Director of Public Prosecutions v Shakir

[2017] VCC 1374

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00770

DIRECTOR OF PUBLIC PROSECUTIONS

v

MOHAMMAD SHAKIR

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 September 2017
CASE MAY BE CITED AS:	DPP v Shakir
MEDIUM NEUTRAL CITATION:	[2017] VCC 1374

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Breckweg
For the Accused	Ms S. Parsons

HER HONOUR:

1Mohammad Shakir, you have pleaded guilty to one charge of marrying a person who was not of marriageable age, contrary to s.95, sub-s.1 of the Marriage Act 1961 Cth. The maximum penalty for that offence is five years' imprisonment.

2The circumstances of your offending are set out in the summary read by the prosecutor and tendered upon your plea.  That summary represents the agreed factual basis upon which you have pleaded.

3The facts are as follows.

4On 29 September 2016, you went through a marriage ceremony with a child who was not of marriageable age at an Islamic Mosque in Noble Park.  You were, at the relevant time, aged 34 and the victim was aged 14 and a half.  The ceremony was officiated by your co-offender, Ibrahim Omerdic, who was at the relevant time an Iman authorised to solemnise Islamic marriages which are marriages for the purposes of the Act.

5By way of background, you had been residing in a house with the victim, her mother and her two younger siblings from about April or May of 2016.  The victim and her family shared a bedroom and you had another bedroom.  There were also several other people residing in the house who are not relevant for present purposes.

6In June of 2016, DHHS were notified in relation to concerns about the existence of a relationship between you and the victim.  As a result of that notification, DHHS conducted an investigation and interviewed relevant parties, including attending the victim's school and speaking to her regarding a possible marriage between you and her.  DHHS were informed that there was no inappropriate relationship, nor marriage.

7On 28 September 2016, the day before the marriage ceremony, DHHS workers attended your premises.  You were informed that it was likely you would have to leave the house and reside elsewhere.  DHHS workers specifically advised both you and the victim's mother that it would be illegal for the victim to be married as she was under 16 years of age.

8Later in the day, the victim's mother informed DHHS workers that you would leave the house.  Despite what she said, I think it is clear that the victim's mother played a supportive role as regards the marriage.  Indeed, it was put upon your plea that she first suggested the union.  Her conduct during the recorded ceremony makes clear that she made no attempt to protect her daughter.  The only reasonable inference is that she actively supported the illegal marriage in clear breach of both her moral obligation to her daughter and in flagrant disregard of the law.

9On 29 September, the marriage ceremony occurred and various aspects were recorded and found on your mobile phone.  The audio reveals conversations in both English and Rohingyan.  There is discussion in relation to mahr, which is required as a form of payment paid by a groom or groom's family to the bride at the time of marriage.  You confirmed having provided gold.

10A Certificate of Marriage of the Board of Imams of Victoria dated 29 September 2016 completed by your co-offender was located in his office.  The certificate records the giving of gold to the value of $1,480 and certifies that you and the victim were united in an Islamic marriage on 29 September of 2016.

11The video discloses that during the ceremony there was discussion in relation to the marriage certificate.  You are heard asking for a photocopy but the Iman told you it could not be provided because "She's very young."  You were advised by your co-offender to say that you and the victim had “just had a prayer”.

12The video depicts your co-offender detailing the rights and duties of a husband and wife and the exchanging of vows.

13There is no dispute that the Islamic marriage ceremony conducted on 29 September was a valid marriage for the purposes of the Marriage Act, save of course, that the victim was not of marriageable age.

14You were interviewed in relation to this matter on 4 October 2016.  You denied the marriage ceremony had occurred.  You asserted that two or three days previously, you had prayed with the victim at home and at the mosque and that that was done as a commitment witnessed by God and parents.  You denied knowing the victim was 14.  In essence, you denied wrongdoing.

15This is a serious offence and serious example of this offence.  You clearly knew what you were doing was wrong.  The victim was vulnerable due to her age and circumstances, including what you knew in relation to difficulties with her step-father.  You had been warned by DHHS.

16I am satisfied beyond reasonable doubt for the purposes of sentencing that you at least knew the victim was aged 15 or under. In your record of interview, you describe her as "Not yet suitable."  You told police that you thought you could have a stronger or permanent relationship “when she was about 15 or 16 years or later, but not now”.  You knew she was, to use the words of your co-offender during the ceremony and your own words in the record of interview, “very young”.

17Later in the interview, you asserted that you did not know that the victim was 14.  You said you were guessing she was 16.  Your answers in this regard were, in my view, far from compelling.  It is not disputed that DHHS had told you the day prior to the illegal ceremony that she was under 16.

18You clearly knew the victim was a school girl as you lived in the same house for some months.  You had seen her in her uniform.  You told police that you thought she was in Year 8 or 9.  Given what you knew, it simply defies logic or belief that you would not have ascertained her age prior to the marriage if that was not already known to you.  It is relevant that there was a significant age disparity of some 20 years between you and the victim.

19You engaged in discussions with your co-offender which disclosed that you both knew what you were doing was illegal and you sought to concoct a story to cover your criminality.

20It was put upon your plea that this offending arose as a result of a different cultural understanding of what is appropriate as regards marriage.  In my view, it is clear you knew what you were doing was wrong.  You knew you were contravening the law of this country and you proceeded in the face of advice to that effect.

21To say that you come from a culture permissive of child marriage carries no weight and provides no mitigation as regards your offending.  While religious tolerance and firm embracement of multiculturalism are cornerstones of Australian society, it is not migratory that your conduct was permitted within the rules of Islam or any other religion or belief system.  It is simply not open for any member of our community to contravene our laws out of preference for some norm or even law that has absolutely no application in this country.  We have one set of laws that govern all who choose to live in our community.  Those laws must be upheld.

22In this case, the law is designed to protect our children, including from themselves and the follies of immature decision making.  What you did was legally wrong and morally indefensible.  The victim was entitled to a childhood you took from her.

23General deterrence must be given weight in the sentence I will impose at this day.  The message must be clear that offending which had the potential to so seriously damage the lives of our children will never be tolerated and that those who contravene laws designed to protect our children should expect that condign punishment will result in appropriate circumstances.

24I turn to your plea.

25You pleaded guilty to the charge the subject of the current indictment at committal in April of 2017.  That charge had been laid as an additional charge in February of 2017.  I am sentencing you on the basis that you pleaded guilty at the first reasonable opportunity on the current basis and subsequent to more serious charges being withdrawn by the prosecution.

26Arraignment in this court was not without difficulty, but ultimately, you entered your plea.  I am prepared to take the view that language and cultural issues played a role as regards these matters.  You are entitled to the full benefit of an early plea and I am sentencing you on that basis.

27You have no prior convictions and nothing subsequent.  You are to be sentenced on the basis that you are, apart from this matter, a man of good character.

28You are now aged 35.  You were 34 at the date of this offending.  You were born in Burma and you are the eldest of six children.  Your family owned a grocery store and they also engaged in farming.  You mother additionally worked as a seamstress.

29You attended an independent village school where you completed Year 8, before attending an independent middle school where you completed Year 10.  Your community was forced to provide education due to discrimination and your inability to attend State schools.

30After leaving school, you worked in the family business and assisted on the farm.  You also volunteered in a program which administered Polio vaccines in your community.

31Your family were the target of persecution as members of a Rohingyan Muslim minority.  Your father, I have been told, was beaten and his business robbed by the military on a regular basis.  The family lost part of their farming land during military operations in the 1990s.  By 2004, you had determined to seek a future outside Burma due to the ongoing discrimination and violence.  You travelled by boat to Thailand and then Malaysia, where you were registered with the UNHCR.  You worked as a manual labourer while living in Malaysia.  It was here that you met the victim's mother for the first time.

32In the 2012 Rakhine State riots, your family lost their shop and they were forced to flee to a refugee camp.  That same year, you travelled by boat to Indonesia and then Australia in search of a better life.  The boat was intercepted by the Australia Navy off the coast of the Northern Territory.  You then spent six months in immigration detention in Darwin before being transferred to a centre in Queensland.

33In 2013, you were released on a bridging visa and you located to Melbourne where aid organisations assisted you, including as regards employment applications.  You found accommodation with a nephew in Springvale.  You commenced English lessons hoping to improve your prospects.  I note that you made independent efforts in that regard, attending your local library.

34Despite your ongoing efforts and numerous applications, you estimate up to 200, you were unable to secure employment.  I accept that you were isolated by language and lack of familial support.  I accept that you were finding cultural assimilation challenging. Your counsel commenced her plea by describing you as a man for whom "Nothing good ever happened."

35In April or May 2016, as I have already noted, you moved into the premises with the victim and her family.  Your counsel put that this was your first experience of a family environment since the age of 22.  It seems you developed a friendship with the victim.  You were aware of some of her personal issues with her family.  It seems that you saw yourself as playing some role in her protection, but how that translated to your agreeing to marry her remains unexplained.

36Since your remand in custody, you report that you have only had one prisoner with whom you can converse in your native language.  I accept this increases the burden of imprisonment.

37Whilst in custody, your bridging visa was cancelled and you will be returned to immigration detention upon your release.  Because you are deemed stateless, you cannot be deported and you will remain in immigration detention unless and until you obtain a further visa.  What will happen in this regard is unknown and any conclusions which might sought to be drawn would be speculative.

38I have received your report dated 17 September from Dr Aaron Cunningham.  He assessed you in custody in September of this year.  He says you presented as flat and depressed at the time of his assessment.  He noted that you were stressed and that you expressed hopelessness as regards your future, which you see as uncertain.

39There was no indication of intellectual disability, nor any deficit which contributed to your offending.

40Dr Cunningham assessed you as presenting with adjustment depression related to your current incarceration.  He opines that your depressive symptoms may abate in custody depending upon your acceptance of the court outcome and whether you can achieve a greater degree of certainty.

41Turning to your prospects of rehabilitation. I think your prospects of rehabilitation are very good and your time in custody is likely to have had significant deterrent effect.  You are 35 without prior matters.  In my view, the risk of reoffending in like fashion is, as described by your counsel, ‘negligible’.

42You have expressed your remorse as regards damage, not only to your own reputation and the complainant, but the reputation of your wider community.  You have instructed that you are ashamed.

43There are a number of matters you are entitled to have taken into account.  Firstly, your plea, which I have noted was entered at the earliest available opportunity.  You have spared the witnesses the ordeal of giving evidence and saved the community the time and expense of a trial.  You are entitled to have your plea and the stage in proceedings at which that plea was entered taken into account in your favour, and I do so.

44I accept for the purposes of sentencing that you are remorseful as regards this offending.  I accept that you are isolated in custody due to language and that this has increased the burden of imprisonment.

45It is fair to say that your life history is one of disadvantage.

46As regards parity, your co-offender, the Iman who conducted the ceremony, was prosecuted for a different offence with a six month maximum penalty.  You are to be sentenced on the basis of the offence to which you have pleaded.  That is not to say that parity had no role to play, but it must be viewed in the context of different and distinct offences, which were the subject of different criminal prosecutions.

47As well as the matters to which I have referred, I must take into account other relevant sentencing considerations.

48I have had regard to the matters set out in s.16A of the Crimes Act 1914. In addition, general deterrence is of particular importance in matters such as this. I must seek to deter not only you, but others who would engage in like conduct.

49Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must protect the community from this type of offending.

50I must seek to deter you from future offending, although I think this factor can be given less weight having regard to your history and the progress of this matter through the criminal justice system, including your remand.

51Your counsel submits that while a term of imprisonment is warranted, it should be a period less than time served.  The prosecution submit that any term of imprisonment should exceed time served.  There are no available sentencing statistics and no comparable cases as this is the first prosecution under this section.  Sentencing, as always, is a weighing exercise and I have approach my task on that basis.

52Would you stand please?

53This is a serious offence.  You are convicted and sentenced to be imprisoned for 18 months.

54I direct that you be released on a recognisance release order after serving 12 months.  The undertaking is in the sum of $2,000.  You are required to be of good behaviour for six months.

55I direct that 352 days be reckoned as served.

56I direct it to be noted in the records of the court that but for your plea of guilty, I would have sentenced you to be imprisoned for 24 months and ordered you be released on a recognisance release order after 18 months.

57Counsel, is there anything arising?

58MS PARSONS:  No, Your Honour.

59MS BRECKWEG:  No, thank you.  I am just going to have a look at this.

60HER HONOUR:  Thank you.  Madam Prosecutor, are you in a position to prepare the RRO?

61MS BRECKWEG:  Yes.

62HER HONOUR:  Have a seat please, Mr Shakir.

63INTERPRETER:  (Indistinct words.)

64HER HONOUR:  Sorry.  There is a document which needs to be prepared.  Mr Shakir, your counsel will attend upon you in the cells.

65MS BRECKWEG:  Thank you, Your Honour.

66HER HONOUR:  Just show the document to Ms Parsons please.  Yes, Mr Shakir, if you would stand for a moment please.

67Mr Shakir, I am ordering that once you have served 12 months, you are released on the giving of an undertaking to be of good behaviour for six months.  The amount of the recognisance is $2,000.  You do not need to pay that amount unless the order is breached.  You understand that if you commit any offence during the period of the undertaking, you will breach the order and you will be brought back before me.

68Your counsel will attend upon you in the cells and ensure that you understand the text of the order.  The order may be discharged or varied under s.20AA.  Do you agree to be bound in accordance with this order?

69OFFENDER:  Yes.

70HER HONOUR:  Very well.  Madam Associate and Ms Parsons, would you approach please and have it signed. 

71Yes, very well.  The order is now complete.  I thank both counsel for their assistance in the matter.  If there is nothing further, I will stand down.

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