Director of Public Prosecutions v Shams (a pseudonym)
[2023] VCC 1479
•22 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ZAFAR SHAMS (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial 14 July to 2 August. Plea 11 August 2023 |
| DATE OF SENTENCE: | 22 August 2023 |
| CASE MAY BE CITED AS: | DPP v Shams (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 1479 |
REASONS FOR SENTENCE
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Subject: contravention of family violence order intending to cause harm or fear for safety x3; Recklessly Causing Injury x2; conduct endangering life, kidnap x2. Verdict after trial. 2 separate assaults 2 days apart in April 2019; conduct endangering life (choking) on the later April date. Calculated removal of two children from mother under guise of access visit. Departed to Pakistan. Significant premeditation including obtaining replacement passport for son by reporting existing passport lost and use of a false document purporting to be from mother to obtain the replacement and the first passport for infant daughter.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. James | Office of Public Prosecutions |
| For the Accused | Mr S. Kennedy | Valos Black |
HIS HONOUR:
1Zafar Shams[1], following a 14-day trial conducted in July and August of this year, on 2 August you were convicted by a jury of three charges of contravention of a family violence order intending to cause harm or fear for safety, two charges of recklessly causing injury, one charge of conduct endangering life and two charges of kidnap.
[1] A pseudonym
2You have been in custody since verdict and there had been an earlier period where you had spent 280 days in custody before being granted bail. All up then, I was told there was a total of 297 days pre-sentence detention as of the day of the plea. That total has obviously risen since.
3You were born in December 1990 and are 32 years of age and have no criminal history though I was told about a single matter which is outstanding. I put that matter aside altogether.
4The maximum penalties for the matters that I am dealing with are 5 years for the two charges of recklessly causing injury and the three intervention order breaches, and 10 years for the conduct endangering life charge. Kidnap is punishable by a 25-year maximum term of imprisonment.
5The verdicts followed a trial and for that reason, there is no agreed summary. I must sentence in accordance with and consistently with the jury verdicts. I obviously must give you the full benefit of those matters upon which you were acquitted. For any matter of aggravation, I must be satisfied of it beyond reasonable doubt.
6My brief procedural summary in the first paragraph of these remarks mentioning a trial in July and verdict taken in August might imply that this was a smooth running, problem free trial. It really was not. We had in fact empanelled a jury on 1 March and then we had the prosecution opening and a defence response. The prosecutor raised some concerns about the form of the defence response as I did myself, but we commenced the complainant’s examination in chief on Thursday 2 March and limped through to the end of the day. On the following day, this is Friday 3 March an application was made by the prosecutor to discharge the jury owing to the nature of the defence response delivered by your counsel, Mr Kennedy.
7There is much more I could say about the nature of that defence response, or responses, there were three of them. It simply suffices for me to say I acceded to the application to discharge the jury and owing to issues then as to my own and also counsel's availability to immediately re-empanel, instead we went on with a number of pre-recordings. By agreement, we fully pre-recorded a variety of witnesses including the victim, as she is now, Ms Zareen Laila[2], her three brothers who were overseas and a variety of other witnesses. Some of these were due to later availability issues, some just as a matter of convenience. Some to avoid what I took to be the high likelihood of coming to grief if the evidence was taken live before another jury.
[2] A pseudonym
8The prerecording process permitted editing of any problematic answers including non-responsive ones. There were a number of problematic areas that gave rise to editing.
9Ms Laila's evidence was taken over a number of days. We also had the problematic issue of taking evidence from those witnesses in Pakistan and that required us to sit after hours owing to the significant time difference in play.
10In any event, all concerned thought it best to pre-record and we did that so as to be in a position to run the trial efficiently in July.
11Let me return to the charges. The charges on the indictment related to 4 dates. March 2019, 25 April 2019, 27 April 2019 and finally 29 August 2019. You were acquitted of Charge 1 common assault relating to the alleged incident in March 2019. For all the other dates, guilty verdicts were brought in and they stand as a rejection of your defence, which was of there being no assaultive behaviour taking place on 25 April or 27 April, with an alibi said to exist on 27 April and the claimed total agreement and consent by your wife in all that you did on the 29 August. True it is you then you were acquitted in relation to the two charges of intentionally causing injury, but in each case, you were found guilty of the lesser alternative of recklessly causing injury. You were acquitted of the charge of threat to kill, which was Charge 9 on the indictment. No lesser alternative was available to the jury in relation to that charge. I note that the jury found you guilty of conduct endangering life taking place on that very same occasion.
12It is plain then that for the matters that you have been found guilty of, the jury has acted on the account of the complainant. There is no inconsistency of verdict in this case. Charge 1, the charge of common assault for which you were acquitted, had no supportive medical evidence at all, and the jury were given a separate consideration direction and plainly applied that direction very conscientiously if we look at the range of verdicts delivered. One can see that in the way that they have worked through the charges individually for 27 April.
13Though not satisfied beyond reasonable doubt of that charge (Charge 1 Common assault) , all the other charges for which there was an acquittal have to be seen in light of the guilty verdicts delivered in relation to those same occasions.
14You gave sworn evidence and you denied that there was any assaultive behaviour or any breaches of the intervention orders. Your account as to the alibi on 27 April was something of a moveable feast. It altered from time to time but plainly has been rejected given the guilty verdicts delivered by the jury for 27 April being guilty verdicts for breach of the intervention order intending to cause harm or fear for safety, recklessly causing injury and also conduct endangering life.
15In your evidence, you maintained your police interview account and swore that you had the complete agreement and consent from your wife to take the children to Pakistan. That account has been completely rejected. It would have been amazing if it had not been. Though I do not think the Crown were too happy with the legal direction that I gave, I told the jury that if they thought that that was even a reasonable possibility, they would be required to acquit you on Charges 10-12. The jury were left in no doubt that the Crown would have to exclude beyond reasonable doubt that reasonable possibility and they clearly did.
16I see no need then to set out the full details of Ms Laila's evidence in the key areas here. The written amended summary of prosecution opening for trial dated 3 February 2023 fairly sets out the details and she gave evidence broadly consistent with that document. Obviously enough though, I do not act on her evidence touching upon the charges for which you were acquitted.
17I will only briefly summarise the facts so that my sentencing remarks and my ultimate sentence might be understood by anyone who happens to access these reasons.
18You were married to Zareen Laila. Whether it was in January 2016 as the opening described at para 3 or earlier in 2014 as Mr Kennedy advised the Court, it is just not critical. I do not reach any view as to the happening of some uncharged acts in 2016. I will not sentence you on the basis of finding that those events actually took place. Plainly though, the relationship as of 2018 was an unhappy one. Your counsel concedes as much. Police had been called to the house by your wife on 4 May 2018 following an argument and some allegations of violence. This is uncharged but I do not doubt that there was some form of confrontation. One of your wife’s friends, Mr Sikandar[3], turned up at the house. He had turned up previously when the police had been called. On 4 May when he turned up, Ms Laila's glasses were broken and she was sporting some marks on her arms and was visibly upset. A safety notice was issued on 4 May 2018.There was an interim intervention order then in place.
[3] A pseudonym
19I have no doubt at all that you spelt out very directly to your wife the vice of her having taken the relationship problems outside the relationship and to the police. There was disapproval from you and from your family, of that I have no doubt at all. See TT69. You told her that she had tarnished your name and that the matter, that is the relationship, was now beyond repair. The only solution was to return to Pakistan. She did not wish to return to that country and she feared for her safety if she did. She chose though not to proceed with the intervention order application. I have not mentioned that by this time there was a son, Farid[4] born in November 2016 and a daughter Rizwana[5] born in August 2018.
[4] A pseudonym
[5] A pseudonym
20The summary sets out some of the detail of the various intervention orders. Indeed, the written prosecution submissions filed on the plea goes into far greater detail as to the chronology and I do not see the need to set it all out.
21I have no doubt at all that your wife was left very much on the outer but felt the strong need to reconcile. It was, in part at least, a cultural thing. A need not to leave you or divorce you or be divorced by you. Also, she had concerns about the children. I have no doubt at all that you did tell her that if she spoke to her family that you would divorce her. There was a further incident on 9 June 2018 and the police then applied for variation of the order. A final order was made on 14 November 2018 and was served on you a few days later. See Exhibits Q and R. It was not a full order. It still permitted contact and communication but it prohibited any family violence.
22Charge 2 involved your attendance at your wife's home on 25 April 2019. As I have said, at this stage you were not prohibited from attending. The order permitted attendance and communication but it prohibited any act of family violence. You breached that order as you assaulted her that day. You breached that order with the specified intent. Very broadly, you came home very late, there was an argument, as there often enough was, about her suspicions about you having affairs and you then beat her, choking and slapping her, pulling her hair and then wrapping her up and hurting her arm. See TT178-180. She was crying and begging you to stop. She did require some medical treatment including an x-ray the next day and there was evidence of that disclosed in your banking records.
23This gives rise to Charge 2 the breach of the order intending to cause harm or fear for safety and Charge 4 recklessly causing injury. As I have said, you were acquitted of the charge of intentionally causing injury but found guilty of the lesser alternative of recklessly causing injury.
24On 27 April you came home after work. Though you had filed an alibi notice, it was a mighty strange one. The timing of the incident was not fixed. Your wife was not certain of the timing but indicated that it was when you got home from work that night. Another reason the alibi notice was really quite strange was that in your police interview you had described two incidents a couple of days apart. The second incident that you described had some real similarities to the event described by Ms Laila though you put her forward as the aggressor. You thought that the first incident was on the public holiday. Well, it was. It was on Anzac Day. Your account of no assault on that evening, on the Anzac Day, has of course been rejected by the jury. Your interview account focussed on the second incident taking place, you said on the Sunday night, so the night of 28 April not the 27th as was asserted by the prosecution. Your sworn evidence moved between two incidents and one. At one point you told the jury that you never went back to the house after the incident on the public holiday. Well that flew directly in the face of your own interview account, or accounts, that you had given earlier in your evidence. It also of course flew in the face of your victim's account. Not just her account but the evidence of her obtaining assistance from a friend on the Sunday and before the evening. She attended the police station at 1:30pm on that Sunday, so well before the evening, with visible injuries and she made a statement describing the incident the night before. Her injuries were photographed on 28 April. She was seen by a doctor on the afternoon of 28 April, so again well before the evening, and she gave a history to the doctor and to the police of an assault the night before. She described being choked. Her written statement made on the 28th and well before the evening detailed the incident as well. Your account of the event taking place on Sunday night was looking very sad and sorry indeed, and instead, you occasionally in your evidence retreated from the existence of any second incident at all, which had its own raft of issues. I could say much more about the strangeness in this area with an alibi that was, at best, only a partial alibi. The fact is you were there and you assaulted her there on 27 April. The jury was satisfied of this beyond reasonable doubt. You banged into the garage on that occasion and the incident was then up and running with an argument about a phone and your collecting belongings. You were demanding the PIN to her phone. She declined and then you assaulted her beating, slapping and choking her. The children were present. Indeed at one point she was holding the baby.
25You choked her manually and she lost consciousness. She had bruises consistent with a choking mechanism. The jury has been satisfied beyond reasonable doubt that that act occurred as you have been found guilty of conduct endangering life and that was the act particularised in that charge, Charge 8 on the indictment. You also have been found guilty of recklessly causing injury for the physical attack not connected to the choking. See TT 181-202 You were abusing her and at one point in the assault, you pulled her by the hair and dragged her back into the house, hurting her ankle. This was when she was going outside or trying to go outside to call for help. Now she described a threat issued by you, one reinforced by the carriage of a knife from the kitchen. The jury have acquitted you of that charge (Charge 9). I do not doubt that you were the aggressor throughout this night. I am not for one moment satisfied that your wife turned on you with a knife at any point. Nor am I satisfied that she abused you in the extravagant manner that you described in your evidence where you said she used words to the effect 'You son of a dog, you son of a prostitute. Your sister is like a slut. I'll make sure that you suffer like an insect.' See TT472. Those things were not said at all. I do not doubt at all however that you used a term that she hated, a slang word for prostitute. See TT191. I am satisfied of that beyond reasonable doubt. I must give you the full benefit of your acquittal. Given the jury's acceptance of Ms Laila’s account as to the surrounding events (that is to say the recklessly causing injury and the conduct endangering) it seems likely to me that the jury was satisfied of at least some of your conduct but not of it constituting a threat to kill, and as I have said there was no lesser alternative available to them. There were aspects in her evidence of you threatening self-harm in the course of an incident. The knife wounds that you disclosed had some hallmarks of self-infliction which had been referred to in her evidence. Your description provided to the jury of the mechanism of those wounds and the very high level of force employed by her would be most unlikely to have produced the slight injuries that you were sporting. Ultimately though, I cannot know for sure what the jury made of all of this. I certainly do not sentence you for carriage or use of a knife or any threats targeting your wife on that occasion. To do otherwise would be not to give you the full benefit of the acquittal on the threat to kill charge.
26There was though the evidence of the injuries sustained. Evidence from Ms Laila herself, from her friend Rukhsana Sadia[6], from the policeman SC Langmaid who saw Ms Laila on 28 April and who took photographs, marked as Exhibit J and from photographs taken by another police member on 29 April as well as from the Victorian Institute of Forensic Medicine nurse who examined your wife and took photos and made drawings on 1 May. See Exhibits L M and N. There was a payment disclosed to a locksmith within your banking records. I have not mentioned, but a lock was broken on the 27th.
[6] A pseudonym
27Again it is clear that this was a nasty incident.
28I do not understand either of those instances of recklessly causing injury to have involved punches or to have caused any sizeable physical injury. I am satisfied beyond reasonable doubt that the incident on the 27th occurred in the presence of the children who were upset.
29As to the kidnap, well it was plain from all the evidence that you wished to leave Australia. You had never wanted the intervention order. By May 2019, it was a full intervention order. See Exhibit S. That order prohibited contact, communication and any approach to your wife or either of the children, whatever you said in your evidence to the contrary. The only exceptions were spelt out in the document itself. There was no family court order in relation to the children. Therefore, you were not free to contact them or to approach them. When interviewed in May 2019 in relation to the assault allegations, you told police how much you had missed your children in the preceding 9 months.
30There had still been conversations about reconciling mainly flowing from your wife. However, you made it clear that that would only occur if she went back to Pakistan. You wanted your wife to move to Pakistan. She was fearful of doing so and would not do so. By this stage your student visa had been cancelled. You appealed but ultimately you lost that appeal.
31The full order prohibited contact with your children. You spoke in your later police interview of your desire not to have had them included on that order. That was against your wishes. You had made some overtures on the WhatsApp communications to your wife about obtaining a passport for your daughter, Rizwana. Your wife essentially ignored you. She certainly did not agree at any stage. (See for instance 25 May 2019, pp 509 of 967 in Exhibit HH) She put you off and you were not at all happy and you issued a pretty accurate prediction of how she would be left with nothing in in her hands. See 21 May 2019 that same exhibit p9, where you said: “And the seed that you have sowed, Farid and Rizwana will eat it's fruits, and then there will be nothing in your hand. Just wait."
32She had determined by about May 2019 that she had had enough and that she was going to separate. She still had an understandable interest in you having some role in the children's lives. You were their father after all and no doubt the children missed you as well. It is true then that she allowed contact which involved you formally breaching the order once it was a full order. This was not, as your counsel seemed to be suggesting, a matter in mitigation. As to the earlier order which permitted contact, she never consented to you throttling her on 27 April or assaulting her on the 25th. These were your choices not hers. Your actions. Nor did she ever, ever consent to you taking the children overseas.
33Whatever stance she took in relation to the full order from May 2019, that order prohibited you from making contact. It prohibited communication. It impeded your ability to be with the children. Your wife was not giving you permission to take the children overseas at any point. Indeed, when she learnt that you had taken them, she could not believe it. That is because though you had intimated that you wanted to get a passport for Rizwana, she knew that she had put you off. You never asked for Farid's passport. She had that passport. It had never been lost. Without it and also a first passport for your daughter it was, as far as she was concerned, impossible for you to take the children overseas. Rizwana was 12 months of age. She had no passport. Ms Laila no doubt took some confidence or comfort from her being in possession of the boy's passport and the fact that the little girl had none.
34However, what is abundantly clear is that you then set about secretly obtaining various travel documents. Had this arrangement been by agreement, there would have been no need for any secrecy. You would have simply asked for Farid's passport and she would have given it. Well that is not what happened at all. You did not ask and she did not give. Instead, a false document was created. A document that was witnessed on 26 June 2019. That purported to be a statutory declaration though of course it was no such thing. See Exhibit P and contrast it with a true statutory declaration, the template marked as Exhibit O. For convenience, I will keep referring to it as the statutory declaration none the less. Of course, it was not. It purported to be from Ms Laila giving you permission and authority to obtain a passport for Rizwana and explaining her, Ms Laila's incapacity to physically attend the office. She had no such incapacity. Indeed, it would be a strange physical incapacity preventing her to attend one office but permitting her to attend another to obtain the 'statutory declaration'. She was of course completely unaware of any such document or the application for a passport that it referenced. She was presumably, one would think, aware of her own date of birth and that was entered incorrectly on this document that purported to be from her. I do not know whether you created that document yourself. Maybe someone did it for you. It really does not matter. You were the person who used it and I am satisfied beyond reasonable doubt that you knew it was completely false and had not been seen by your wife. You knew your wife was not consenting to any such application. Notably she said in her evidence that she had never seen that document and that she had not signed it. That document was dated 26 June. You were the person using it. Not only was her date of birth wrong. It also had handwritten additions not made by her adding the boy Farid's name to this document. Well, Farid had a passport. He did not need a replacement one. You were chasing down Farid's birth certificate on 1 July but not from the boy's mother. You were chasing it down from your own brother. The very same brother who has provided a character reference and who I am told has refused to provide any assistance to the police.
35On 23 July you reported your son's passport as lost. You made a demonstrably false report to the police spelling out where you had lost it and when. See Exhibit KK. You claimed that your wife had told you to do this. She did no such thing. She had never lost your sons passport. The notion of her agreeing to you taking her son overseas and yet her going through this business of telling you that the passport was lost and then giving you permission to obtain a replacement document for one which she possessed is completely absurd. It is not what happened. You even tried to distance yourself from the obvious falsity of the police report saying in your sworn evidence that you had not reported that you had lost the items, just that they had been lost. This departed from your interview account where you made it plain that you were reporting your loss of those documents but only doing so as your wife had told you to. Well the report you made to the police speaks for itself. It does not lie. You do, and frequently. You were representing to the police where and when Farid's passport had been lost by you.
36You had in your possession a false 'statutory declaration' purporting to be your wife's permission/authority for you to obtain a passport for your daughter. A 'statutory declaration' which goes hand in glove with your false report to the police in relation to Farid's passport and then the handwritten amendment to the 'statutory declaration'. Then you attended up in Canberra and falsely represented in the passport application that your son's passport was lost so you could obtain a replacement. See Exhibit II. You used amongst other things, the false statutory declaration which had been amended by hand sometime after it had been witnessed by the Justice of the Peace, Mr Anderson. He had not signed alongside any of the amendments, nor had anyone else and this was totally inconsistent with his practice. The document had been subsequently altered. You gave an account on oath of your wife having provided this document to you in relation to Rizwana and then her having sent on a fresh document for Farid. This is not what happened. Each application was made on 1 August and each had the same document with those amendments. See Exhibit II and JJ
37This notion of any agreement from your wife was absurd on so many levels. There was no written record or mention in any of the communications between you of any such agreement even though there were hundreds of WhatsApp messages exchanged between you. See Exhibit HH. Your sworn evidence was tailored to try to explain that absence. Though you had sought these things using WhatsApp messages, it just so happened that all of her alleged responses conveying agreement were oral, not written. This was plainly rejected by the jury.
38There was not the slightest mention to her or by her of any impending overseas trip to be taken by anyone. None. You had been speaking to one of your brothers about obtaining a copy of the boy's birth certificate. You had booked your own flight on 19 August to fly out on 29 August. That was a return flight. On the next day 20 August, you booked the children's flights leaving on the 29th. They were one way flights.
39On the day of the kidnap, your wife was pleased for you to have access with the children. She was happy that they would see you. You were their father. It was Rizwana's first birthday. She thought she was handing them over for a picnic. You had secretly videoed the handover no doubt thinking that that record would assist you. What a very strange thing to do, to film the handover made by a wife who was so willing and compliant and fully in agreement with all that you were doing. Well, that footage was quite damning. On your version your wife was willingly and knowingly surrendering up to you her two young children. Surrendering them for them to be taken to Pakistan to live forever. A pretty momentous event for any mother and for any child for that matter when you think about it. The footage of the handover which no doubt was secretly taken by you to try to shore up your position in advance of the crimes you knew you were committing was instead very much telling against you. See Exhibit G and H and the translation. There were no big goodbyes, no emotion, no tears, nothing from her or from you or from Farid to suggest any milestone event. There were some discussions about some grapes and some soup. That is of course because from your wife's perspective it was a routine handover for the children to spend part of the day with you and ending with the children coming back to her in a timely fashion. As I say, it was your daughters first birthday. You however took them knowing they would not return to their mother. She had no inkling of that and nor did the children.
40As I have said, you had already purchased tickets. One-way tickets for them and a return flight for yourself just over a month later on 5 October, though you ultimately returned alone on 30 October. She knew nothing about your plans. You travelled with virtually none of their belongings, no toys, virtually no clothes and no appropriate food. You ended up taking a carry-on bag for them to depart from this country forever. Not only that, your daughter was still being breastfed 5 or 6 times a day which rendered more absurd, if that be possible, the claim that this long haul flight was all by agreement. You left in the car with the children for what your wife believed was a pleasant day visit. Instead, you flew that afternoon with the children to Colombo and then on to Karachi.
41Your wife upon your not arriving back with the children in a timely manner, then sent a range of messages to you. She made enquires of others and only then learnt the truth. That you and the children had left the country. That was the first inkling that she had of it. I have no doubt about that and nor did the jury.
42Within a short time of learning from a friend that you had taken the children, she was calling her brother in Karachi in a distressed state.
43She was down at the police station at 6.30am the following day reporting your crimes. There were some instructive messages sent to you by her, one of them raising the fact that you had deprived your daughter of her mother's milk. See Exhibit HH. You did not respond but you received that message as you had copied it to an unknown woman see Exhibit GG. Within days, you were asking your brother to find some baby formula. See Exhibit EE. Embarking on this trip without any such provisions with a breastfed baby spoke pretty eloquently as to the stealthy nature of this undertaking. Your wife had taken no steps consistent with her children departing forever. You had taken lots of steps to bring about this result but you had been careful not to give her any hint of any of those steps or your plans.
44When interviewed by the police you gave this account of your wife's fulsome consent and agreement to the plan to take the children to live in Pakistan. You spoke of the money that had been given to your wife to secure this arrangement. No doubt you thought that you would be taken at your word and that the police would or could not look beyond these shores and further investigate your claim. Unfortunately for you, the police informant Detective Acting Sargent King was plainly a most diligent and competent police member, who regrettably for you, very thoroughly investigated your claims and obtained much evidence disproving them.
45Frankly, I have lost count of the number of different versions that you have given as to who was paid and by whom and the amount that they were paid. They are all false. I have not lost count though of the number of witnesses in any way supporting your account. There were none. No witnesses. No evidence of any transfers of money. Nothing. Just your word and an ever-shifting account.
46The Crown called a number of witnesses to rebut your account. That was why the three brothers from Pakistan were called. There were no money transfers. There was no payment. Ms Laila denied it and of course all of her conduct flew in the face of any such arrangement anyway as I have said, including all the messages she sent on 29 August and then fronting at the police station at 6:30am on 30 August and obtaining the recovery order in September of that year. Her three brothers denied receiving a cent or having any knowledge of any such arrangement. Well they were witnesses. There were no banking records placed into evidence by you. No detail of any actual transaction was put to any of them.
47At one point your counsel was intimating that he might try to rely on a transfer document to support the existence of these payments. This was to try to tie into some detail he had cross examined in from the informant about a mysterious email allegedly sent from a person in Pakistan promising evidence in this case. Evidence which never materialised. A mystery witness who never was heard from again once the informant asked them who they were and how they obtained her email address. An email by the way that might have been written by anyone, arriving very late in the piece at the time of the earlier trial in March. Then these questions asked of you about the transfer. It was not admissible which was probably quite lucky for even as it was being discussed in the absence of the jury, upon closer examination, the informant who had something of a mastery of the materials conveyed to counsel that that transfer seemingly related to a debt owed by you to the named recipient. There was a body of evidence which had for obvious reasons not been led against you, given the prejudicial effect of it, but which had been appropriately disclosed and which dealt with the sale of a number of cars with modified VIN numbers and that that transfer had on the face of it, nothing at all to do with any payment going to the complainant's family at all. Your counsel abandoned this suspect piece of 'evidence' quite appropriately. It was just another example of your endeavours to create a false narrative to support your own false narrative.
48Your plan was to secretly take the children. That is what you did and they were out of your wife's care for a year with a battle fought out in the Courts in Pakistan for her to get them back. She had obtained a recovery order by 10 September. She had begged and pleaded with you to return the children. See Exhibit F a video message sent to you by her. Your taking the children had nothing to do with any concern that you had for their physical state or resuming care of them. Indeed, I have no doubt at all that they were being entirely and appropriately cared for by their own mother. You had booked a return flight. This was an exercise in power, control and domination. You did it as you thought it was your right. Taking the children removed the substantial impediments arising from the intervention order that existed. You just did as you pleased and then you lied about it. Then you persisted in your ridiculous account in the witness box including your account that your wife travelled out with you and the children on 1 August in a taxi for you to go to Canberra to get the passports and in knowledge of the purpose of that trip and that she gave you your passport on that day as well as other certified documents. None of that was put to Ms Laila. None. Nor was it raised in your interview. Nor was it put to her that she had arranged to drive the children to the airport on 29 August but cancelled that arrangement on the morning. You swore that was so but that was not even mentioned in your police interview and it was not put to her. It would make more puzzling still the light packing by the children's mother. Of course this was not the arrangement at all and again, all of the WhatsApp messaging was completely silent as to any of this.
49Your account has been rejected by the jury.
50As I say, your wife had to physically return to Pakistan. Without doing so she could not get her children. This was easier said than done. There was large financial cost. She had to obtain an exemption under her protection visa as it prohibited her returning from that very country. She had to obtain temporary travel documents for herself and new travel documents for the children. There was a court case. The children were out of her care until 1 September 2020, so a day over a year after you had spirited them away.
51In the meantime, your appeal to the AAT in relation to the cancellation of your visa failed, that had failed on 8 August 2020. From that point the only basis of your remaining in this country has been the need to answer your bail and attend for these proceedings. I note that your criminal conduct occurred in a setting that from 12 March 2019, your visa had been cancelled. You had an expectation that you would be deported but wanted to take the children. That is exactly what you sought to achieve pending your appeal. It is then exactly what you then did.
52Now the prosecution submissions for the plea dated 8 August set out the procedural chronology as well. There were a number of adjournments connected up with the unavailability of Ms Laila who on occasion was in Pakistan. She only arrived back into this country in May 2021.
53So much then for my summary. I will sentence pursuant to the far more detailed sworn evidence of Ms Laila in relation to the incidents on 25 and 27 April. So the proven incidents, not the matters the subject of acquittals. Nor will I sentence on the basis of any other acts of violence be they in June 2016, May 2018 or the March 2019 event for which you were acquitted. I am however satisfied beyond reasonable doubt that you were a controlling and abusive individual. This was serious offending and unsurprisingly the impact has been large, and I turn to that impact now.
Impact
54There is an impact statement from Ms Laila. Mr Kennedy did not object to it. That may be so, but I will act only on the admissible portions of it. I have said already I will not act on the basis of any actual physical violence other than that the subject of the charges before me so the impact statement must be read in that light. When it refers to 2016 or 2018 events or matters for which you were acquitted plainly, I put those matters aside. Nor can I act on accounts of systematic physical abuse. The physical impacts are only those flowing from the incidents that I am dealing with so again I must adopt a cautious attitude. But I have no doubt as I have said, that you were controlling and emotionally abusive.
55The fact is I would hardly need an impact statement to appreciate the impact upon a mother of discovering that her two children had been spirited across the globe. One of those children was 12 months old and breastfed, the other was a touch under three. We can see her emotional state in one of the videos exhibited in this case. She did not get them back into her care for over a year. They were out of her care, the primary caregiver, for over a year. Getting them back was far from simple. It was a stressful episode in her life, that is for sure.
56I take into account the impact as I am required to here. There was obviously impact on her. Obviously there would be impact upon the children. Everything they knew from that day altered, when they left this country having been spirited away by their father. So I take into account the impact.
In mitigation
57Mr Kennedy appeared for you both upon the trial and the plea. He had filed a 2‑page written defence plea submission dated 9 August 2023. There was a bundle of educational documents (Exhibit 2) as well as some personal references from friends and from your brother and a cousin and a brief report from your physiotherapist (Exhibit 3) .
58Mr Kennedy provided some brief details as to your personal and family background. He took me to your educational and employment history in broad detail. He made some submissions as to the sentencing purposes in play here. This plea had some unconventional aspects to it including some curious submissions made as to the effect of your not being charged under s63 of the Crimes Act. The argument was that you should have been charged under that provision as you had a complete defence to it and hence somehow, and for some reason, that maximum penalty for an offence that you could never have been prosecuted for, ought have some role to play in my task. I do not think I am doing any injustice to the argument, one that completely ignored the principles stated in the High Court case of Elias[7] and also completely misinterpreted the earlier line of authority in any event. (Liang’s[8] case and McEachran[9]) When I asked Mr Kennedy if Elias' case provided any support at all for what he was submitting, he said ‘not yet’. That case was decided in mid-2013. Mr Kennedy's submission that you could not be charged with the s63 provision placed you in a totally different position from cases where the prosecution agency had a choice and elected to proceed on the more serious charge. So a setting where an election was made to deal with someone under a more punitive provision and in this way exposing someone to a harsher penalty rather than a lesser punitive regime in force. Charging someone with an offence that as a matter of law could not be proven would be a pretty extraordinary prosecutorial decision which, at the very least, would be met with a permanent stay application and possibly even by a prosecution of that decision maker for misconduct in public office not to mention the laying of a civil suit. Nonetheless Mr Kennedy said that that was what was required here. The secondary submission was that because s 63 was only 1 page removed from 63A that this was somehow relevant to my task. This was a novel submission and as I said on the plea if that be so, why not look to s64 (bigamy) for some guidance as it was also only 1 page removed. These submissions were really quite odd. At one point Mr Kennedy read out almost the entire portion of s63 and submitted to me that it was identical to s63A. I said to him words to the effect ‘other than a number of words including those dealing with the advantage.’ He said ‘other than a few more little words’.
[7] Elias v The Queen [2013] HCA 31; 248 CLR 483
[8] R v Liang and Li (1995) 82 A.Crim.R
[9] R v McEachran [2006] VSCA 290; 15 VR 615
59At one point it came perilously close to a no case or stay application and I reminded Mr Kennedy that no such application had been made in this case at any stage.
60More extraordinary still was his submission to me that aspects of premeditation planning and calculation were in no way relevant to my consideration of the seriousness of the instances of kidnapping here. He commenced this strange argument by stating that the seriousness was not something that could be taken into account if you should have been charged under another section. Well that would not be so even if there was any merit in the argument that you should have been charged under a different provision, which of course there was not. Whatever provision the conduct was charged under, the court would still be required to assess the nature and the gravity of the conduct.
61These general submissions that the degree of planning and premeditation were irrelevant were really quite startling. Mr Kennedy placed before me an example which he believed illustrated and drove home his point. I did not find it at all persuasive. I do not yet have a transcript of the plea but I have watched the tape back and I did that to ensure that I was not somehow misstating or doing some injustice to these arguments. I am really not. I will do my best to adequately set out the precise argument. He said at around 11:43am on the day of the plea the following: ‘Suppose you have two people, doing 2 different things in a room. One’s got a bat and he hits a ball. Simple. The other one has lined up a whole lot of mousetraps with ping pong balls and things going around on rails and it finally hits a ball too. Do you say that warrants more opprobrium than the single bat example? I don’t see why just because it is complex’.
62I confess I was and remain somewhat nonplussed. At the time, it was hard to know how to answer that question, though I am still not sure what issue it really went to. I was being asked to reflect on these examples and to make judgements as to their level of complexity for some reason. I do not really know why. As I sat there, neither example seemed particularly bad or serious to me. Or even at all bad or serious. Neither of those men was committing a crime, I suppose would be my first observation. Opprobrium is defined as the disgrace or reproach incurred by conduct considered to be shameful. Neither of those men would be deserving of any opprobrium at all. Neither is worse than the other or better than the other for that matter, and neither would be deserving of any reproach at all. They are each examples of perfectly innocent, harmless though possibly foolish activities, the elaborate mousetrap example perhaps being more foolish than the other. So neither really is 'more serious' or '‘worse' than the other.
63In so far as these scenarios were being offered up to illustrate the point that premeditation and effort and the level of planning was of no moment in the Court's assessment of the nature and the gravity of an offence, I choose instead to act in accordance with what are well-established legal principles. Of course, these things are relevant. Indeed, I am required by law to consider the nature and gravity of the offence and that task will not be aided by considering and contrasting the conduct of the man with the bat and the ball and the odd fellow setting up the mousetrap, ping pong balls and rails in that same room. It was really one of the oddest submissions that I have heard in 13 years sitting as a judge in this Court. It really should not have been made by any counsel, though I do not hold it against you obviously enough. You did not make the submission, your counsel did. It was not helpful. I simply reject that submission.
64When I asked Mr Kennedy how I should have regard to the strange last paragraph of Ms Gul[10]'s character reference, he said, I thought quite cryptically that it was ‘a bit like the Montagues and the Capulets’. I said that I did not think it really was and I still do not.
[10] A pseudonum,
65He emphasized in the course of the plea your love for your children and the fact that you would now not see them. He kept stating that all you were doing was taking your children. As I remarked, well they were not just your children. They were Ms Laila's as well and she and they, the children, were the protected persons under this intervention order. That order prohibited any approach. Mr Kennedy emphasized your victim's conduct in looking at your phone and looking through your phone and searching through it and stated how that would drive a person to distraction and how it was an aggravating feature, not of your crime mind, but of her conduct. It was as though your wife was to blame for your behaviour, behaviour which you had yourself denied. It was all pretty perverse.
66The fact is there are few matters in mitigation in this case. You had run a trial, that was your right, but having exercised that right, you do not have at your disposal any remorse or any of the sizeable benefits that flow to one who has pleaded guilty, especially amidst the global pandemic.
67In the course of the plea conducted on your behalf, your counsel relied principally upon the following matters in mitigation:
·The issues posed to you by a leg injury; he did not state it directly despite my asking the direct question of him but I will imply from what he said that he was arguing there was some increased prison burden arising from that injury;
·The fact that you would inevitably be deported and would be deprived of ongoing contact with your children;
·He also relied upon the relationship between s63 and s63 A and how that should be brought to bear. It was totally misconceived. I will not further deal with that submission other than when I now deal with the s5(2H)(e) argument that he placed before me for some unknown reason.
68I have already commented on some strange aspects of the plea in mitigation that was conducted. Another was the contention that substantial and compelling circumstances which were both exceptional and rare were established in this case. I asked him what they were. He told me that you should have been charged with a s63 child stealing offence for which you had a complete defence. It was that which was the feature which constituted substantial and compelling circumstances which are exceptional and rare. As he put it, this 'arbitrary use of justice' enlivened those provisions. What would be said of a prosecution agency deliberately charging someone with an offence which they knew could not be proved? How arbitrary would that misuse be I wonder and how improper and oppressive would such a course be viewed if brought to the attention of any Court? The fact is you had not been so charged. As I understood his earlier argument you could not have been sensibly charged with that offence as you had a complete defence and hence you could never have been amenable to that less punitive sentencing regime. You had been charged under s63A and found guilty of two such offences. That fact can have no role at all in making any judgement about the existence of substantial and compelling circumstances which are exceptional and rare. You have no burden under that provision but it simply does not arise here on the materials before me.
69Further, such an argument is generally mounted to try to avoid a prison term and engage at least the possibility of a combination type sentence. In the absence of an exception under s5(2H), no combination type sentence is open as kidnapping is a Category 2 offence. Your counsel was not submitting that prison could be avoided here. Nor was he submitting that there could be any sensible consideration of any combination type sentence. It was hard to know then why there was even any reference to that provision. Your visa had been cancelled many moons ago and that event had no relationship to the charges or the likely or ultimate sentence. As I have said, your student visa was cancelled in March 2019, you appealed to the AAT and you lost that appeal in 2020. You have no ability to be released into the community and that has nothing to do with anything I do by way of sentence. Instead, he was arguing for a modest sentence. He seemed at one point to abandon to some extent the submission in the written document that 297 days, which was the period of pre-sentence detention, was sufficient on its own. Plainly it was not. He was arguing against a crushing sentence.
Prosecution
70The prosecutor Ms James had prepared the detailed sentencing submissions I referred to earlier (marked as Exhibit A on the Plea). I see no need to work my way through every aspect of them. Plainly this was serious offending. She emphasized the impact. She argued that it was not a mitigatory feature that Ms Laila had permitted you to see her and the children. That she was not consenting to acts of family violence or the removal of the children. All these offences of violence occurred she submitted in the currency of an order protecting your wife. So too the kidnapping. The Crown submitted that the conduct endangering was a serious example of the offence given the loss of consciousness occasioned. The children were present for the events of 27 April.
71I was told about an outstanding matter relating to a refusal to provide an access code to your phone on 21 January 2021 when the police had executed a search warrant. I was also told about a sequence of events with later orders protecting Ms Laila and your endeavours to have welfare checks conducted and attempts to obtain an intervention order in your own favour. See paragraphs [31]-[36] of the submissions. I will not have any regard to the circumstances leading to the police obtaining the warrant or your effort to obtain the order or efforts to have the police conduct welfare checks. Nor will I have any regard to the outstanding matter. It is outstanding.
72As to the deportation submission, the Crown reminded me of the chronology of the cancellation of your visa. This was not one of those automatic cancellation cases owing to the sentence exceeding a period of 12 months. Your visa has been cancelled. Ms James queried the usefulness of the reference from your brother in strong terms, a person whom they said was seemingly to some extent implicated in the kidnap or at least involved in getting documentation and then the baby formula. The Crown argued that whatever was said about your love for the children had to be seen in light of your decision to take the two children without any warning to them or their mother who was their primary caregiver. They were taken on a long‑haul flight. Rizwana was a breastfed 12-month-old. Their welfare the Crown said was not in the least your priority here. They submitted that this was an exercise of power and control, that you deprived them, the children, of their mother, deprived their mother of the children and deposited the children back in Pakistan and came back to Australia. They submitted that from the way the plea had been conducted that you were still, to some extent, blaming Ms Laila and shifting responsibility for your own behaviour
Background
73I will turn briefly to your background. Not that much detail was placed before me. You were born on 15 December 1990. You are now 32 years of age. You were raised in Pakistan with both parents, and I was told of one brother and a sister. Your parents are still both alive. They have some health issues with their advancing age. You were educated I was told in a Government school and then attended university in Karachi. You came to Australia in 2012, on a student visa. Again there are some documents speaking of some of the study you engaged in in this country and in Pakistan for that matter. I was told that you met Zareen Laila about three years prior to coming to Australia and that you married in 2014. Other records seem to suggest it was 2016. Nothing hangs on that. Farid was born in 2016 and your wife returned to Pakistan to have him. Your counsel told me that this was a source of some disharmony. He also raised issues of the schism between your families and suspicions harboured by your family against her family. I am not going to act on that sort of matter. You are the source of that information and you just cannot be relied upon to tell anything resembling the truth.
74I do accept that in this country you were the major breadwinner and worked hard to support your family. You spoke often of that in the course of your evidence, as though it was a strange thing for a father to support his children. That is often enough what fathers do when they have young children. Your wife had Farid and then Rizwana so you were working to support the family. It was hardly an odd decision. You did a number of jobs. From pretty early on, the marriage had issues. As I have said already, you were undoubtedly a controlling force. You wanted to return to Pakistan but there was the slight issue of convincing your wife to accompany you and she would not. Hence this offending the subject of Charges 11 and 12. You spent over 280 days in custody upon your arrest when you came back to Australia in late October 2019. You were bailed after that period of time but went back into custody after verdict. I was told at the time of the plea that you had had no visitors, I do not know why that would be. Your brother is in this country and so too the authors of the many references. Perhaps it related just to the recency of your return to custody.
75Mr Kennedy did tell me of an injury to your leg sustained in March 2022 for which you underwent surgery. You have had some ongoing issues including pain and you have, until my remand of you, been attending weekly for hydrotherapy and physiotherapy. I am prepared to find that this injury, it's ongoing impact and the worry for you in relation to it represents some increased burden of imprisonment. I do take that into account in mitigation.
76I have mentioned the other references that are marked as part of that same exhibit, Exhibit 3. I have significant reservations in acting on your brother's reference. He had some connection to some of these unfortunate arrangements in this sense: He was being asked by you to chase down a birth certificate in July 2019 and then some infant formula within days of your leaving these shores. He had an understanding that you were leaving. I was told that he had refused to make a statement about any of his actions and I was told also he had to be given some s128 advice. His description of your empathy, honesty, integrity and commitment must be viewed as against your own conduct. Conduct that demonstrated a complete lack of integrity and poor insight into the impact of your crimes upon your immediate family. Nor am I prepared to act on Ms Gul's reference to any great degree. The final paragraph of her reference is a strange one indeed. These people, the various authors of the references, when speaking of the offending have only your account to go on, an account which presumably mirrored the account you gave to the jury, one that has been completely rejected. The references are not of great assistance to me. I do accept though that some are speaking of historical associations. These are people who have known you, some of them for all of your life. I do accept there are qualities that they have seen. You are I am sure far more than just the person who has committed these serious crimes. They have spoken of some qualities that you have. It is just that they have not been on display in this saga that is for sure. Either in Court as I observed you give evidence or in your actions, the actions giving rise to these various charges.
77Mr Kennedy told me that you wish to return to Pakistan. Unlike some who are resistant to deportation, you are not and as I have said, deportation does not arise courtesy of my sentence. Your visa was cancelled in 2019, your appeal was lost in 2020. You are really only still in Australia to answer these charges. So the risk of deportation as spelt out in the Guden[11] line of cases is not being relied upon as increasing your prison burden. Nor the loss of opportunity to permanently settle in this country. You were judged not to be a legitimate student and were bound for Pakistan prior even to the commission of these offences. The failed appeal confirmed that course. So this does not add to your burden at all. You wish to return home. The sooner the better. The only aspect of deportation relied upon by Mr Kennedy was the prospect of there being some hiatus prior to deportation where you may be held in immigration detention. I do not ignore that, but it is not a large matter in my task and it is difficult to envisage a lengthy period owing to your strong desire to return to your homeland.
[11] Guden v The Queen [2010] VSCA 196
78I do accept though that one consequence of your offending and your ultimate deportation will be the loss of opportunity to have a role in your children's lives. Whilst you look forward to the day you leave this country, of course you will miss your children. I do not ignore that fact but it has to be tempered by the steps that you took to spirit them out of the country. Your wife now has a protection visa and she lives in an undisclosed location. You would not be having contact with your children even if remaining in the country. There are current intervention orders in place. Still I accept that it will not be easy to lose contact with your children and I take that into account in so far as I am able to.
Rehabilitation
79I turn then to your prospects of rehabilitation. Also to your risk of reoffending. Well your risk of reoffending in person in relation to your ex-wife and in relation to Farid and Rizwana is almost non-existent. You just will not see them. You do not and will not know where they live and you will be living in prison. Then you will be deported. You will not be able to reoffend physically against them again. However, you are young enough to want to form intimate relationships in the future and there is plainly a risk of family violence at your hands given all that I know of your attitude to your past victim and to women. You have, for whatever reason, a sense of entitlement. You are completely remorseless in relation to these crimes. You still assert to all and sundry that you have done nothing wrong at all.
80You are it would seem a reasonably intelligent man. You have no prior convictions, and you now call in aid your past good character and I take that into account. There is the subsequent matter but that has not yet been dealt with and for that reason I put that aside altogether. You will spend some years in prison and your future prospects upon release will no doubt take shape in a distant country. I act on some aspects of the character references, those aspects that are disconnected from views being expressed by the authors as to the nature of your past relationship with your wife or their conclusions or opinions about the offending alleged.
81I believe that the sentences that I will soon impose will have a deterrent impact upon you. I am prepared to find that you have reasonable prospects of rehabilitation. As I say, they will take shape in another country.
The Offences
82I have already set out some detail of the offences. It was serious offending to assault your wife in the way that you did on 25 and 27 April 2019. You were acquitted of intentionally causing injury but found guilty of recklessly causing injury in relation to each event. So that is the state of mind that I am dealing with. You breached the intervention orders intending to cause harm or fear for safety. The case law is replete with statements from our highest courts as to the seriousness of family violence and the need to drive home the importance of abiding by such orders and the serious consequences of breaching orders such as these. The prosecution submissions descend to the detail of some of those cases and some of the principles stated within. They are well known and they obviously apply here. Your physical assaults embraced by the recklessly causing injury charges were unpleasant, obviously so, though not falling anywhere near the highest level in terms of mechanism or effect. By that I mean there were no weapons being employed, nor even actual punches as I understand it. It involved really a monstering of your wife. An intervention order existed though I must take care in terms of avoiding double punishment given the separate breach offence laid on each of those occasions. Your victim though was protected by that order and that is the person that you assaulted. The recklessly causing injury on 27 April took place in the presence of your own children who were upset by what they saw. Your ex-wife required some medical attention for each instance of recklessly causing injury.
83The conduct endangering life was a serious offence indeed. I am satisfied beyond reasonable doubt that Ms Laila lost consciousness. Your counsel submitted that we could not know what period she was unconscious for as though that was somehow a matter in mitigation. To throttle or manually strangle your wife to such an extent that she harboured the bruise over the carotid area and lapsed into unconsciousness spells out the seriousness of this instance of that offence. It is an endangerment offence. It represents a serious example of conduct endangering life.
84As to the kidnapping, well it was not spontaneous offending. It was very calculated, premeditated and cruel. I have set out earlier in my reasons many of the details spelling out the degree of planning, calculation and secrecy that you engaged in. I will not repeat it all now. Some of the references speak of your exceptional integrity, your compassion, empathy, kindness and unwavering moral compass. Well all those things were conspicuously absent as you took the children in the way that you did. It was a terrible thing to do, both to your wife and to the children. The kidnap in each case represents a serious example of the offence. That is so notwithstanding that I do acknowledge it is not the usual type of conduct picked up by this provision. The children were just that. They were children. One just under 3. One a 12-month-old baby who was breastfed. The level of planning and cunning involved in it is highly relevant notwithstanding your counsel's odd submissions to the contrary. These steps that you took, the degree of planning and the premeditation are matters of significant aggravation. It was in my judgment, I have mentioned this earlier, an exercise in possession and control, almost as though of property. You took them because you could and you did not care who you hurt in the taking, either them or their mother. It was all the same to you. This was serious stuff indeed and in the context of an order protecting them.
85Sometimes a trial can be run and there can still be a finding of remorse. I have reached that view, for instance in some instances of dangerous driving causing death or even culpable driving causing death. In this case there is not one iota of remorse. You are a remorseless individual. It is not just a matter of not being satisfied on balance that there is any remorse. Having observed the way this case has been conducted, having observed your evidence, I am satisfied beyond reasonable doubt that you do not harbour any remorse at all.
Purposes
86I have to consider a number of purposes of sentencing.
87I must pay regard to your prospects of rehabilitation. I have said already, you have reasonable prospects.
88I am required to punish you for your crimes, though I must do that justly and proportionately. Punishment is an important purpose of sentencing in this case.
89I must also denounce your conduct. This is an important purpose of sentencing here. This was serious offending. The kidnap offences were especially cruel. The violence inflicted upon your then wife in the physical assaults was completely unacceptable. It will not be tolerated. It must be roundly denounced.
90I must also give some weight to specific deterrence. This concept relates to the need to deter you, or dissuade you, from offending in the future. It can be moderated owing to the absence of past offending and the relatively low risk of reoffending in this way in the future. It still has some relevance to my task. I must deter you and that is still something that I must adequately recognise.
91Community protection must also be given appropriate weight. Again though, there can be some moderation owing to your age, your lack of criminal history and the reality of your position. Entering a lengthy prison term and with deportation awaiting and no risks of reoffending in person against the current victims.
92General deterrence is however an important purpose of sentencing in this case in relation to each charge. General deterrence looms large in my task. The community is sick of family violence. Sick of those who breach orders designed to protect family members. Sick of crimes of violence targeting a female who is so protected. Well here it went a step further with the kidnaps. I must try to deter others from doing what you have done. I must send a clear message that conduct such as yours will likely be met with a sizeable prison terms.
93I must have regard to the maximum penalties as well. The 5-year maximum penalty for s 63 has no role to play in my task at all. None. I am dealing with kidnap with a 25 year maximum term. I have rejected each of the submissions made by your counsel on that score. I must also take into account the impact and quite predictably, it has not been minor here by any stretch of the imagination.
Current Sentencing Practice
94I must and I do take into account current sentencing practices. I have looked at the Sentencing Advisory Council Snapshot No. 266 for recklessly causing injury. There are no formal Sentencing Advisory Council snapshots for the other crimes. I have looked instead at the online statistics for kidnap, for conduct endangering life and for breach of intervention orders intending to cause harm or fear for safety. As I have said, kidnap has a 25-year maximum penalty. There are very few examples reflected in that data. Sometimes only 4 or 5 instances in a given year. So there are only a total of 32 charges dealt with by a court in the 5 years from July 2016 through to June 2021. One would expect that the sentences for kidnap represented in that data would relate to varying levels of offence seriousness, from the least serious to more serious examples of the offence, but the data gives no real clues on that score. If that be so, it would be surprising that the data fails to disclose an even spread of sentences suggesting instead that the highest sentences imposed fall below a third of the offence maximum penalty. That strikes me as being quite unusual. It is an inherently serious offence, with a 25‑year maximum term provided for. I cannot see how a serious example of the offence is punished at that sort of level. It is also likely that a large number of past sentences reflected in that data pertain to sentencing after a guilty plea. Well the examples that I am dealing with are serious instances of an inherently serious offence punishable by that 25-year maximum term. They do not fit the usual factual setting for this offence, for instance of a drug or underworld or even a lawful debt and the taking of someone with a demand for payment of some debt or some ransom. Your offences though have an unusually high level of premeditation for this crime. I do take into account current sentencing practices. They are not a controlling factor and in fact they are only one of a large range of matters which I must take into account.
95I have looked at the various case collections held on the Judicial College of Victoria sentencing cases portal for some of these crimes.
96Ultimately though, no amount of looking at statistics or other sentencing outcomes in other cases will ever provide the answer to the correct exercise of my sentencing discretion in your case. Each case is very different. I must exercise my discretion in your case
97Statistics have inherent limitations. They will never drive my task. They tell me next to nothing about the finer detail of those crimes represented in the data. Nothing about the matters in mitigation or in aggravation. Nothing about the offender. They tell me nothing about all the things which determined the actual sentence that was imposed.
Totality
98I take into account the principle of totality of sentence. I have engaged in a last look at the sentences imposed by the court and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is commensurate with your overall criminality. Your overall criminality was very high indeed especially for the kidnapping offences.
99To comply with the principle of totality, what I have to then do is determine an appropriate sentence for each of these individual charges, taking the applicable sentencing considerations into account, then I must designate the highest term and nominate that as the base sentence. I must determine then the extent to which there should be cumulation regarding the other sentences imposed. Then there is a critical third step. It is the taking of a 'last look' I have already mentioned. I have to 'stand back' and to consider, in light of the principle of totality, what is an appropriate overall total effective sentence in this case.
100If applying the first two steps produces a total effective sentence that infringes totality, what I then must do is moderate the extent of cumulation to ensure that the total effective sentence complies with this principle.
101Well here I have offending on three distinct dates. Different offending with different elements and impacts obviously. Some offending occurred on the same date as other offending so there is on occasion a temporal link but there can be and is no claim for total concurrency here. Plainly there must be a level of cumulation.
102Sending a person to prison is always a disposition of last resort. Though your counsel floated a submission as to the application of s5(2H)(e), there was nothing in that submission and seemingly no purpose in making the submission as prison was conceded to be the only disposition available to the Court. You have already served a period and your counsel was not urging any consideration of a community corrections order. So it was and remains something of a mystery as to why s5(2H)(e) featured in despatches at all and the way it was said to be enlivened was because you had not been charged with an offence that you had a complete defence to under s 63. I have rejected that very strange submission. The suggestion of time served being adequate contained within the written submission was as strange as many of the other matters raised on this plea. I reject that submission altogether.
Sentence
103I move now then to pass a number of individual sentences. Do not just add them all up. That is not the way it works. I will have to make orders directing the extent to which one sentence is served consecutively upon others, so you really will not understand the full effect of these orders until I get to the end of this portion of my sentence and when I get to the end of it I will then explain what it all means. I will explain the total effective sentence at the end.
104Before I do that though, based on what I was told the other day, I make the pre‑sentence detention figure as 307 days.
105Stand up Mr Shams.
106On Charge 2 that is the charge of contravention of an order intending to cause harm I convict and sentence you to 8 months' imprisonment.
107On Charge 4, recklessly causing injury I convict and sentence you also to 8 months' imprisonment.
108On Charge 5 contravention of an order intending to cause harm I convict and sentence you to 8 months' imprisonment.
109On Charge 7, recklessly causing injury I convict and sentence you to 10 months' imprisonment
110On Charge 8 which is the charge of conduct endangering life I convict and sentence you to 2 years 4 months' imprisonment.
111On Charge 10 contravention of an order intending to cause harm, it was a full order by that point, I convict and sentence you to 10 months' imprisonment.
112On Charge 11 that is the charge of kidnap of Rizwana I convict and sentence you to 7 years' imprisonment
113So too on Charge 12 the kidnap of Farid I convict and sentence you to 7 years' imprisonment
114I will make the 7 years imposed on Charge 11 the base sentence.
115I direct that
·2 years of the sentence imposed on Charge 12
·2 months of the sentences imposed on each of Charges 2, 5 and 10
·3 months of each of the sentences imposed on Charges 4 and 7, and
·6 months of the sentence imposed on Charge 8
Is to be served cumulatively upon the base sentence and upon each other.
116It is my intention then that there be that additional 3 ½ years cumulation on top of the 7-year base sentence imposed on Charge 11.
Total Effective Sentence
117These orders result in a total effective sentence of 10 ½ years' imprisonment.
Non-Parole Period
118I am required by law to fix a non-parole period given the dimensions of that sentence, other than in a few rare exceptions set out in the Sentencing Act 1991 which do not apply in this instance. I am not permitted to consider whether or not you will be released on parole. That will be entirely in the hands of the Adult Parole Board. I direct that you serve a period of 7 ½ years before becoming eligible for release on parole.
Section 18
119You have spent 307 days in custody by way of pre-sentence detention and that period is declared pursuant to the provisions of s18 of the Sentencing Act.
120Just have a seat then for a moment. Let me just see if there are any other matters that I need to deal with. Any other matters from your perspective, Ms James?
121MS JAMES: No, Your Honour
122HIS HONOUR: From your perspective, Ms Valos?
123MS VALOS: No, Your Honour.
124HIS HONOUR: No, all right. Well look I am assuming you will go down and see him downstairs, will you?
125MS VALOS: Yes, I will, Your Honour.
126HIS HONOUR: Yes, okay, all right. Just remain seated then, Mr Shams. Ms Valos will come down and see you downstairs and no doubt either she or other people will speak to you in terms of your rights in relation to what's occurred in this case including the sentence that I have just imposed. My practice is to revise these reasons once I get them back from VGRS. I normally do it pretty swiftly but it will take a bit of time to get them back, they're pretty lengthy remarks. Once they've been returned I will anonymise them in the circumstances of this case, given that it involves family violence. So they'll be anonymised and once they've been revised and anonymised I will release them to the parties, but it will take a little bit of time. That completes the matter. If Mr Shams can be removed then please.
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