magistrates’ Court, and you were bailed to appear at that court on 1 April 2021 for the hearing of the charges upon which your wife was a victim. Child Protection Authorities became involved and you were permitted to see your daughter only under supervision.

7Subsequent to the making of the Family Violence Intervention Order and you being granted bail, you contravened the Family Violence Intervention Order on multiple occasions between 9 September 2020 and 20 November 2020.  The contraventions comprised you clandestinely making comments to your daughter during supervised contact with her by whispering to her that she should tell relevant authorities that she wanted to live with you, asking questions about her current living arrangements, and asking her questions about what she had told Child Protection authorities.

8On 20 November 2020 you were arrested and charged with further offences relating to contravention of the Family Violence Intervention Order, and your bail was withdrawn.

9Whilst you were held in custody on remand, awaiting a hearing in the Magistrates’ Court of the offences with which you had been charged, you made telephone calls to your brother, Bilal, who lived in the United States of America. You requested that he make contact with Ms Fozia Murtaza, who knew both your wife and self, in order to persuade her to make a statement in your favour in relation to the forthcoming legal proceedings.[2] He was instructed, amongst other things, to ensure that the statement omitted any references to arguments or the fact that you had beat your wife.  In fact, between 11 December 2020 and 2 March 2021 you made 35 calls from prison to your brother Bilal (although only those pertaining to the period from 4 to 22 February 2021 are relied upon in support of the charge to which you have pleaded guilty). From 30 December 2020 Bilal began to make phone calls and send messages to Ms Murtaza, who had never had any contact whatsoever with your brother prior to that date.

[2]These included an application for bail listed in February 2021, which did not proceed.

10In the period between 4 and 22 February 2021, the content of the messages by your brother to the Ms Murtaza effectively implemented the detailed strategy which you had told him to adopt with her. This included not mentioning the making of a statement straight away, but building up to it slowly, by effectively softening her up.  The technique to be used included talking about your daughter and how worried you were about her, and that you were very upset and cried a lot in prison; that your daughter’s future was “getting ruined”, and because of the legal situation she may end up leading the life of an orphan; that Ms Murtaza, herself, had daughters and should understand how difficult this would be; that your brother should first try to get Ms Murtaza’s sympathy and tell her to show mercy for you; that Ms Murtaza should write that you were very concerned for your wife’s health and that you were a good man who loved your wife very much and cared about her; that you were worried about how long you could avoid revealing your legal situation to your mother in Pakistan; and that the statement should not mention anything about disputes between you and your wife or that you beat your wife.

11Pursuant to these instructions, your brother, Bilal, made insistent and persistent contact with Ms Murtaza, which sought to put emotional pressure upon her to make a statement which was untrue for use in the legal proceedings in the Magistrates’ Court.  Ultimately, she did not make a statement and, hence, the charge of attempting to pervert the course of justice, rather than actually perverting the course of justice.

12You had initially been charged with a second charge of attempting to pervert the course of justice by having another brother, Salman, who lived in Pakistan, try to contact your wife in order to withdraw her statement of complaint against you. In fact, calls made to Ms Murtaza by Bilal from 30 December 2020, up until 4 February 2021, pressed Ms Murtaza for knowledge as to the where abouts of your wife and to provide contact details for her.  This charge of attempting to pervert the course of justice was not pursued by the prosecution following the discharge of the jury in your trial on both charges, on 19 April 2024.    On 19 April, following the discharge of the jury, the matter had been adjourned for a new trial to commence on Monday, 22 April 2024.  On that date, the prosecutor, Mr Turner, told the court that the prosecution had formed the view that it was unable to prove beyond reasonable doubt that you, as distinct from your brother Salman, had initiated the attempts made by Bilal to contact your wife. The trial resolved into a plea on only one charge of attempting to pervert the course of justice relating to the attempt to have Ms Murtaza make a statement that was untrue by omitting any reference to abusive behaviour of your wife by you.

13You are presently aged 41 years, having been born in August 1982.  Prior to the commission of the offence for which I must sentence you, you had once previously been before a court. At Sunshine Magistrates’ Court, on 3 February 2017, you pleaded guilty to recklessly causing injury and unlawful assault and, without conviction, you were sentenced to an adjourned undertaking to be of good behaviour for 12 months and ordered to pay $1,000 into the court fund, as well as to attend a men’s behaviour-change program.  The police summary relating to these charges was tendered as Exhibit “F”.  They relate to offending which occurred in April 2016.  The charge of unlawful assault involved you slapping your wife to the face whilst she was in the car, and whilst your then four-year-old daughter was also present.  The charge of recklessly causing injury related to you having grabbed your wife by the throat as she was asleep with your daughter beside her, demanding to know to whom she had been speaking on the previous night.  You picked her up and pushed her against the wall repeatedly until her nose started bleeding, and then punched and kicked her to the upper body and head, and pushed her against the wall, causing a dent in the wall.

14The charges of assault and contravening a Family Violence Intervention order which comprise the background to the charge of attempting to pervert the course of justice for which I must sentence you, were dealt with at Sunshine Magistrates’ Court on 19 May 2021.  They comprised criminal damage, contravention of an interim Family Violence Intervention Order, committing an indictable offence whilst on bail, unlawful assault, two charges of common law assault, persistent contravention of a Family Violence Intervention Order, and intentionally causing injury.  You were convicted and sentenced to a total effective sentence of nine months’ imprisonment (180 days of which was reckoned as served), together with a Community Correction Order of 12 months which included undertaking programs to address your offending behaviour, (again) undertaking a men’s behaviour-change program and, also, an anger-management program.

15Subsequent to the offending for which I must sentence you, you were charged with offences which you committed on 10 October 2022 of making a false document and using a false document to the prejudice of another, and committing an indictable offence whilst on bail.  This offending involved you altering a national police history check which had been produced on 1 December 2016 setting out that at that stage, you had no criminal history.  You subsequently altered that document to change the certificate number and the access code, and also altered the date of issue from 1 December 2016 to 17 June 2022.  You then presented this document, as though you had never committed any criminal offences, for the purpose of obtaining employment.  At that stage, you were on bail for the offences of attempting to pervert the course of justice.  This offending was also in contravention of the Community Correction Order which you had received as part of the sentence imposed on 19 May 2021, at Sunshine Magistrates’ Court.

16On 29 November 2023, you pleaded guilty to the charges of making and using a false document and committing an indictable offence whilst on bail, and, without conviction, the charges were adjourned for a period of six months upon your undertaking to be of good behaviour and making a donation of $750 to a charity specified by the Magistrate.  Your counsel, Mr Shaw stated that the contravention was proven, but as you were in the final weeks of your Community Correction Order, no further order was made on the contravention.

17In a plea on your behalf, Mr Shaw told the Court that you completed secondary school in Pakistan and subsequently graduated with a Bachelor of Commerce from Punjab University in Lahore, one of the largest universities in Pakistan.  After coming to Australia in 2006 on a student visa, you commenced a Post-Graduate Diploma in Accounting at Swinburne University, but did not complete it. You subsequently undertook a Diploma of Hospitality at Ozford College, which is a private institution in Melbourne.  Mr Shaw stated that you had a good work history, having worked as an assistant accountant in 2006, a warehouse assistant from 2007 to 2015, a chef in 2015 and 2016, a warehouse assistant from 2016 to 2020, a pizza-delivery driver in 2021 and, up until being remanded in custody by me on 26 April 2024 after the plea hearing, you had been employed as a courier for Toll Logistics since 2022.  Mr Shaw submitted that your good work history should be taken into account as indicating that you have good prospects of rehabilitation.

18Mr Shaw also submitted that the factor of delay is a relevant matter in mitigation of sentence. There had been a delay between you being interviewed for the offence for which I must sentence you on 26 March 2021 and ultimately being charged on 11 March 2022.  Also, there had been further delay in that, although the matter proceeded to trial in the County Court by way of straight hand-up brief, there had been various directions hearings held in order to accommodate the prosecution obtaining translations of the calls from prison made by you to your brothers. Further, the trial had been adjourned at the request of the prosecution from 6 September 2023 to 16 April 2024. Thus, Mr Shaw submitted that the court should take into account that you have suffered the anxiety of this matter hanging over your head for a long period.  I do make some allowance for the delay and the anxiety occasioned by it. However, I must say that, in my view, the prosecution case on the charge to which you have pleaded guilty, was a strong one. Clearly, it is your legal entitlement to plead not guilty and run a trial if you wish to do so. However, save for the fact that you had made an application for a sentence indication on 24 August 2023, which did not result in a resolution of the charges, there is no evidence that, in the two years which have elapsed since you were charged, you ever offered to plead guilty to the charge for which I must sentence you.

19Your counsel told the court that you are a citizen of Pakistan but have lived in Australia since 2006.  From 2006 to 2013 you apparently had a student visa and, thereafter, between 2013 and 2015 you were given a temporary residency visa.  With sponsorship by your employer, Tandoori Nights, where you employed as a chef during 2015 and 2016, you made application for permanent residency.  This was apparently unsuccessful and, from 2016 to 2021, you were on a bridging visa.  In July 2021, a decision was apparently made to cancel your bridging visa, but you successfully appealed that decision to the Administrative Appeals Tribunal. On 20 December 2021, an order of the Administrative Appeals Tribunal was made in your favour resulting in you being granted a bridging visa, which apparently is your visa status at the present time.

20Mr Shaw stated that, having made your life in Australia over 18 years, you now face the prospect of deportation to Pakistan.  The provisions of s501 of the Migration Act (Cth) give the Minister the power to cancel your visa on character grounds.  In the event that you were to be sentenced to a term of imprisonment of 12 months or more, you would fail to pass the character test[3], and, also, the ministerial discretion is converted into a duty to cancel your visa. [4] In the event that a visa is mandatorily cancelled, unless the Minister exercises the power to revoke the cancellation, the person is required to be deported.[5] Further, as you have already been sentenced to a term of nine months’ imprisonment in the past, in the event that you were to be sentenced by me to a term of three months’ imprisonment or more, you would fail to pass the character test[6] albeit that the Minister would retain a discretion as to whether or not to cancel your visa.

[3]S.501(6) and s.501(7)(c)

[4]S 501(3A)(a)(i)

[5]S. 501CA(4) and s. 501, 503 and 198.

[6]S. 501(7)(d)

21The prosecution has submitted that the gravity of your offending for which I must sentence you calls for a term of imprisonment and concedes that, at the completion of your sentence, you will probably be deported back to Pakistan.  The prosecution concedes that the court may consider your potential deportation in the sense that it would render any term of imprisonment for you more onerous because of knowing that you face the prospect of deportation and, also, that any deportation would constitute an additional punishment because it brings to an end your opportunity to settle permanently in Australia.[7]  However, while your risk of deportation is relevant in each of the ways stated, it cannot control or dictate the sentencing outcome.  In other words, it would be improper for me to impose a sentence in order to avoid the consequences of the operation of the Migration Act.[8]

[7]Guden v The Queen [2010] 28 VR 288

[8]Loftus v The Queen [2019] VSCA 24 Paragraph 81

22On the aspect of potential deportation, Mr Shaw submitted that had you spent almost half your life in Australia, had worked here during the 18 years, were anxious to try to re-establish a relationship with your 12 year old daughter who is in Australia, and are said to be involved in the community here in Melbourne in that you play cricket and are said to be a practising Muslim.  No particulars were provided to the court of where, or for whom, you played cricket, or what mosque you attended or other Islamic activities in which you were involved in the community.  The court was not informed about any relatives you have residing in Australia, other than your daughter and estranged wife. Your mother, 3 of your brothers and other relatives live in Pakistan, whilst your brother Bilal lives in the United States.  Nevertheless, given the sentence that I intend to propose after taking into account all relevant sentencing considerations, I acknowledge that there is a considerable risk that you will be deported and that this will operate as a form of extra curial punishment.  18 years is a long time to have lived in Australia albeit that your first language is not English and your upbringing was in Pakistan and you studied there until the age of 24 years.  I accept that any time in custody may well be onerous because of your concern about being deported and that your chances of being able to settle permanently in Australia now are likely to have been lost.  I consider that the extra curial punishment by potential deportation is an important sentencing factor in your case and I have taken it into account as a significant factor which should reduce the sentence imposed.

23Your counsel submitted that you were remorseful for your offending. He relied upon your plea of guilty to support that submission, as well as two references which were tendered as Exhibit “1”.  One reference, dated 24 April 2024 from Mr Raja Kayani, who was in court to support you at the plea hearing, stated that he had known you for 16 years.  He stated that you had been flatmates together during your student life from 2007 to 2013, as well as working together at the Toll Group for five years before he moved to Sydney.  He stated that he and you remained in contact via phone and often visited each other before he returned to Melbourne in 2022.  He was sharing a house with you at the time of the plea hearing, although he does not refer to that fact in his reference.  He refers to you as being regarded by friends as “a very peaceful and a very kind person” and that you were “known for being a dedicated family oriented person and a loving father to (your) only daughter” and that he was shocked to find that you had been charged with this offence as he knew you “as a person with honesty and integrity”.  He speaks of your embarrassment and shame about your offending and the impact that it has on your character and future career prospects. When I raised with your counsel that significant aspects of the reference did not seem to fit well with your having assaulted your wife over a lengthy time, as well as having assaulted your daughter and having repeatedly breached a Family Violence Intervention Order, your counsel spoke with Mr Kayani, who confirmed that he had never met your wife or child and was simply relying upon what you had told him.  Moreover, the “sincere regrets” allegedly expressed by you to him for this offending apparently relate to the damage you have done to your own character and reputation, as distinct from any concern about potential injustice to your former wife or child or impact on the victim of this offending or potential erosion of the integrity of the justice system. Further, the author does not mention being aware that you were before a court for dishonest offending committed in 2022. In these circumstances, I attribute little weight to this character reference.

24The other reference is from Mr Anis Ur Rehman, who stated that he has known you for nearly 12 years.  He describes you as a person of integrity who has always strived to uphold moral values and principles and has shown remorse for any wrongdoing committed and taken responsibility for your actions.  He refers to you consistently showing kindness and support to those around you and he believes that you are capable of learning and growing from “this experience” and have the potential to “continue to be a valuable member of society”.  The attributes mentioned by the author are in stark contrast to the brutal offending towards your wife and repeated disobedience to a Family Violence Intervention Order, as well as breaching your bail on the matters for which I must sentence you at the time you committed the subsequent offence of making and using a false document. Whilst I accept that you may have been a good and supportive friend to your male associates, there is no evidence about the way you “always strive to uphold moral values and principles”, given the dishonest and manipulative nature of the conduct for which I must sentence you, as well as your subsequent offending, and the long-term brutality towards your wife.  Nor have I any evidence that you have “shown remorse for any wrongdoing and (are) committed to taking responsibility for (your) actions” except for your very late plea of guilty.  Thus, I attribute little weight to this reference, also.

25I accept that there is some utilitarian value in your having pleaded guilty after the jury in the first trial was discharged (through no fault of yours). Although it was a very late plea, you have saved the cost of a new trial, but I consider that the sentence discount in the circumstances should be modest. 

26I do not find that there is any evidence of true remorse or contrition on your part. You had treated your wife with brutality for years and brazenly contravened a Family Violence Intervention Order by trying to manipulate your young daughter into giving you information and making statements that might help you.  The offending to which you pleaded guilty only very recently was also of a brazen kind. It was committed while you were in custody after your bail had been revoked for persistent contravention of an Family Violence Intervention Order. You attempted to emotionally manipulate Ms Murtaza into providing a statement that would potentially mislead a court because it omitted crucial facts and thereby erode the credibility of your wife in relation to the dreadful treatment to which you had subjected her.

27After having served a sentence of nine months’ imprisonment imposed by the Magistrates’ Court in May 2021, upon your release, you then altered a 2016 certificate as to your lack of criminal history to make it appear that you had never assaulted your wife, breached the Family Violence Intervention Order and had no criminal history whatsoever.  In other words, having attempted to pervert the course of justice in relation to the complaints made by your wife, you then produced and used a document whilst on bail for the offence of perverting the course of justice by erasing the record of appalling domestic violence and disobedience of court orders.  In these circumstances I cannot find that you have made any significant steps towards recognising that deceitful, manipulative behaviour is simply not to be tolerated in our community.  You are a tertiary educated person, who has been living in Australia for quite a long time. You should know better, and your counsel has acknowledged that your moral culpability for the offending for which I must sentence you is high.

28In her Victim Impact Statement your wife[9] states that, after having found the strength and courage to finally report your violence after being isolated, unheard, pressured and shamed for a long time, it meant a great deal to her to have a witness speak the truth of what she knew of the crimes committed by you.  She speaks of her stress and anxiety and of being scared that you would prevent the truth being known and people would be turned against her by you, as you had done previously with her family and mutual friends.  She stated that, because of the crime for which I must sentence you, she has been re-traumatised about past family violence perpetrated by you.

[9]Exhibit “C”

29In her Victim Impact Statement, Ms Murtaza states[10]  that she felt stressed, as though under your control when your brother was calling her and pressuring her. She was afraid for herself and for your wife.  She stated that you had tried to influence her to do the wrong thing and created feelings of confusion by trying to make her feel sorry for you.  She stated that the calls and messages made by Bilal at your behest constantly interrupted her life and she felt under a great deal of pressure to agree to what was being asked of her.  She stated that she was afraid that your friends would find where she lived, as you had already passed on her phone number and this made her afraid for her and her family.

[10]Exhibit “B”

30The sentiments expressed in each of the Victim Impact Statements are understandable.  The gravity of this offence is reflected in the maximum penalty of 25 years imprisonment which Parliament has assigned to it. The strength of our rule of law and justice system here in Australia is an essential part of what makes this country such a wonderful democracy. The seriousness of what you did lies in the potential for harm which could have occurred had you succeeded in your attempt to have Ms Murtaza make a statement which concealed matters which were plainly truthful and relevant to the charges in the Magistrates’ Court, as well as to any bail application that might have been made (albeit that it did not proceed). 

31What you attempted to achieve strikes at the heart of our justice system in Australia.  You tried to have Ms Murtaza produce a statement which was untrue by painting to the court a false picture of the type of person you were by deliberately omitting any reference to arguments between you and your wife and the fact that you had admitted to her that you had beaten your wife and, indeed, that she had seen marks from such beatings. This is a case where your attempt involved a high degree of manipulation by giving a very detailed strategy to your brother Bilal to emotionally pressure Ms Murtaza into making an inappropriately favourable statement on your behalf.  The detail of your instructions to Bilal was clearly reflected in his messages to Ms Murtaza.  Bilal’s implementation of your detailed, manipulative instructions was spread over 14 days and was persistent and insistent.  These messages came in a context of a lead up of many other messages from Bilal to Ms Murtaza from 30 December 2020.

32Your conduct was attempting to undermine the prosecution’s ability to bring you to justice.  It was calculated to avoid the consequences of multiple assaults upon your wife over a ten year period, as well as devious attempts to have your daughter say things on your behalf or pass to on to you information in persistent contravention of a Family Violence Intervention Order. It was highly morally culpable behaviour, particularly as your bail had already been revoked for trying to manipulate your daughter in breach of the Family Violence Intervention Order and, yet, you were trying to manipulate in a very deliberate way the outcome of proceedings in the Magistrates’ Court.  Although there were no threats or violence involved, there was a high level of emotional pressure put upon Ms Murtaza through a relentless barrage of messages from a person she had never previously met, who had been supplied with her mobile number. It was serious, calculated premeditated behaviour by you. Ms Murtaza makes it plain that she felt very vulnerable, as she tried to resist this pressure and was afraid for herself and her family.

33An attempt to pervert the course of justice relating to your own serious offending against your wife and child is grave.  It is particularly grave because it was an attempt by you to prevent your wife from achieving the full protection of the law.  Although you are plainly not to be punished, again, for the offending which you sought to have Ms Murtaza make a statement to conceal, this is an offence which warrants denunciation, general deterrence and just punishment.  You sought to undermine and influence the outcome of the hearing of serious criminal allegations, as well, potentially, of your application for bail.

34Your degree of planning and your motive necessitate a sentence which places some emphasis, also, upon specific deterrence. Having said that, the court must acknowledge that, since you engaged in this offending, you have completed a sentence of nine months’ imprisonment, as well as a Community Correction Order of 12 months.  In addition, I take into account as part of your general circumstances that, after you were released from custody following the nine month sentence of imprisonment, you were taken into immigration detention, where you remained from 8 August 2021 until you were released on 20 December 2021 upon the Administrative Appeals Tribunal finding that the decision to cancel your bridging visa should be set aside.  As part of the 12 month Community Correction Order you undertook a Men’s Behaviour Change program for a second time, having first undertaken such a course back in 2017 as part of a without conviction adjourned undertaking imposed in relation to earlier assaults upon your wife.

35Since being back in the community. you have not committed further offences of violence in a domestic context or otherwise, although I understand that the whereabouts of your estranged wife isn’t known to you and you apparently have not had any other intimate relationships with women. Whilst acknowledging a pro-social factor of a reasonable work history, I am guarded about your prospects of rehabilitation because of the lack of evidence of remorse and your subsequent offending relating to making and producing a false document to hide your criminal history.  This shows a character trait whereby you are prepared to manipulate in order to deceive and it is troubling that the subsequent offending occurred whilst you were on bail for the offending of attempting to pervert the course of justice, as well as still serving a Community Correction Order.   

36Whilst making it plain that it is no part of my role to punish you for offences which you have already been punished, in all the circumstances I have determined that the only appropriate sentence for this offending is that of a term of imprisonment with a head sentence and a non-parole period.  I consider that a sentence of a Community Correction Order urged by your counsel is simply not adequate to reflect the gravity of this offending which strikes at the integrity of our criminal justice system. Your counsel acknowledged that this offending showed a certain mindset towards your wife and Ms Murtaza.  In my view, that is an appropriate concession. It manifests a bullying and manipulative attitude towards these two women, each of whom were vulnerable in their own way.  Where these vulnerabilities exist within the context of family violence, our Court of Appeal has made it clear that the potential erosion of the physical and emotional safety of others is a very serious matter.[11]

[11]Baker (a Pseudonym) v The Queen [2021] VSCA 158 and Shiryar v The Queen [2022] VSCA 96

37For a tertiary educated person of a mature age, you seem to have taken a long time, according to your counsel, to grasp that attempting to manipulate Ms Murtaza, via your brother, was wrong.  You have taken responsibility for your offending by pleading guilty very recently. As previously mentioned, you breached your bail on this matter by further offending which involved deceit. To my mind, the totality of your criminal history demonstrates a person who has scant regard for the law in this country.  I have not been provided with any psychological reports to provide any explanation as to why you thought it appropriate to offend in this serious way, or that you have seen the error of your ways, whether it be in relation to your attitude towards women, as manifested in the past conduct towards your wife and Ms Murtaza, or in relation to what appears to be your poor relationship with the truth and respect for our legal system.

38The gravity of your offending, as correctly articulated by the prosecutor, Mr Turner, lies in your strategic, systematic, persistent conduct to undermine the police case based upon your wife’s complaint of domestic violence and, thereby, attempting to undermine the protection that the law provides to such a vulnerable victim of domestic violence.  Had you succeeded in your attempt to pervert the course of justice, that would have left your wife and child even more vulnerable.  It is that objective gravity which causes a need for denunciation and general deterrence to be the predominant sentencing principles. General deterrence means that in sentencing you, the Court must send a clear message to other people who might engage in such manipulative, deceitful behaviour to try to pervert the course of justice that they will meet with appropriate punishment.  Not only could your wife have been rendered more vulnerable, but it is plain from Ms Murtaza’s Victim Impact Statement that she was made to feel guilty and confused and afraid for herself and her family.  Those who need protection in our community need to know that they can rely upon our justice system for that protection and that attempts to undermine it will be dealt with very seriously.

39On one charge of attempting to pervert the course of justice you are convicted and sentenced to be imprisoned for a period of two years.  I direct that you serve a period of one year before becoming eligible for parole.  I declare a period of pre-sentence detention of 14 days to be time reckoned as already served under the sentence imposed this day. 

40Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your plea of guilty, the sentence imposed would have been two and a half years’ imprisonment with a non-parole period of 20 months.