Jan v Director of Public Prosecutions (Cth)

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0151

SAKINA MUHAMMAD JAN	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)	Respondent

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JUDGES:	EMERTON P, TAYLOR and BOYCE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	3 December 2024
DATE OF JUDGMENT:	21 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 43
JUDGMENT APPEALED FROM:	[2024] VCC 1122 (Dalziel J)

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CRIMINAL LAW – Appeal – Leave to appeal against sentence – Commonwealth offence of causing a person to enter into a forced marriage contrary to s 270.7B(1) of Criminal Code (Cth) – Applicant coerced daughter into marriage – Daughter murdered by husband – Applicant influenced by cultural practice – Whether s 16A(2A) of Crimes Act 1914 precluded a finding of reduced moral culpability – Whether sentence manifestly excessive – Application for leave to appeal against sentence refused.

R v Wunungmurra (2009) 231 FLR 180; R v Way (2004) 60 NSWLR 168; Muldrock v The Queen (2011) 244 CLR 120; Brown v The Queen (2019) 59 VR 462, considered.

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Counsel
Applicant:		Mr P Tehan KC with Ms J Taylor
Respondent:		Mr D Renton SC with Ms S Tatas
Solicitors
Applicant:	Slades & Parsons
Respondent:	Mr M de Crespigny, Acting Commonwealth Solicitor for Public Prosecutions

EMERTON P
TAYLOR JA:

Introduction and overview

On 22 May 2024 the applicant was convicted by a jury of one charge of causing a person to enter into a forced marriage. On 29 July 2024 the applicant was sentenced[1] as follows:
[1]CDPP v Jan [2024] VCC 1122 (‘Reasons’).

Charge	Offence	Max Penalty	Sentence	Cumulation
1	Causing a person to enter into a forced marriage[2]	7 years’ imprisonment	3 years’ imprisonment, to be released on own recognisance after 12 months	–
Total Effective Sentence (Cth):		3 years’ imprisonment, to be released on own recognisance after 12 months
Pre-sentence Detention Declared:		N/A
Section 6AAA Statement:		N/A
Other Relevant Orders: 1. The accused to be released on her own recognizance of $2500 after having served 12 months in custody on the condition that she be of good behaviour for 24 months.

[2]Contrary to s 270.7B(1) of the Criminal Code (Cth).

The applicant now seeks leave to appeal against her sentence.
The proposed grounds of appeal against sentence are:
(1)The judge erred in finding that s 16A(2A) Crimes Act 1914 (Cth)[3] prevented the judge from taking into account in mitigation of penalty and in reducing the applicant’s moral responsibility ‘… your personal history and that you were acting in what you thought were your daughter’s best interests’.
[3](‘Crimes Act’).
(2)The judge erred in failing to consider the murder of Ruqia Haidari as a form of extra-curial punishment.
(3)The judge erred in finding that the prosecutor’s characterisation of this instance of the offence of forced marriage was mid-range.
(4)The judge erred in finding that ‘[h]aving regard to the maximum penalty, the nature and gravity of the offence, the strong need for general deterrence, and your circumstances, I consider that any sentence other than imprisonment, with a period of time actually to service (sic), would be manifestly inadequate’.
(5)The sentence is manifestly excessive.
(6)The judge erred in failing to have regard to the exercise of the discretion of mercy.
(7)The judge erred in failing to take into account, pursuant to s 16A(2)(p) Crimes Act, the probable effect the sentence of imprisonment will have upon the applicant’s family and dependents.
(8)The factual basis on which the judge sentenced the applicant was wrong. Ruqia Haidari was not aged 15 at the time of a previous marriage but was aged 17.
(9)The Court should receive the following new evidence and act upon it to avoid a miscarriage of justice: [4]
(i)The Affidavits of Muhammed Taqi Haidari dated 4 September 2024 and 9 September 2024;
(ii)The Affidavit of Alijan Noori dated 9 September 2024;
(iii)The Affidavit of Ms Leah Perkins dated 13 November 2024; and
(iv)The Report of Associate Professor Danny Sullivan dated 30 September 2024.
[4]This proposed ground of appeal was filed by the applicant’s counsel during the hearing. See [127] below (Boyce JA).
Proposed grounds 2, 3, 4, and 6 were argued as particulars of ground 5. We have approached those grounds on that basis. We have had the advantage of reading in draft the judgement of Boyce JA. For the reasons his Honour expresses, we agree that propose ground 7 cannot succeed[5] and that there is no need to consider proposed ground 8.[6] It will be observed that proposed ground 9 is not a ground of appeal, but an application to rely upon new evidence. For the reasons given by Boyce JA, we would also refuse leave to rely on this new evidence in the appeal.
[5]See [131]–[134] below (Boyce JA).
[6]See [132] below (Boyce JA).
It follows that only grounds 1 and 5 stand to be considered, albeit that the matters raised by grounds 2, 3, 4 and 6 will be considered as particulars of ground 5.
We have reached a different conclusion from Boyce JA with respect to grounds 1 and 5. For the reasons that follow, we would refuse the application for leave to appeal.

Factual background

On 21 August 2019, the applicant’s daughter, Ruqia Haidari, was married to Mohammad Ali Halimi. Ms Haidari did not freely and fully consent to the marriage. The applicant’s conduct caused Ms Haidari to enter into the forced marriage.
The applicant is, and Ms Haidari was, part of Victoria’s Afghan Hazara community in Shepparton. Arranged marriages are common in Hazara culture. Expert evidence called at the trial established that under Islamic law couples enter into a Nikah, which is considered a marriage. A Nikah can be temporary or permanent. A temporary Nikah is entered into so that a couple can come to know each other. It can be made permanent by a permanent Nikah ceremony. The period between entering into a Nikah and the Nikah ceremony is called ‘namsat’, and is sometimes referred to as a period of engagement. A Nikah is accompanied by a written document setting out the conditions of the marriage, and the husband provides money to the bride’s family (‘mehrieh’). When a woman is divorced she is considered ‘bewa’. This means she has lost some of the value she had before her marriage. This devaluation may reflect poorly on the family of the divorced woman as, in Hazara culture, a woman’s reputation is important.
Prior to the marriage relevant to the current offence, Ms Haidari was previously married under a temporary Nikah. This marriage lasted for approximately two years and ended in divorce. Consequently, Ms Haidari was considered bewa, although she was glad that the Nikah had ended as she was excited to finish school, continue her studies and get a job.
Shukria Muqadas was a member of the Hazara community and a family friend of the applicant. Ms Muqadas had been asked by her former neighbour in Pakistan to help find the neighbour’s brother, Mohammad Ali Halimi, a wife. Mr Halimi lived in Perth. After Ms Muqadas had raised with Ms Haidari several times the idea of marrying Mr Halimi, Ms Haidari told Ms Muqadas to discuss it with the applicant.
On 31 May 2019, Mr Halimi visited Shepparton to meet with Ms Haidari and the applicant’s family. Following this initial meeting, Ms Haidari was not involved in family discussions about her prospective marriage to Mr Halimi, although she did request time to make a decision about the marriage. On 2 June 2019, Mr Halimi returned to Perth. About a week later, the applicant told Ms Muqadas that the family had agreed that Ms Haidari’s marriage to Mr Halimi could proceed.
During a driving lesson on 2 June 2019, Ms Haidari told her instructor that she was going to be married but this was not something that she wanted. The instructor advised Ms Haidari that it was illegal to be forced into marriage and asked whether she would like him to assist her, but Ms Haidari refused.
Mr Halimi returned to Shepparton on 15 June 2019 and entered into a temporary Nikah with Ms Haidari the following night. Ms Haidari had requested that the Nikah be temporary. Ms Haidari and Mr Halimi signed a one-year agreement. This agreement allowed Ms Haidari to study, work and divorce from Mr Halimi and included a $14,000 mehrieh to be paid by Mr Halimi to the applicant. Mr Halimi returned to Perth on 19 June 2019.
On 24 June 2019, Ms Haidari started driving lessons with a different instructor. She had four lessons with this instructor between June and September 2019. During these lessons, Ms Haidari told her instructor about the ‘engagement’ and said that she did not want to marry Mr Halimi; she said that he was too old and that they had nothing in common. Ms Haidari became upset when discussing this and told her instructor that it would be bad for her family’s standing in the community if she did not go through with the marriage. She said that her family would have to leave Shepparton.
Around this time, a Hazara community member, Ms Haydar Big, approached Ms Haidari after learning that Ms Haidari was ‘engaged’ again. During this discussion Ms Haidari expressed her concerns about Mr Halimi’s age, her lack of familiarity with him and that he did not live in Victoria. Ms Haidari said that she had been promised she could wait until she finished university to become married. Ms Big suggested that Ms Haidari obtain legal advice, and offered to talk to the applicant or to have religious leaders talk to the applicant. Ms Haidari refused due to concerns about the applicant’s reputation being harmed or the applicant becoming angry with her due to the cultural inappropriateness of someone external to the family being involved in the decision.
On 14 August 2019, Ms Haidari spoke to a teacher at her school. She was crying and said that she was worried the applicant was arranging her marriage to a man she did not know. She said that the applicant had previously arranged for her to be ‘engaged’. The teacher informed a social worker at the school of the situation.
On 17 August 2019, Mr Halimi travelled from Perth to Shepparton.
On 19 August 2019, Ms Haidari spoke to both her teacher and the social worker. She told them that Mr Halimi had come to Shepparton over the weekend and that there was to be a ceremony the following day. The school informed both Victoria Police and the Red Cross. Ms Haidari spoke with police in the presence of the social worker. She told them that she did not want to marry Mr Halimi and that a Nikah ceremony was to take place on the evening of 20 August 2019.
The applicant arrived at the school unaware of police involvement. Police offered support to Ms Haidari in the event that she felt she was being forced to get married. Ms Haidari said she was safe to go home that day and left with the applicant.
That evening Ms Muqadas and Mr Halimi visited the applicant’s house. Ms Haidari told Ms Muqadas that she was not happy with the marriage. Mr Halimi told Ms Muqadas that he would not have travelled to Shepparton if he had known that Ms Haidari was unhappy. Mr Halimi asked the applicant why he had been asked to come to Shepparton if ‘you guys’ were not happy. The applicant replied, ‘this will happen, you need to give it patience’. Ms Haidari told the applicant that she did not want to get married. The applicant told Ms Haidari that it was not up to her, and that the issue would not be immediately resolved but discussed over time. Ms Haidari again said that she did not want it and would not accept it at all. The applicant replied, ‘are you my mother, or I’m your mother? And I can make decisions for you’. The applicant responded to Ms Haidari’s continued refusals by stating, ‘[d]o you think it is up to you … no matter what, you need to listen to — to me, to your mother.’ Ms Muqadas told the applicant not to force Ms Haidari. The applicant replied that she had already ‘given’ her daughter, the matter was finished and she did not want to give herself a bad name by abandoning the proposed marriage. Ms Haidari told Ms Muqadas that if she did not marry Mr Halimi, she would not be able to live at home with the applicant.
On 20 August 2019, the Australian Federal Police spoke to Ms Haidari at her school. Ms Haidari told the police that she did not want to marry Mr Halimi and that she did not know anything about him, including his last name. She said that during a discussion the previous evening between herself, her two sisters, the applicant and Mr Halimi it had been agreed to wait eight months before the marriage occurred. She said that the promise ceremony planned for that night had been called off. Despite this, Ms Haidari expressed fears that there were conversations about her going on in the background. The police offered to obtain emergency accommodation for Ms Haidari and to talk to the applicant. Ms Haidari refused that help. She said she wanted to speak with the applicant herself to have the applicant understand that she did not want the marriage.
On 21 August 2019 the permanent Nikah between Mr Halimi and Ms Haidari took place.
Ms Haidari graduated from high school on 21 November 2019. The following day she moved to Perth with Mr Halimi.
In January 2020 Mr Halimi killed Ms Haidari in a ‘fit of rage’[7] when she did not behave as expected. Mr Halimi killed Ms Haidari by slitting her throat.
[7]Reasons, [63].
Applicant’s personal circumstances
The applicant was born in Afghanistan in 1976. She was about 42 years old at the time of offending and about 47 years old at the time of sentence. The applicant is of Hazara Afghan descent and is a Shia Muslim. She speaks Dari and a related dialect. She does not speak English. The applicant has never received any formal education. She attempted to learn English upon her arrival in Australia, but found it very difficult.
At the age of 12 or 13 years, the applicant was married to a man she had never met. She agreed to the marriage because her family required her to do so. She had five children, the eldest of whom was born when the applicant was in her early teens. Ms Haidari was the youngest of the applicant’s children.
The applicant’s husband was killed by the Taliban about a month after Ms Haidari’s birth. Her father, brother and sister were also killed by the Taliban. The applicant fled Afghanistan for Pakistan. In 2013, the applicant and her four youngest children came to Australia as refugees and settled in Shepparton. The applicant’s eldest child and her husband migrated to Australia and settled in Shepparton in 2018. All of the applicant’s children were married by the age of about 18 or 19 years in arranged marriages. The applicant has nine grandchildren. At the time of sentence she was living with her son and his wife and was in receipt of Centrelink payments.
The applicant fell to be sentenced as a person of good character. She had been a member of the Goulburn Valley Afghanistan Association since 2013. A reference from that organisation with 36 signatures described her as a well-respected person in the community, a participant in its activities and a regular attendee at the mosque. The applicant was noted to be quiet, kind and helpful. It was further noted that the applicant’s religion, culture and reputation in the community are of primary importance to her.
It was the common position before the sentencing judge that the applicant believed that in forcing Ms Haidari to marry Mr Halimi she was acting in her daughter’s best interests. It was also the common position that the applicant is grief stricken at Ms Haidari’s death.
A report from Ms Pamela Matthews, forensic psychologist, was tendered before the judge. The applicant told Ms Matthews that she thinks constantly of her daughter and has difficulty sleeping and a reduced appetite. She also told Ms Matthews that she believed she acted in accordance with Australian law regarding Ms Haidari’s marriage and that both she and her daughter were under pressure from Ms Muqadas and Mr Halimi. The judge did not accept either proposition. The judge accepted Ms Matthews’ opinion that the applicant was a simple person, with limited insight and had Major Depressive Disorder. The judge also accepted that the applicant had no reason to think that Mr Halimi would murder Ms Haidari, and that occurrence had been a terrible thing in her life and a source of ongoing grief.

Ground 1 — whether the applicant’s customary practice should be taken into account as lessening the applicant’s moral culpability

In assessing the applicant’s culpability the judge said
… I have regard to your personal history and that you were acting in what you thought were your daughter’s best interests. I note, however, that s 16A(2A) of the Crimes Act 1914 (Cth) prevents me from taking cultural law or customary practice into account to lessen the seriousness of the criminal behaviour to which the offence relates. Those matters explain why you thought this was the right thing to do, but they are not mitigating and they do not reduce your moral culpability.[8]

Applicant’s contentions

[8]Reasons, [61].

The applicant contends that this paragraph of the Reasons indicates error as it demonstrates that the judge considered that features of the applicant’s personal history could not be mitigating of penalty because they arose from cultural law or customary practice. It is argued that s 16A(2A) was not engaged. Rather, the applicant’s background, upbringing, world view and life experience should have been found to lessen her moral culpability as matters that were intrinsic to her.
The applicant further contends that certain comments made by the judge give rise to a ‘legitimate concern’ that cultural practices were considered in aggravation of penalty. It was put, for example, that the judge overemphasised the significance of a woman being bewa and that it was ‘striking’ that Ms Haidari had to be specifically given the right to study and work in the Nikah agreement.

Respondent’s contentions

The respondent contends that the impugned passage in the Reasons discloses no error. In it, the judge specifically states that she had regard to the applicant’s personal history and her belief that she was acting in the best interests of her daughter, but could not have regard to cultural law or customary practice. The judge thereby balanced two overlapping but separate considerations. Those matters personal to the applicant were properly considered. What could not be taken into account was any additional mitigation based on either cultural law or customary practice justifying the applicant’s conduct to the extent that it was based on Hazara culture.
The respondent further contends that the Reasons do not contain any comment which founds the suggestion that the judge erroneously took the applicant’s cultural practices into account in aggravation of penalty. The impugned passages contain no more than observations about the circumstances of the offending.

Consideration

The judge was correct to hold that s 16A(2A) of the Crimes Act prevented consideration of the applicant’s belief that she was acting in the best interests of Ms Haidari in mitigation of her moral culpability in so far as that belief arose from Hazara culture. That section did not — either theoretically or in fact — prevent the judge from considering the applicant’s background and lack of education as matters personal to her. It is clear that the judge gave what weight she could to the personal circumstances of the applicant in mitigation of penalty — short of acting contrary to s 16A(2A).
As we disagree with the conclusion reached by Boyce JA, it is necessary to briefly set out our reasons.
Section 16A(1) of the Crimes Act requires a court to impose a sentence that is of a severity appropriate in all the circumstances of the offence. In addition to any other matters, s 16A(2) requires a court to take into account such of the delineated matters ‘as are relevant and known to the court’. Section 16A(2)(m) refers to the ‘character, antecedents, age, means and physical or mental condition of the person’.

Section 16A(2A) then provides as follows:
However, the court must not take into account under subsection (1) or (2), other than paragraph (2)(ma), any form of customary law or cultural practice as a reason for:
(a)excusing, justifying, authorising, requiring or lessening the seriousness of the criminal behaviour to which the offence relates; or
(b)aggravating the seriousness of the criminal behaviour to which the offence relates.
Criminal behaviour for the purposes of s 16A(2A) is defined in s 16A(2B) as including any conduct, omission to act, circumstance or result that is, or forms part of, a physical element of the offence in question and any fault element relating to such a physical element.
As explained in the judgment of Boyce JA, s 16A(2A) was inserted into the Crimes Act at the same time as the words ‘cultural background’ were removed from paragraph 16A(2)(m). As part of the sentencing exercise required by ss 16A(1) and (2), paragraph 16A(2)(m) is the only paragraph focused upon the personal characteristics of the person to be sentenced. It necessitates ‘an overall personal assessment of the offender’.[9] Aside from the various statements in the extrinsic materials, it is clear that in removing ‘cultural background’ from the list of personal attributes to be considered in paragraph 16A(2)(m) at the same time as legislating that any form of customary law or cultural practice must not be considered a reason for excusing, justifying, requiring or lessening the seriousness of the subject criminal behaviour — nor considered a reason for aggravating it — Parliament intended that cultural background, customary law and cultural practice be irrelevant to the adjudication of the seriousness of any federal offence, both objectively and subjectively.
[9]Smith v Elliot [2007] ACTSC 65, [11] (Grey J).
This intention is reflected in the text of s 16A(2A)(a). It provides, among other things, that the court, in determining an appropriately severe sentence, must not take into account any form of customary law or practice as a reason for excusing or justifying the criminal behaviour to which the offence relates. Excusing or justifying behaviour plainly imports relief from blame so that, by s 16A(2A)(a), customary law or practice does not absolve the offender from blame for the criminal behaviour or reduce his or her blameworthiness for that conduct. Likewise, the offender’s blameworthiness is not reduced because customary law or practice authorises or requires the criminal behaviour. It follows that the further stipulation that the seriousness of criminal behaviour is not lessened by recourse to customary law or practice also involves no lessening of the offender’s blameworthiness or moral culpability.
It is to be remembered that s 16A(2A) qualifies the operation of s 16A(1) as well as s 16A(2). That is, customary law and cultural practice must not be considered when the court is determining what is ‘a sentence … that is of a severity appropriate in all the circumstances of the offence’. This determination involves consideration of the s 16A(2) factors that are relevant and known to the court, including those in s 16A(2)(a) — the nature and circumstances of the offence — and s 16A(2)(m) — the character, antecedents, age, means and physical or mental condition of the offender. The determination necessarily involves an assessment of the seriousness of the particular offending. And that task must be performed as part of the instinctive synthesis, taking into account both objective gravity and moral culpability.[10]
[10]Brown v The Queen (2019) 59 VR 462 [55] (Maxwell P, Priest, Kaye, T Forrest and Emerton JJA); [2019] VSCA 286 (‘Brown’).
The High Court plurality in Markarian v The Queen[11] approved the statement by Gaudron, Gummow and Hayne JJ in Wong v The Queen[12] that
the task of the sentence is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentence in some mystery, but to make plain that the sentence is called on to reach a single sentence which … balances many different and conflicting features.[13]
[11](2005) 228 CLR 357; [2005] HCA 25 (‘Markarian’).
[12](2001) 207 CLR 584; [2001] HCA 64.
[13]Markarian, [37] (Gleeson CJ, Gummow, Hayne and Callinan JJ) (emphasis in original).
McHugh J in his concurring judgment in Markarian said
[T]he judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a value judgement as to what is the appropriate sentence given all the factors of the case.[14]
[14]Markarian, 378 [51].
It would be erroneous — and the judge would be at risk of engaging in ‘two-stage sentencing’ — to approach the sentencing exercise under s 16A of the Crimes Act on the basis that the prohibition in s 16A(2A) against considering customary law and cultural practice as a reason for excusing, justifying, authorising, requiring or lessening the seriousness of criminal behaviour (as defined), applies only to the consideration of the ‘objective seriousness’ of the offence.
In particular, the traditional task of a sentencing judge to make an assessment of the overall seriousness of an offence is not the same as the task of a sentencing judge faced with a legislative scheme which imposes either a standard non-parole period applicable to an offence ‘in the middle of the range of objective seriousness’[15] or a standard sentence applicable to an offence in the middle range of seriousness ‘taking into account only the objective factors affecting the relative seriousness of that offence’.[16] In such situations, the standard non-parole period or the standard sentence are legislative ‘guideposts’ fixed by reference to a hypothetical mid-point of ‘objective’ seriousness’.[17]
[15]R v Way [2004] NSWCCA 131, [39] (Spigelman CJ, Wood CJ at CL and Simpson J) (‘Way’), quoting Crimes (Sentencing Procedure) Act 1999 (NSW), s 54A(2).
[16]Brown, [5], quoting Sentencing Act 1991, s 5A(1)(b) (‘Sentencing Act’).
[17]Muldrock v The Queen (2011) 244 CLR 120 [27]; [2011] HCA 39 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) (‘Muldrock’).
The observation of the High Court in Muldrock that the objective seriousness of an offence is to be assessed without reference to the matters personal to a particular offender and is to be determined wholly by reference to the nature of the offending,[18] is referrable exclusively to the statutory ‘concept’[19] or ‘guidepost’[20] of ‘the non-parole period for an offence in the middle of the range of objective seriousness’, being the statutory definition of a standard non-parole period there under consideration. It is not an observation of broader import.
[18]Muldrock, [27].
[19]Ibid.
[20]Ibid.
As this Court said in Brown:
In the High Court’s view [in Muldrock], therefore, the standard non-parole period provisions required only one assessment of ‘objective seriousness’. That was the assessment which was necessary in order to give ‘meaningful content’ to the legislative description of the ‘hypothesised offence’ as an offence ‘in the middle of the range of objective seriousness’. It was that assessment, the Court said, which must be undertaken ‘without reference to matters personal to a particular offender or class of offenders’ and ‘wholly by reference to the nature of the offending’.[21]
[21]Brown, [26].
The Court in Brown, which considered the Victorian standard sentence provisions (which were modelled on the NSW standard non-parole provisions considered in Way and Muldrock) further said that the determination of what is an offence in the middle of the range of seriousness taking into account only the objective factors affecting the relative seriousness of that offence[22] is for the ‘sole purpose of giving content to the hypothesised mid-range offence’.[23] The Court continued:
The judge is still required to assess the seriousness of the subject offence. Now, as before, the judge is required by s 5(2)(c) of the [Sentencing Act] to have regard to ‘the nature and gravity of the offence’. That obligation is unaltered by the advent of the standard sentence scheme. And the assessment of offence seriousness is to be done as it has always been done, without reference to the strictures imposed by s 5A(3).[24]
[22]Sentencing Act, s 5A(1)(b).
[23]Brown, [36].
[24]Brown, [37].
The Court concluded that
[s]entencing for standard sentence offences should continue to assess offence seriousness in the conventional way, taking into account both objective gravity and moral culpability.[25]
[25]Brown, [55].
In the instant case, the maximum penalty aside, there was no ‘legislative guidepost’ which required an assessment of ‘objective seriousness’ of the offending absent consideration of any factor personal to the applicant. Even if there had been, that assessment would have related only to the measure of that guidepost. It would not have displaced the requirement for the judge to consider all factors relevant to the assessment of the seriousness of the subject offence — both objective gravity and moral culpability — as part of the instinctive synthesis. By virtue of s 16A(2A) customary law or cultural practice, even if viewed as venerable[26] by a cross-section of the Australian community, is an irrelevant factor.
[26]Venerable is defined to mean accorded a great deal of respect, especially because of age, wisdom or character. No matter how long-standing a cultural practice has been, any practice that involves subjugation of one person to another or the infliction of harm, such as forced marriage or female genital mutilation, should not be tolerated or respected in a pluralistic society.
The second aspect of ground 1 may be addressed shortly. There is nothing in any part of the reasons which gives rise to a ‘legitimate concern’ that cultural practices were considered in aggravation of penalty. The judge, as she was required to do, described the nature of the offending and the impact it had upon Ms Haidari.
It follows that leave to appeal on ground 1 must be refused.

Ground 5 — whether sentence manifestly excessive

Applicant’s contentions

As noted above, the applicant argues grounds 2, 3, 4 and 6 as particulars of the contention that the sentence imposed is manifestly excessive. It is put that:
(a)Had the death of Ms Haidari been considered as a form of extra-curial punishment the sentence imposed would have been less.
(b)It was artificial for the judge to describe the offending as ‘mid-range’ given it was the first example of its type.
(c)A sentence other than one of immediate imprisonment was within the range of penalties available to the judge. The three year sentence imposed, being half the maximum penalty, invites scrutiny.
(d)The applicant’s personal background coupled with her motivation, being that she was acting in what she perceived to be the best interests of her daughter — rather than seeking to assuage her family’s reputation in the community — lessens the need for general deterrence and compelled the judge to exercise mercy.

Respondent’s contentions

The respondent contends that the sentence was firm but within the sound exercise of the judge’s sentencing discretion. It is put that:
(a)The judge did take into account the effect on the applicant of Ms Haidari’s death. That said, its relevance to the need for general deterrence outweighed any mitigating effect.
(b)Forced marriage is a serious offence and the applicant’s offending is accurately described as a mid-range example of it.
(c)The judge accepted the evidence of Ms Muqadas as to the motivation of the applicant for her conduct. The applicant did not demonstrate contrition for her offending. The discretion of mercy could not override the legislative command in s 16A(1) of the Crimes Act to impose a sentence of a severity appropriate in all the circumstances.

Consideration

Forced marriage is a serious violation of human rights. The forced marriage offences in s 270.7B of the Criminal Code appear in Division 270 — Slavery and slavery-like offences — of Chapter 8 — Offences against humanity and related offences. This domestic enactment is Australia’s response to several international instruments to which it is a signatory. These include the Universal Declaration of Human Rights,[27] the Marriage Convention,[28] the International Covenant on Civil and Political Rights,[29] the International Covenant on Economic, Social and Cultural Rights[30] and the Convention on the Elimination of All Forms of Discrimination against Women.[31]
[27]Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10 December 1948) art 16(2).
[28]Convention on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, GA Res 1763A (XVII), UN GAOR, UN Doc A/7525 (10 December 1962) art 1(1).
[29]International Covenant on Civil and Political Rights, GA Res 2200A (XXI), UN GAOR, UN Doc A/14668 (19 December 1966) art 23(3).
[30]International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), UN GAOR, UN Doc A/14531 (16 December 1966) art 10(1).
[31]Convention on the Elimination of All Forms of Discrimination Against Women, GA Res 34/180, UN GAOR, UN Doc A/20378 (18 December 1979) art 16(1)(b).
The importance of free and full consent to marriage by intending spouses is exquisite. While marriage is, in part, a societal and/or religious construct, it is mostly an intimate, ongoing compact between two people. Where one person is forced to be a spouse to another, it exposes that person to a repeated daily risk to their physical, sexual, psychological and financial integrity. It can rob a person of their educational and career opportunities. It subjugates them to another. And, as this case illustrates, it also exposes the compelled spouse to a risk of death.
It follows that the forced marriage offences in s 270.7B are serious offences. The use of coercion, threats or deception to induce a person to enter a marriage is insidious. By its nature the offending is difficult to detect and police. The victims will often be vulnerable to family and community pressure, equally fearful of the consequences of disobedience to older family members as of the marriage itself. Principles of general deterrence, denunciation and just punishment will assume significance in sentences imposed for such offending.
The applicant’s conduct in this case was a serious example of the offence. It is perhaps beside the point whether the use of the descriptor ‘mid-range’ is accurate or not. The judge was correct to say that it was not ‘a low level instance’.[32]
[32]Reasons, [93].
Immediately upon Mr Halimi meeting Ms Haidari and the applicant, Ms Haidari, who requested time to consider the matter, was thereafter excluded from all further discussions concerning the marriage. That she was distressed and fearful of the marriage is evident in and from her discussions about the matter with numerous others. That she was at least equally distressed and fearful of disobeying the applicant is evident from her refusal of help and her belief that if she did not marry as directed she would be unable to live at home. On the evidence given in the trial by Ms Muqadas, two days before the marriage the applicant was repeatedly told by her daughter that she did not want to get married. The applicant — Ms Haidari’s only living parent — responded by telling her daughter, in effect, that she had no say in the matter. The applicant also told Ms Haidari, contrary to the true position, that the matter would be delayed for quite some months. The applicant further said that she did not want to give herself a bad name by abandoning the marriage after Ms Haidari had been ‘promised’. In so doing, the applicant prized her own reputation much more highly than the wishes and welfare of her daughter. Those wishes were modest for a 20 year old: to finish high school, undertake further study and get a job. They did not involve marrying a stranger and moving to Perth, disconnected from the family she so worried about displeasing or shaming.
It follows that it was open to the judge to find that the applicant’s statements to both the police and Ms Matthews that she did not know that Ms Haidari was not willing to marry Mr Halimi were untrue. Those statements reflect poorly upon the applicant’s remorse for her offending. At the same time, the judge recognised that, in light of the applicant’s personal history, she acted in what she thought were her daughter’s best interests[33] even though in fact she was not. Human behaviour is rarely motivated by a single impulse.
[33]Reasons, [53], [61] and [92].
It is beyond doubt that the applicant is remorseful for her daughter’s death. It is clear, as the judge found, that the applicant had no reason to think that Mr Halimi would murder Ms Haidari.[34] As already noted, however, that the risk of death to a victim of forced marriage may be unforeseen but nonetheless far from fanciful reflects the seriousness of the nature of the offence and underscores the need for emphasis on denunciation and general deterrence.
[34]Reasons, [85].
Contrary to the applicant’s proposed ground 2, now argued as a particular of ground 5, the applicant did not rely on Ms Haidari’s death as a form of extra-curial punishment before the judge.[35] Nonetheless, the judge gave weight to the applicant’s resultant depression and grief, noting that the death of her daughter had been a terrible thing in the applicant’s life.[36]
[35]Reasons, [85].
[36]Reasons, [81] and [85].
The judge faced a difficult sentencing task. Against the factors demonstrating the objective seriousness of the offending and the applicant’s moral culpability for it, the judge gave weight to and balanced all other factors upon which the applicant could call in aid of mitigation of sentence. The judge referred to the applicant’s own background, including her marriage at a very young age at the behest of her parents, her standing in

the Hazara community in Shepparton, her psychological profile, the risk she faces of deportation, the likely difficulty of her experience of custody, her cooperation with authorities and the little likelihood of further offending.

In all the circumstances of this case, there was no error in the judge concluding that any sentence other than an immediately operative term of imprisonment would be manifestly inadequate. Indeed it must be the expectation generally that anyone who coerces another into marriage against their will lose their liberty as a result.
Further, the actual sentence imposed was well within the sound exercise of the judge’s sentencing discretion.
The term of 3 years’ imprisonment is less than half of the maximum penalty (and it is to be remembered that the aggravated offence of causing a person to enter into a forced marriage is punishable by 9 years’ imprisonment). While it is possible to imagine more serious examples of the offence, it is also possible to imagine less serious examples. In directing the applicant’s release on her own recognizance after serving 12 months in custody, the judge clearly took into account the constellation of factors personal to the applicant to arrive at a term of imprisonment required to be served in the interests of justice.
The discretion of mercy is exactly that, a discretion. There was nothing in this case that compelled its exercise to impose a sentence that did not involve incarceration.
It follows that leave to appeal on ground 5 must be refused.

Conclusion

Leave to appeal against sentence will be refused.

BOYCE JA:

Introduction

The applicant is a member of Victoria’s Afghan Hazara community. Her youngest daughter is now deceased; she was murdered at the age of 20 by the man she married. The applicant was found guilty by a jury of the offence of having engaged in conduct that caused her daughter to enter into a forced marriage contrary to s 270.7B(1) of the Criminal Code (Cth).[37] The applicant was married at the age of 12 or 13 in Afghanistan. The applicant’s husband was killed by the Taliban only weeks after the birth of the deceased. The Taliban killed the applicant’s father, brother and sister as well. The applicant fled Afghanistan with her five children and spent 13 years in a refugee camp in Pakistan. Australia eventually accepted the applicant and her children as refugees. The family settled in Shepparton. The judge who sentenced the applicant accepted that

the applicant genuinely believed that in committing the offence of forced marriage she was acting in her daughter’s best interests. It was not suggested in the sentencing court that the applicant was in any way responsible for her daughter’s death; nor was it suggested that the daughter’s death aggravated the applicant’s culpability. But the applicant is, understandably enough, grief-stricken at the loss of her daughter. The applicant was sentenced to three years’ imprisonment to be released on recognisance after she had served one year.
[37]For brevity, the offence will be described as the offence of ‘forced marriage’. The offence carries a maximum penalty of seven years’ imprisonment.

The applicant applies for leave to appeal against her sentence. I would grant her that leave, allow the appeal, and set aside the sentence imposed in the County Court.

Forced marriage

At the sentencing hearing, the respondent charted the legislative background to the forced marriage offence. In summary, materials referred to by the respondent[38] established the following. The offence of which the applicant was found guilty was introduced in 2013. A basis for the offence’s introduction lay in a desire to ameliorate the risks and harmful consequences that were considered to be attendant upon the practice of forced marriage, particularly when it came to young people. The legislature considered that the practice of forced marriage led to a loss of education as well as a restriction of movement and autonomy. It was considered also to lead to emotional as well as physical abuse. It was thought that marriages of this nature placed children at increased risk of repeated sexual, physical and psychological abuse. The legislature considered that vulnerable young women, and girls, were disproportionately affected by forced marriage. In such cases it was considered that, in this respect, forced marriages were often accompanied by early and frequent pregnancies and childbirth; they resulted in higher than average maternal morbidity and mortality rates; and led to an increased risk of physical, psychological and financial abuse, as well as self-harm and suicide.

The circumstances of the offending

[38]Reference was made by the respondent to the Second Reading of the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 (Cth) and also the Explanatory Memorandum to the Combatting Child Sexual Exploitation Legislation Amendment Bill 2019 (Cth) which contained further amendments.

Background

The sentencing judge’s reasons commenced by making reference to the legislative background outlined above.[39] Those reasons described that, ordinarily, unmarried young Hazara men and women do not have much social interaction. As such, it is not uncommon for such persons to enter into what is known as a ‘temporary Nikah agreement’. Such an agreement allows the participants to ‘get to know one another’. According to the sentencing judge, a ‘Nikah’ is considered to be a marriage according to Islamic law such that if the participants take part in either a temporary or permanent Nikah, they may have interactions ‘which would otherwise be prohibited both by law and custom’. The participants may ‘spend time together and communicate’, and ‘it is implicit that they may be sexually intimate’.[40] As the judge described it:
When a woman is divorced she is considered ‘bewa’, which means that she has lost some of her value to her community. This may reflect poorly on the family of a divorced woman. In Hazara culture, a woman’s reputation is important.[41]
[39]Reasons, [1]–[5].
[40]Reasons, [6].
[41]Reasons, [6].
The sentencing judge noted that ‘[a] temporary Nikah agreement can be made permanent with another permanent Nikah ceremony, it can expire, or the couple can divorce prior to the expiration’.[42] Ceremonies for temporary and permanent Nikahs are similar — family members attend; a religious leader conducts the ceremony; and the parties sign an agreement containing any conditions that have been agreed, such as giving the bride the right to initiate a divorce, or to work or study. If the Nikah is temporary then the length, or term, of the agreement is set out in the conditions.[43]
[42]Reasons, [7].
[43]Reasons, [8].
After the permanent Nikah there is often a large wedding celebration. Under Islamic law the parties to a Nikah are husband and wife but ‘within the culture’ they may be regarded as engaged, and referred to as ‘fiancés’ until the time of the wedding celebration.[44]
[44]Reasons, [9].
As to gaining of approval for a woman to be married, the judge observed:
Generally, it is the role of a young woman’s father to approve her marriage. If the father is absent then perhaps an older brother or grandfather will take the role of giving permission. When the father of a girl is alive he must give permission for her first marriage, but for later marriages the woman does not, under Islamic law, require the permission of anyone. A mother may play a very strong cultural role of advising, influencing, or encouraging the marriage of their children, but she does not generally give permission for a daughter’s marriage.[45]
[45]Reasons, [10].
The judge observed that often the new husband will provide, usually to the bride, a gift of money, gold, or other items of value. This is known as a ‘mehrieh’. If such a gift is to be paid, it will be ‘included in the Nikah terms’.[46]
[46]Reasons, [11].

Offending

The deceased had, when she was 15,[47] been married to a man under a temporary Nikah. The engagement lasted for approximately two years and ended in divorce. The daughter was thus considered to be ‘bewa’ by the Hazara community. She was happy that the engagement had ended; she did not want to be married until her late 20s; she wanted to ‘study and get a job’; she wanted to ‘expand her life choices’ and not follow the path experienced by her sisters.[48]
[47]The age of the daughter when she undertook this ceremony was disputed by the applicant (see proposed ground 8 below). It was contended by the applicant that, in fact, the daughter was 17 when this ceremony took place.
[48]Reasons, [12]–[13].
A friend of the applicant, Shukria Muqadas, had been asked by an acquaintance in Pakistan to try and find a wife for a man, Mohammad Ali Halimi, who lived in Perth. Ms Muqadas contacted the daughter about this but the daughter said that she was not interested. Ms Muqadas discussed the matter with the applicant. The applicant was told that Mr Halimi was religious, had two jobs and did not have any bad habits.[49]
[49]Reasons, [15]–[16].
The applicant, her daughter and other members of the applicant’s family met with Mr Halimi in Shepparton. Mr Halimi then returned to Perth. A day later, the applicant’s daughter told her driving instructor that she was going to be married, but that it was not something she wanted. Approximately a week later, the applicant told Ms Muqadas that she agreed to the marriage between Mr Halimi and her daughter.[50]
[50]Reasons, [17], [20]–[23].
A week or so later Mr Halimi returned to Shepparton and a temporary Nikah was held at the applicant’s home. It was attended by approximately 30 people. The ceremony was presided over by a Mullah. The applicant’s daughter and Mr Halimi signed a one-year temporary agreement. The agreement allowed the daughter to ‘study’ and ‘work’. It also permitted the daughter to divorce Mr Halimi. A mehrieh of $14,000 was to be paid by Mr Halimi. The sentencing judge found that ‘[f]rom this point [the applicant’s daughter] and Halimi were considered to be engaged, culturally and married under Islamic law’.[51] Mr Halimi then returned again to Perth.
[51]Reasons, [25].
Some days later, the applicant’s daughter told her driving instructor, a further time, that she did not want to marry Mr Halimi. She said that ‘he was too old, and that they had nothing in common’.[52] In evidence at the trial the driving instructor said that the daughter ‘just didn’t want to do it. She didn’t know what to do about that … she asked me for help’. The daughter had a further number of driving lessons with her instructor; according to the instructor the applicant’s daughter ‘expressed similar feelings, often becoming upset and crying’.[53]
[52]Reasons, [27].
[53]Reasons, [29].
The daughter told another member of the local Hazara community, Haydar Big, that she had concerns about Mr Halimi’s age, the fact that she did not know Mr Halimi and that he did not live in Victoria. The daughter told Ms Big that she had been told that she could wait to get married until after she had finished university. Ms Big suggested that she might speak to the applicant. Ms Big also suggested that the daughter obtain legal advice or that arrangements be made so that the applicant could be spoken to by a religious leader. The daughter refused these offers. The daughter considered it ‘culturally inappropriate’ for someone outside the family to get involved.[54]
[54]Reasons, [30]–[31].
The applicant’s daughter later spoke to a teacher at her school. She told the teacher that the applicant was arranging a marriage for her. The teacher said that the daughter was ‘upset, crying and seemed tired and overwhelmed’.
A few days later Mr Halimi arrived back in Shepparton.
Some days after Mr Halimi’s arrival in Shepparton, the applicant’s daughter told her teacher, as well as a social worker, that Mr Halimi had arrived, that there was to be a ‘promise ceremony’ the next day, and that ‘that would be like they were married’. The sentencing judge considered this was ‘clearly a reference to a permanent Nikah ceremony’. The police and Red Cross were notified.[55]
[55]Reasons, [34].
The following day a meeting was held between the applicant’s daughter, the social worker and members of the Australian Federal Police. At that meeting the daughter said that she had been given an ‘ultimatum’ and that she was being advised to marry Mr Halimi. She said that $10,000.00 had been paid to the applicant by Mr Halimi. The applicant’s daughter said that she believed that the ‘promise ceremony’ had been called off, in the sense of having been delayed for eight months. But the applicant’s daughter was concerned that there were ‘conversations happening behind her back’. The applicant’s daughter refused offers of emergency accommodation as well an offer that police, or her school teachers, talk with the applicant.[56]
[56]Reasons, [35]–[37].
At or around this time, the applicant’s daughter, Mr Halimi and Ms Muqadas spoke together. The applicant’s daughter told Ms Muqadas that ‘she was not happy about the marriage’. The applicant’s daughter ‘appeared to be teary’. Mr Halimi later spoke with the applicant and expressed his concern that the marriage was not going to go ahead. Nevertheless, the applicant said that ‘this will happen’ and that she would speak to her daughter.[57]
[57]Reasons, [38]–[39].
The applicant’s daughter spoke with the applicant and told her that she didn’t want to get married. But the applicant said to her daughter that it was not up to her. The applicant’s daughter said that she was ‘not going to accept this situation’ but the applicant said ‘I can make decisions for you’. The applicant’s daughter continued to refuse. The applicant responded: ‘Do you think it is up to you … no matter what, you need to listen to — to me, to your mother’.[58] Mr Halimi said to the applicant’s daughter: ‘Don’t worry about me and about your mother. So do you want to get married or not?’. The applicant’s daughter replied that if she did not marry Mr Halimi she would not be able to live at home with the applicant.[59]
[58]Reasons, [40].
[59]Reasons, [41].
The permanent Nikah took place a few days later. Seven or eight people attended and, again, a Mullah presided. The applicant’s daughter told the Mullah that she and Mr Halimi had decided to get married. The applicant confirmed this. A written agreement was drafted for this occasion; it included the rights on the part of the applicant’s daughter to get divorced, to work, to study and to travel. The applicant’s daughter and Mr Halimi were then considered to be married under Islamic law. The marriage qualified for the purposes of the offence with which the applicant was charged.[60]
[60]Reasons, [42]–[45].
The applicant’s daughter continued to live with the applicant and attend high school. Some days later there was a cultural celebration connected with the wedding. It was known as a ‘Henna night’. A further celebration was held the following day. There were hundreds of guests at each of these celebrations. The applicant’s daughter and Mr Halimi remained in Shepparton, staying in a hotel, until the daughter graduated from high school some weeks later. The couple then moved to Perth.[61]
[61]Reasons, [46]–[48].
Mr Halimi then murdered the applicant’s daughter, as the judge described it, ‘in a fit of rage, when [the daughter] did not behave as [Mr Halimi] expected’. [62]
[62]Reasons, [63].

The plea

At the plea, the prosecution characterised the offending as ‘at the mid-level of seriousness’. It was offending that involved ‘a significant breach of trust’ given the particular vulnerability of the applicant’s daughter due to her lack of ‘economic independence’. The prosecution argued that the motive lying behind the applicant’s offending was a desire to rid her daughter of the social obloquy which arose consequent upon the daughter’s status as ‘bewa’.
To the extent that the applicant considered that she was acting in her daughter’s best interests, due to ‘customary law or cultural practice’ to which the applicant was subject, it was submitted that s 16A(2A) of the Crimes Act stood in the way of any mitigation of penalty on this basis. Similarly it was submitted that s 16A(2A) would not permit any reduction in the applicant’s moral culpability to the extent that she considered that she was doing the right thing according to ‘customary law or cultural practice’ to which she had adhered. It was submitted that such matters signified only an absence of aggravation. The prosecution conceded, however, that — at least to some extent — the applicant’s moral culpability was lessened by virtue of the applicant’s relatively deprived background.
The prosecution submitted that only a term of imprisonment could properly reflect ‘the seriousness of this offence and the need for general deterrence’. As the prosecutor put it — ‘the community needs to know, you can’t do this. You can’t operate in this manner in Australia. It’s not how we do things’. Nevertheless, the prosecutor acknowledged that ‘depending on the weight that [the sentencing judge might give to] the various mitigating circumstances … [a]n actual minimum may or may not be required’. In other words, the prosecutor did not submit that it was necessary that the applicant serve actual time in prison.
The judge, in discussion with the prosecutor, referred to the ‘background material’ concerning ‘why the legislation was put in place’ and the ‘harm of forced marriage, that it leads to rape, violence, people’s rights being taken away from them, having children with people who they never wanted to be married to in the first place’. The judge then inquired of the prosecutor whether she would err if she took into account the fact that the applicant’s daughter had been murdered by Mr Halimi. The prosecutor submitted that the judge would not err if the sentencing task was approached in this manner. As the prosecutor expressed it:
It’s, if you like, purely looking at it from well what did happen? And what did happen is almost exactly the reasons that Parliament said this offence is necessary, because of the consequences of forced marriages, exactly as Your Honour’s just articulated. So yes, you can take these matters into account. They are relevant, but they are not aggravating in any way of the offender’s state of mind.
The prosecutor ultimately submitted, concerning the relevance of the death of the applicant’s daughter to the sentencing exercise generally, that:
The consequences here are relevant and because the consequences were the worst possible outcome for an offence of this kind, that strengthens the need for general deterrence. So in a sense you have the death of [the daughter] potentially having counterbalancing exercise on the one hand supporting a strong need for general deterrence and having some mitigating benefit in terms of the propositions I just put to Your Honour.
I don't say for a moment that they count each other out; the need for general deterrence is far stronger than any mitigating benefit the offender receives as a consequence of the psychological distress she is now in, as a result of her daughter’s death.[63]
[63]Emphasis added.
The prosecutor acknowledged that there was no evidence that anybody anticipated that Mr Halimi would murder the daughter. In written submissions, filed with the sentencing court, the prosecution submitted that whilst the death of the applicant’s daughter was an eventuality that the legislature had sought to avoid through the introduction of the forced marriage offence, ‘[t]his fact … [the daughter’s death] … is not to be seen as aggravating the Offender’s level of culpability.’
Defence counsel relied on a diagnosis made by psychologist Pamela Matthews. This was that the applicant suffered from a ‘Major Depressive Disorder’. Counsel submitted that the applicant would experience a custodial term as a greater burden on account of her depressive symptoms and that any gaol sentence would likely cause a deterioration in the applicant’s symptoms. Indeed Ms Matthews opined that a term of imprisonment would be ‘exceedingly difficult’ for the applicant and would ‘likely … exacerbate [the applicant’s] already poor mental state and her grief’ causing the applicant to ‘find time in custody more burdensome than most’. Defence counsel relied on difficulties that the applicant would experience in custody on account of her language difficulties and ‘her separation from her family and the like’. Defence counsel cited the applicant’s lack of prior convictions and submitted that the applicant was unlikely to offend again. It was submitted that the applicant’s conviction for the present offence would carry ‘great shame’ for her; shame that was ‘far beyond the usual stigma’.
Defence counsel submitted that the purposes of sentencing could adequately be met by the imposition of a community correction order, or, alternatively, a sentence of imprisonment with the applicant released forthwith on a recognisance release order.
Defence counsel submitted that there was no suggestion that the applicant did not mean to care for the daughter or otherwise act in the daughter’s best interests. Features such as this, in defence counsel’s submission, made the applicant’s commission of the present offence one that was ‘lower than a mid-range offence’. This was so notwithstanding that the applicant’s was ‘serious offending’.

Defence counsel emphasised that the applicant had lost her husband, father, brother and sister to the Taliban. The applicant had never attended school and did not speak English. It was put by defence counsel that the applicant ‘may have been as young as 12’ when she was married to her late husband. The applicant had five children. The applicant and her children fled Afghanistan and spent 13 years in a refugee camp in Pakistan before arriving in Australia.
Defence counsel made reference to the daughter’s earlier marriage ‘seemingly when she was 15’. This, counsel agreed, was ‘relevant to the cultural practices that [the applicant] continued to live by’.
The grief and suffering experienced by the applicant upon the loss of her daughter was emphasised by defence counsel and was linked to the applicant’s ‘Major Depressive Disorder’. Defence counsel said that he was ‘dissuaded’ from characterising the death of the daughter as ‘extra-curial punishment’ suffered by the applicant due to lack of a sufficient causal connection in existence between the commission of the relevant offence by the applicant and the fact of the daughter’s death. Nevertheless, defence counsel was ‘happy to be wrong’ on this score. Defence counsel submitted that it was ‘probably safer’ to regard the daughter’s death ‘more as part of the circumstances of [the applicant]’.
Defence counsel submitted that the circumstances of the applicant’s background were ‘Bugmy–esque if you like’.[64] The applicant had ‘limited education’ and was ‘perhaps only doing what she knew’ in ‘adapting to a vastly different culture’. It was said that the applicant had experienced ‘social disadvantage and deprivation in her childhood’. The following was submitted in writing:
It is also submitted that the court should find (quite consistent with the prosecution case and findings of the jury) that [the applicant] acted in the way that she did because of what she then believed to be the best interests of her daughter, given the cultural beliefs and practices of the Hazara community of which she was a part and pressure upon her by Ms Muqadas and Mr Halimi. There is nothing to suggest that [the applicant] did not believe that Mr Halimi would not be a good husband. That was impressed upon [the applicant] by Ms Muqadas (on Ms Muqadas’s own account). On [the applicant’s] account at Q336 of the ROI (relied upon [by] the prosecution) she was under pressure from Mr Halimi for the marriage to occur as soon as possible.
As Ms Matthews has opined:
[S]he is a quite simple woman who believes she and her daughter were pressured by the neighbour Muqadas into this marriage. Given [the applicant’s] simplicity, she may not have been able to assert herself under such pressure. Religious beliefs and a fear of community approbation towards her and her daughter also seem to be factors related to her offending; again, she is a simple person, and while aware many Australians approach intimate relationships differently, she is likely not to is [sic] have been able to take a broader view.
As such, it is submitted that her moral culpability is lower than if it would otherwise have been.
[64]Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37.
Defence counsel relied on the applicant’s lack of prior convictions or any ‘subsequent matters’ as well as the support that the applicant enjoyed in the community. Defence counsel submitted that the applicant’s risk of deportation would act as a burden upon her were she to receive a term of imprisonment of ‘12 months or more’, especially given that she originally came to Australia in order to ‘escape the Taliban’.

The sentencing reasons

The judge characterised the offence of which the applicant had been found guilty as ‘an inherently serious one’ given the constraints on the daughter’s freedom that were imposed and the fact that certain rights were required to be ‘written into [the daughter’s] Nikah agreement’. The marriage, so the judge found, was ‘rushed’ despite ‘reassurances’ of a proposed delay for eight months.[65]
[65]Reasons, [49]–[52].
The judge accepted that the applicant considered that she was acting in her daughter’s ‘best interest, in light of [the applicant’s] culture and the usual practices of [the applicant’s] community’. Nevertheless, in view of what the applicant had told police in her record of interview, the judge considered that the applicant ‘knew it was wrong to force a person to marry’. The judge considered that once the applicant had told the daughter that she had to marry, or leave home, this placed ‘intolerable pressure’ on the daughter because leaving home was not a realistic option; cultural shame and fear of the applicant’s anger meant that the daughter was unable to involve third parties in an attempt to resolve the situation.[66]
[66]Reasons, [53]–[54].
The judge did not accept that Ms Muqadas had persisted in trying to persuade the applicant to have her daughter marry; that is, beyond the first meeting that the applicant, her daughter and the family had with Mr Halimi. The judge did not accept, also, that Mr Halimi was ‘pushing for the marriage to occur’. The judge rejected statements made by the applicant to the psychologist Ms Matthews which suggested that the applicant did not know that her daughter was not willing to marry Mr Halimi.[67]
[67]Reasons, [55]–[57].
The judge made reference to the circumstances in which the daughter found herself and the fact that ‘[w]hilst there was no physical violence or force used to coerce [the daughter] into the marriage, this does not mean that the pressure [the daughter] felt was not real’.[68] The judge said of the applicant’s daughter:
All her family was within the small Hazara community in Shepparton, as were most of her friends. She did not have a job. Whilst offers were made to help her, these would have led to her alienation from [the applicant], her mother. Furthermore, she would have known that not taking part in the marriage would raise questions about [the applicant] and the rest of the family, within the Hazara community and it is clear from the evidence of Ms Haydar Big that she was concerned not only about [the applicant’s] anger, but [the applicant’s] standing in the community.[69]
[68]Reasons, [60].
[69]Reasons, [60].
In assessing the applicant’s culpability, the judge had regard to the applicant’s ‘personal history’ and that the applicant was ‘acting in what [she] thought [were her] daughter’s best interests’.[70] The judge continued, however:
I note, however, that s16A(2A) of the Crimes Act 1914 (Cth) prevents me from taking cultural law or customary practice into account to lessen the seriousness of the criminal behaviour to which the offence relates. Those matters explain why you thought this was the right thing to do, but they are not mitigating and they do not reduce your moral culpability.[71]
[70]Reasons, [61].
[71]Reasons, [61].
In consideration of the deceased daughter’s personal circumstances, the judge recorded that she was ‘still young, only 20 years old’ and that the daughter was ‘finishing high school and looking forward to her life, hoping to study further and get a job’. The judge noted that the daughter had wanted to ‘put off getting married for some time’ so that she might ‘explore the options available to her about how to live her life’. Describing the eventual outcome of the marriage, the judge said:
Having been forced to marry [the applicant’s daughter] was then required to move across the country to live with a man she hardly knew, and to be subject to his power and expectations as her husband. He murdered her in a fit of rage, when she did not behave as he expected. You are not, of course, being sentenced for his acts, nor is it in any way suggested that you had foresight that he would murder her.[72]
[72]Reasons, [63].
Turning to the applicant, the judge observed that she had been born in Afghanistan; that she was approximately 42 at the time of the offending and was around 47 or 48 at the time of sentence. The applicant had received no formal education and did not speak English. She was married at 12 or 13 to a man that she had never met before. The applicant commenced having children in her ‘early teens’ and had had five children. She fled Afghanistan with her children, and after a period in Pakistan, came to Australia as a refugee, settling in Shepparton. The applicant had no prior convictions. She was a respected member of her community and enjoyed considerable community support.[73]
[73]Reasons, [64]–[67], [71]–[72].
The judge took into account the psychological assessment that had been completed on the applicant’s behalf. Unsurprisingly, that assessment recorded that the applicant had suffered significantly due the tragic loss of her daughter. The applicant qualified for a diagnosis of ‘Major Depressive Disorder’.[74]
[74]Reasons, [73]–[75].
The judge found that the applicant’s risk of deportation gave rise to a ‘moderate degree of mitigation’ in sentence on the bases that deportation, ‘should it occur’, would constitute ‘additional punishment’. Additionally, the prospect of deportation would continue ‘weigh[ing] on the [the applicant’s] mind’ should she serve a term of imprisonment.[75] The judge considered that, as a Hazara woman, ‘the situation’ would be ‘extremely difficult and unsafe’ were she returned to Afghanistan. Thus, such a prospect would constitute ‘significant extra punishment’.[76] Whilst the judge considered that the prospect of deportation carried ‘real weight’ in the sentencing discretion, her Honour was not permitted to sentence ‘in a way designed … to avoid the operation of the Migration Act’.[77]
[75]Reasons, [76]–[77].
[76]Reasons, [77].
[77]Reasons, [79].
The judge accepted that a prison sentence would be ‘very difficult’ for the applicant in light of her lack of English, limited life experience and the shame that she had experienced. The judge accepted that this would make her time in prison more onerous. Service of such a sentence would likely ‘exacerbate [the applicant’s] mental health’ and a gaol sentence would be made harder for the applicant by reason of her ‘ongoing depression and grief’.[78]
[78]Reasons, [80]–[81].
The judge considered that the applicant had ‘been cooperative with the authorities’, but had not shown any contrition. Specific deterrence had ‘little or no role to play’.[79]
[79]Reasons, [82]–[83].
As to the relevance, for the purposes of sentencing, of the death of the applicant’s daughter, the judge observed:
You had no reason to think that Halimi would murder [your daughter]. Whilst your counsel did not seek to rely on [your daughter’s] death as a form of extra-curial punishment, her death, in such circumstances has been a terrible thing in your life, and a source of ongoing grief.[80]
[80]Reasons, [85].
The judge remarked that she was required to impose upon the applicant punishment that was ‘adequate’. Her Honour dwelt upon the particular mischief the legislature had sought to ameliorate through the introduction of the present offence. The judge considered that this offence was designed to protect a ‘vulnerable young person’ from a ‘family member’. The judge concluded that ‘[t]hat is what happened here’. As the judge put it:
It must be made clear to everyone in our country that forced marriage is against the law, and that forcing someone to take part in a marriage against their will leads to significant consequences for the offender. Whilst I accept that even being charged and enduring the publicity of a trial and plea hearing acts as a deterrence, that is insufficient to bring home to the public that real punishment will follow such an offence.[81]
[81]Reasons, [86]–[87].
As to the deterrent effect, generally, of a period of imprisonment coupled with immediate release on a recognisance release order, the judge considered that such a disposition ‘has a deterrent effect’ but that ‘the impact of such a disposition as general deterrence is much less than a period of imprisonment actually to be served’.[82]
[82]Reasons, [88].
The judge took into account the applicable maximum penalty of 7 years’ imprisonment. The judge took into account the fact that the offence with which the applicant had been charged could be committed by someone who did not actually commit an act of coercion. The offence was open, according to the judge, to have been committed, either knowingly or recklessly, by having acted simply to cause another to enter a marriage that was coerced.[83] The judge then observed that:
[The applicant was] the trusted and only living parent of the victim. It was [the applicant’s] acts of coercion that caused [the daughter] to enter the marriage. You abused your power as her mother, as the person with whom she lived and respected, to override her desire not to marry Mr Halimi. Whilst you believed you were acting in her best interests, you were not in fact doing so.[84]
[83]Reasons, [90]–[91].
[84]Reasons, [92].
The judge did not accept that the present was a low-level instance of offending. The judge characterised the applicant’s offending as ‘mid-range’. Such characterisation was made on the basis of the ‘type of pressure that was put on [the daughter], by whom, and [the daughter’s] age and circumstances’.[85]
[85]Reasons, [93].
The judge ultimately sentenced the applicant to the penalty described above.

Grounds of appeal

The applicant’s proposed grounds of appeal, as filed, are as follows:
Ground 1
The judge erred in finding that s16A(2A) Crimes Act 1914 (Cth) prevented the judge from taking into account in mitigation of penalty and in reducing the applicant’s moral responsibility “…..your personal history and that you were acting in what you thought were your daughter’s best interests”: Sentence [61].
Ground 2
The judge erred in failing to consider the murder of [the daughter] as a form of extra-curial punishment: Sentence [85].
Ground 3
The judge erred in finding that the prosecutor’s characterisation of this instance of the offence of forced marriage was mid-range: Sentence [93].
Ground 4
The judge erred in finding that “Having regard to the maximum penalty, the nature and gravity of the offence, the strong need for general deterrence, and your circumstances, I consider that any sentence other than imprisonment, with a period of time actually to service [sic], would be manifestly inadequate.”: Sentence [96].
Ground 5
The sentence is manifestly excessive.
Ground 6
The judge erred in failing to have regard to the exercise of the discretion of mercy.
Ground 7
The judge erred in failing to take into account, pursuant to section 16A(2)(p) Crimes Act1914 (Cth) the probable effect the sentence of imprisonment will have upon the applicant’s family and dependents.
Ground 8
The factual basis on which the judge sentenced the applicant was wrong. [The daughter] was not aged 15 at the time of a previous marriage but was aged 17.
At the hearing of the matter the applicant filed a further proposed ground of appeal. That proposed ground is in the following terms.
The Court should receive the following new evidence and act upon it to avoid a miscarriage of justice:
1.The Affidavits of Muhammed Taqi Haidari dated 4 September 2024 and 9 September 2024;
2.       The Affidavits of Imam Alijan Noori dated 9 September 2024;
3.       The Affidavit of Ms Leah Perkins dated 13 November 2024; and,
4.       The Report of Dr Danny Sullivan dated 30 September 2024.
In broad outline, the first of the Haidari affidavits referred to in point 1 of the proposed added ground describes difficulties experienced by the applicant’s family that have arisen since the applicant was imprisoned. The second of the Haidari affidavits referred to in point 1 and the Noori affidavit (referred to in point 2) are directed to establishing that, as a matter of fact, the applicant’s daughter was aged 17 rather than 15 when her earlier marriage ceremony was conducted. These affidavits suggest, also, that the applicant’s daughter was not in fact ‘bewa’ in the period that elapsed after the earlier marriage ceremony had taken place. Ms Perkins (referred to in point 3 of the proposed added ground) is a legal practitioner experienced in immigration law. In her affidavit she gives a detailed outline of, inter alia, the applicant’s current immigration status, the applicant’s prospects of being deported and the likelihood of the applicant being detained in an immigration facility after her release from service of her current 12-month minimum term. The gravamen of the report of Dr Sullivan (referred to in point 4 of the proposed added ground), relied upon by the applicant, is a diagnosis made of the applicant to the effect that she is now said to be suffering from chronic, moderate to severe, Post-Traumatic Stress Disorder.
As the argument developed at the oral hearing of this matter, it became evident that the applicant was not seeking to rely on all of the new evidence referred to in the proposed added ground of appeal as material that might give rise to a miscarriage of justice. It was clarified, for example, that the evidence suggestive of the applicant’s daughter being only 17 at the time of her first marriage, and not suffering thereafter the status of ‘bewa’, was only relied upon if this Court allowed the applicant’s appeal, quashed her sentence, and then proceeded to re-sentence. The adoption of this position by the applicant effectively disposed of any need to consider proposed ground 8.
The respondent objected to the tender of the new evidence the subject of the proposed added ground of appeal. Given the manner in which I would decide this case, it is strictly unnecessary for me to determine whether any of the new evidence now relied upon by the applicant is admissible on the appeal. Were I called upon to decide the question of admissibility, however, I would reject the submission that this new evidence is admissible. I should explain, briefly, why this is so.
The difficulties experienced by the applicant’s family described in the first of the Haidari affidavits were tethered, in argument, to proposed ground 7. But proposed ground 7 cannot succeed. The evidence of difficulties experienced by the applicant’s family concern events that have occurred post-sentence that are said to make the sentence imposed excessive. In that sense that evidence does not demonstrate the true significance of facts in existence at the time of sentence.[86] No sufficient case was established at the plea concerning the probable effect that any sentence or order under consideration would have on any of the applicant’s family or dependents so as to make this evidence admissible. To the extent that the evidence of these difficulties can be said to reflect back upon the true significance of facts in existence at the time of sentence, I consider that those matters would have been well within the contemplation of the sentencing judge.
[86]Dong v DPP (Cth) [2016] VSCA 51, [24] (Whelan and Coghlan JJA).
Nor would I admit the Perkins affidavit. Insofar as this affidavit describes the termination of the applicant’s visa and the threat of the applicant’s deportation, I do not consider that this evidence materially advances matters much beyond what was known at the plea. Insofar as the Perkins affidavit opines concerning the potential for the applicant to be detained in immigration detention beyond service of her minimum term, it is necessary to note that this affidavit concludes in the following manner:
As such, it is difficult to speculate on [the applicant’s] fate if her visa is not reinstated. At best, she may be granted a protection visa which would allow her to remain in Australia as a permanent resident. At worst, she may be released into the community on a bridging visa R with restrictive conditions or potentially removed to a third country.

As is apparent, Southwood J, in determining whether the defendant in that case was able to rely upon the affidavit evidence in order to base a finding that would have the effect of reducing the defendant’s moral culpability, was required to give content to the phrase ‘criminal behaviour’ found in the ER Act. Southwood J concluded that to the extent that ‘customary law or cultural practice’ might lessen the seriousness of such behaviour it could not be taken into account. As can be seen, Southwood J treated ‘criminal behaviour’ and the ‘gravity or objective seriousness of a crime’ as essentially interchangeable, or synonymous, concepts. In order to give content to the latter concept, Southwood J drew upon the reasoning of the New South Wales Court of Criminal Appeal in Way.
It can be seen that the approach of Southwood J in interpreting s 91 of the ER Act was, in the end, the same as the approach adopted by the present sentencing judge when it came to the application of s 16A(2A). Southwood J cited the NSW Court of Appeal decision of Way in support of the approach that his Honour adopted. In attempting to understand whether Southwood J was correct to reason as he did, it is necessary to give some consideration to Way.
The NSW Court in Way was required to interpret div 1A of pt 4 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and, in particular, the phrase ‘an offence in the middle of the range of objective seriousness’.[112] An offence of this nature would attract a ‘standard non-parole period’. The NSW Court was thus obliged to give content to the meaning of the ‘objective seriousness’ of an offence for the purposes of the relevant legislation. The NSW Court did not consider, in this regard, ‘that the exercise which is required will differ, to any material extent, from that which has always been necessary in evaluating the objective seriousness of a subject offence’.[113] Their Honours considered that the process of reasoning, to this end, appeared to depend upon
a combination of sentencing experience, which is based upon the range of instances which go to make up cases of the relevant kind that come before the courts, combined with an understanding of the facts which are necessary elements of the offence, as well as those which are concerned with its consequences, and the reasons for its commission.[114]
[112]Way, [60], [72]–[102] (Spigelman CJ, Wood CJ at CL and Simpson J).
[113]Ibid 185 [77].
[114]Ibid 185–6 [79].
The NSW Court in Way noted that the sentencing case law is ‘replete with references to objective features of the offence and subjective features of the offender’,[115] and that it had ‘not hitherto been necessary to classify a factor as one or the other’.[116] Nevertheless, the NSW Court in Way considered that it was ‘now necessary to construe the words “objective seriousness” of an offence’.[117] The NSW Court then offered the following construction:
The multiplicity of purposes of sentencing set out in s 3A of the Act, quoted above, do not suggest a narrow perspective as to the range of facts and matters that are to be regarded as ‘objective’ facts and matters which may affect the judgment involved in assessing ‘seriousness’. It is too narrow a perspective to confine attention to the physical acts of the offender and their effects, as those acts or effects could be observed by a bystander. The inquiry which we consider to have been intended is one that would take into account the actus reus, the consequences of the conduct, and those factors that might properly have been said to have impinged on the mens rea of the offender (see for example R Fox and A Freiberg, Sentencing, 2nd ed (1999) South Melbourne, Oxford University Press, at pars 3.506 to 3.510).
Some of the relevant circumstances which can be said ‘objectively’ to affect the ‘seriousness’ of the offence will be personal to the offender at the time of the offence but become relevant because of their causal connection with its commission. This would extend to matters of motivation (for example duress, provocation, robbery to feed a drug addiction), mental state (for example, intention is more serious than recklessness), and mental illness, or intellectual disability, where that is causally related to the commission of the offence, in so far as the offender’s capacity to reason, or to appreciate fully the rightness or wrongness of a particular act, or to exercise appropriate powers of control has been affected: Channon v The Queen (1978) 33 FLR 433 and R v Engert (1995) 84 A Crim R 67. Such matters can be classified as circumstances of the offence and not merely circumstances of the offender that might go to the appropriate level of punishment. Other matters which may be said to explain or influence the conduct of the offender or otherwise impinge on her or his moral culpability, for example, youth or prior sexual abuse, are more accurately described as circumstances of the offender and not the offence.
Questions of degree and remoteness arise which will need to be developed in the case law. There are potential areas of overlap. For example, impaired mental or intellectual functioning can go to either, or both, the seriousness of the offence and punishment, so far as deterrence is concerned.
In an assessment of the objective seriousness of the subject offence it seems to us that attention must accordingly be given to the factors mentioned above. Some of these relevant factors will be elements of the offence itself. Others will fall within the list of aggravating and mitigating factors referred to in s 21A(2) and (3) of the Act, so far as they relate to purely objective considerations.[118]
[115]Ibid 186 [84].
[116]Ibid.
[117]Ibid.
[118]Ibid 186–7 [85]–[88].
The source of Southwood J’s approach is apparent. If the reasoning in Way is correct then there is further support for the approach of Southwood J and, by extension, the approach adopted by the sentencing judge to the interpretation of s 16A(2A) in the present case.
But in 2011 the High Court, in Muldrock, effectively overruled Way. The error committed by the NSW Court, according to the High Court, was to characterise the relevant legislative provision that required a sentencing court to ‘set’ the standard non-parole period, unless determining that there are reasons for not doing so, as being framed in ‘mandatory terms’[119] which would require the court to ‘commence by asking whether there are reasons for not imposing the standard non-parole period’[120] and to proceed to an ‘assessment of whether the offence [in respect of which sentence is being imposed] is within the midrange of objective seriousness’.[121]
[119]Muldrock, 131 [25] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
[120]Ibid.
[121]Ibid.
The identification of this particular error, whilst obviously somewhat distant from the particular issue under consideration here, required the High Court to at least give some consideration to what is meant by an offence’s ‘objective seriousness’. The High Court went on to observe that to the extent to which the standard non-parole period provided a ‘legislative guidepost’, of which a sentencing court was to remain ‘mindful’,[122] this
requires that content be given to its specification as ‘the non-parole period for an offence in the middle of the range of seriousness’. Meaningful content cannot be given to the concept by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending.
…
The standard non-parole period represents the non-parole period for an hypothetical offence in the middle of the range of objective seriousness without regard to the range of factors, both aggravating and mitigating, that bear relevantly on sentencing in an individual case.[123]
[122]Ibid 132 [27].
[123]Ibid 132 [27], 133 [31] (emphasis added).
The High Court observed that
[a]n offence of sexual intercourse with a child aged under ten years falling within the middle of the range of objective seriousness has a standard non-parole period of fifteen years. That circumstance says little about the appropriate sentence for this mentally retarded offender and this offence. The Court of Criminal Appeal erred by treating the provision of the standard non-parole period as having determinative significance in sentencing the appellant.[124]
[124]Ibid 133 [32].
The High Court in Muldrock noted that in the instance of an offender with an intellectual disability there will often exist a causal relationship between the offender’s mental illness and the commission of the offence which operate to ‘substantially lessen the offender’s moral culpability for the offence’.[125] The High Court observed that
[i]n this case, there was unchallenged evidence of the causal relation between the appellant’s retardation and his offending.[126]
[125]Ibid 139 [54].
[126]Ibid 139 [55].
In its elucidation of the meaning to be attributed to the notion of ‘the objective seriousness of an offence’ the High Court in Muldrock may be thought to cast some doubt upon the reasoning of the NSW Court in Way. To that extent a shadow may equally be cast over the reasoning of Southwood J in Wunungmurra and, in turn, perhaps even the approach adopted by the present sentencing judge in her application of s 16A(2A).

Analysis

The point of this — no doubt overly long — excursus, is to suggest that insofar as the notion of ‘criminal behaviour’ in s 16A(2A) of the Crimes Act may be considered correlative with an offence’s ‘objective seriousness’, then to the extent that ‘customary law or cultural practice’ may provide a motivation for an offender to commit an offence, and thus operate so as to lower that offender’s moral culpability, such law or practice may constitute a ‘matter personal to a particular offender or class of offenders’.[127] On this analysis, the ‘customary law or cultural practice’ would stand outside the ‘objective seriousness of an offence’ and could be factored into account by the sentencer in order to reduce an offender’s moral culpability despite the terms of s 16A(2A).
[127]Ibid 132 [27].
And yet there is still something intuitively appealing about Southwood J’s correlation of ‘criminal behaviour’ with the ‘objective seriousness’ of an offence even when the analysis commences with the text.
The language of s 16A(2A) defines ‘criminal behaviour’ to include the physical and fault elements of an offence; that is to say, the matters on account of which an offender becomes criminally liable in the first place — the offence’s actus reus and mens rea. Section 16A(2A) prevents a court from taking into account any form of customary law or cultural practice ‘as a reason for … excusing, justifying, authorising, requiring or lessening the seriousness of’ the physical acts and mental state which attribute guilt at the threshold.
The words ‘excusing’, ‘justifying’, ‘authorising’, and even ‘requiring’, if taken at face value, seem to signify an attachment to guilt or liability. But this cannot be so, obviously enough. But read in tandem with the definition of ‘criminal behaviour’, those words do appear — by dint of their natural meaning — to moderate what might reasonably be described as the ‘objective’ features of an offence.
There then follows the phrase ‘lessening the seriousness of’. Looked at in isolation this expression may be thought readily enough to extend into the realm of the personal. As a matter of natural expression or use a person might say, for instance, that another’s criminality is ‘less serious’ on account of that person’s lower moral culpability. But this phrase need not be understood in such a manner. When examined, in context with the terms ‘excusing’, justifying’, ‘authorising’ and ‘requiring’, and also read with the definition — already described — of ‘criminal behaviour’, it would be perfectly reasonable to understand the phrase ‘lessening the seriousness of’ as something that stands also in qualification of an offence’s objective features.
An alternative reading of s 16A(2A), which precludes an offender relevantly from making a case for lowered moral culpability, as Southwood J observed, ‘distorts well established sentencing principle of proportionality, and may result in the imposition of what may be considered to be disproportionate sentences’.[128] It may be thought that had Parliament wished to bring about such a fundamental change to the law of sentencing, clearer language of necessary intendment would be forthcoming. But language of this nature has not been employed.
[128]Wunungmurra, 185 [25].
It is perhaps convenient to note that a submission made in mitigation of penalty, which appeals to ‘customary law or cultural practice’, need not entail a plea for leniency on account of an offender’s lowered moral culpability. The defence advocate may simply want the sentencing court to accept that the offending is objectively less serious because its commission entails the performance of a customary duty or cultural rite that is of venerable, or perhaps antique, provenance; and which is one that enjoys general acceptance across a significant cross-section of the community. A submission of this nature no doubt chafes up against notions of equality before the law; but it may be accepted that — from time to time — submissions in mitigation of this type are made. It is not as if a reading of s 16A(2A) which is confined in its operation to an offence’s ‘objective seriousness’ (in the Muldrock sense) and thus permitted of lowered moral culpability would not have any work to do.[129]
[129]For identification of a submission of this nature, one need look no further than Hales v Jamilmira (2003) NTLR 14; [2003] NTCA 9. The offender in this case pleaded guilty to, inter alia, one charge of unlawful sexual intercourse. The victim of the offence was 15. The offender was aged 49 at the time of the offence. The offender had penile/vaginal intercourse with the victim. The victim tried to leave the offender but the offender fired a weapon into the air which had the effect of persuading the victim not to leave. The offender claimed that his acts were ‘culturally appropriate’; he felt an ‘injustice at the inability of the law to accommodate traditional Aboriginal law and culture’. In mitigation of penalty it was submitted, beyond simply contending that the offender had lowered moral culpability, that as a matter of objective fact the offender’s act of sexual intercourse with the victim ‘was not inconsistent with the standards of his community and, to the contrary, was conduct that was positively encouraged within that community’: at 44 [75] (Riley J).
Such an interpretation of s 16A(2A) would still allow, in an appropriate case, an offender’s ‘cultural background’ (as that phrase, hitherto, was understood when it took its place in s 16A(2)(m)) to be relied upon if it were thought that such a background provided a basis to lessen an offender’s moral culpability.
An interpretation of s 16A(2A) which relevantly permitted of lowered moral culpability, as already indicated, is consistent with the general purposes of the amendments brought into effect by the Crimes Amendment (Bail and Sentencing) Act which were, as the then Federal Attorney-General identified in his Second Reading Speech, calculated to ensure equal treatment under the law. It is not usually said of an offender who is able to rely on reduced moral culpability because of customary law or cultural practice (or for any reason, for that matter) that they have been unequally treated under the law. The more expansive reading of s 16A(2A) thus sits at odds with the purpose that the amendments were meant to achieve.
The more confined reading of s 16A(2A) which would permit a lessening of an offender’s moral culpability because of customary law and cultural practice is a reading that sits more comfortably with that section’s text, context and purpose. It is a reading that would permit the young indigenous offender, who lives in a remote bush community, who has had little or no exposure to ‘white-fella’ law, but who has relevantly adhered to his or her ‘customary law or cultural practice’ to contend for lowered moral culpability when it comes to sentence. It is a reading that would have permitted the applicant, to the extent that she offended believing that as a matter of customary law or cultural practice she was doing the right thing by her daughter, to submit that her moral culpability ought also be seen as lessened.
The sentencing judge considered that she was precluded from accepting this submission on account of the terms of s 16A(2A) of the Crimes Act. With great respect to her Honour, for the reasons that appear above, I consider that this was in error.

Conclusion

The issue whether or not the applicant could have her moral culpability lessened on account of customary law or cultural practice was presented for resolution by the sentencing judge in the present case. This arose in view of the respective cases mounted by each of the parties. I consider it plain that the sentencing judge felt herself precluded from accepting the defence position due to the construction that her Honour placed upon the terms of s 16A(2A). I consider that the sentencing judge erred in so construing the section and that such error was material. Had the judge not reasoned as she did, greater significance would have been attributed to the applicant’s lesser moral culpability. I would, therefore, uphold ground 1.

Ground 5

Submissions

As recorded above, grounds 2, 3, 4 and 6 were argued as particulars of this proposed ground of appeal.
It was argued that counsel on the plea was incorrect not to have relied on the death of the applicant’s daughter as extra-curial punishment. The net effect of this, so it was argued, was that the sentencing judge failed to accord adequate weight to the effect that the death had had upon the applicant. It was put, also, that in failing to characterise the death of the applicant’s daughter as extra-curial punishment the sentencing judge overvalued the importance of general deterrence. In this respect it was submitted that if the judge had properly appreciated that the deceased’s death amounted to extra-curial punishment then it would have occurred to the judge that, in large part, the simple fact of the deceased’s death operated to deter generally and there would be no need to increase the applicant’s sentence for this purpose.
It was submitted that in circumstances where the applicant had suffered the devastating loss of her daughter, but where this fact in no manner aggravated the applicant’s culpability; where the applicant’s background was characterised by deprivation (she having been raised with little or no formal education, she having lost her father, husband, brother and sister to the Taliban and then enduring 13 years in a refugee camp in Pakistan); where she was a woman who had reached middle-age with no prior convictions; where there had been a 5-year delay between the commission of the offence and the imposition of sentence; and, very importantly, where the prosecution did not submit to the sentencing judge that it was necessary for the applicant to be actually sent to prison; in all these circumstances — so it was submitted — the sentence imposed upon the applicant was manifestly excessive.
The respondent submitted that to the extent that, under the terms of the Crimes Act, it was necessary to take into account the deceased’s ‘personal circumstances’, this was a neutral matter ‘in the scheme of things’. Nevertheless, it was submitted — as had been submitted on the plea — that it was entirely appropriate for the judge to have factored into account the deceased’s death as a reason why the applicant ought on account of general deterrence receive a heavier sentence. The respondent did not cavil with many of the matters relied on by the applicant but submitted that, in view of the legislative purposes motivating the introduction by the legislature of the present offence, the sentence imposed upon the applicant — whilst ‘firm’ — was nevertheless within range and thus not manifestly excessive.

Analysis

In order to establish manifest excess, the applicant must show that something went obviously, plainly or badly wrong in the exercise of the sentencing discretion.[130] The test is a stringent one. The question to be asked is whether the sentence imposed was wholly outside the range of sentencing options available to the judge.[131]
[130]Ayol v The Queen[2014] VSCA 151, [30] (Maxwell P), quoting Clarkson v The Queen(2011) 32 VR 361, 384 [89] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA); [2011] VSCA 157.
[131]R v Abbott(2007) 170 A Crim R 306, 309–10 [13]–[15] (Maxwell P, Eames JA agreeing at 312 [22], Habersberger AJA agreeing at 312 [23]); [2007] VSCA 32.
I take little persuading that the sentence imposed upon the applicant was manifestly excessive. The maximum sentence that could have been imposed was 7 years imprisonment. The applicant received almost half that period.
Entering into marriage is regarded by many as a significant and meaningful step in a person’s life. The offence of which the applicant was found guilty is directed to the preservation of an individual’s autonomy when taking this important step. In committing the instant offence the applicant curtailed her daughter’s freedom to choose whom she would marry, or whether she would marry at all. Indeed, the sentencing judge found that the applicant had placed ‘intolerable pressure’ upon — indeed, had actually ‘coerced’ — her daughter to marry Mr Halimi. The applicant did this in the full knowledge of her daughter’s opposition to this proposed course. The pressure placed upon the daughter emanated, at least in part, from the daughter’s state of relative cultural isolation and her desire not to upset the applicant.
But the present offence is directed not merely to the maintenance of a person’s autonomy in making such an important decision. It is directed also to the protection of persons against what the legislature has determined to be the serious risks that associate themselves with marriages which are forced or coerced. In view of these risks it is to be expected that general deterrence will play an important role in the sentencing of offenders who commit the instant offence.
But when it comes to those risks, perhaps the worst of such risks became a reality in this case. The daughter’s murder by Mr Halimi was an important factor in the present sentencing exercise; but how was the daughter’s death properly to be taken into account? It may not be idle, in this respect, to surmise as to the counterfactual and ask whether, had the applicant’s daughter not been murdered by Mr Halimi, would the applicant have received a sentence anything like the sentence that she received?
The judge, in her sentencing reasons, observed that the applicant was not to be sentenced for Mr Halimi’s acts and ‘nor is it in any way suggested that [the applicant] had foresight that [Mr Halimi] would murder [the applicant’s daughter]’. The judge concluded that the applicant ‘had no reason to think that Halimi would murder [the daughter]’.[132]
[132]Reasons, [63], [85].
These findings reflected the manner in which the prosecution put its case in this respect. In written submissions relied upon on the plea, the prosecution contended that the death of the applicant’s daughter ‘is not to be seen as aggravating the Offender’s level of culpability’. The judge was required, in accordance with s 16A(2)(d) of the Crimes Act, to take into account ‘the personal circumstances of any victim of the offence’. Consistent with the submission that the daughter’s death did not aggravate the applicant’s culpability, as well as the judge’s finding that the applicant ‘had no reason to think’ that Mr Halimi would murder her daughter, prosecuting counsel agreed at the hearing of the appeal that ‘the personal circumstances’ of the daughter, insofar as they were required to be taken into account pursuant to s 16A(2)(d), were ‘rather neutral … in the scheme of things’.
But it was agreed by all that the applicant’s grief at the loss of her daughter was a significant matter that could be taken into account in mitigation of penalty whether characterised as extra-curial punishment or otherwise. There emerged, however, a significant difference between the parties when it came to the importance of the daughter’s death and the death’s potential relevance to general deterrence.
As has already been extracted above,[133] when it came to this matter the prosecutor submitted on the plea that the daughter’s death ‘strengthen[ed] the need for general deterrence’, or ‘support[ed] a strong need for general deterrence’ notwithstanding the death’s ‘mitigating benefit’. As the prosecutor put it:
I don’t say for a moment that they count each other out; the need for general deterrence is far stronger than any mitigating benefit the offender receives as a consequence of the psychological distress she is now in, as a result of her daughter’s death.
[133]See [99] above.
If, perhaps, it was thought that in the absence of the daughter’s death a sentence of the present magnitude was unlikely, then such a conclusion throws into stark relief these submissions made by the prosecutor. This is so because, absent these particular submissions, given the manner in which this case was presented below, the daughter’s death operated only as a mitigatory factor. It was the prospect that the sentencing judge in imposing the sentence must have adopted the approach advocated by the prosecutor that then led to the submission made on the applicant’s behalf on the appeal that it would have been improper for the judge to have increased the applicant’s sentence on account of the need for general deterrence as a result of the daughter’s death.
I consider that, whether characterised as extra-curial punishment or otherwise, there can be no doubt that the judge took into account the mitigatory effect of the daughter’s death insofar as the death had caused the applicant significant grief. The daughter’s death, and the effect that it had upon the applicant, was a powerful matter in mitigation of penalty. The only manner in which it was submitted by the prosecution that the death of the applicant’s daughter might operate to increase penalty was that it ‘strengthen[ed] the need for general deterrence’ and that this need was ‘far stronger’ than the mitigatory effect of the death upon sentence. If such an approach was correct as a matter of principle, then it might have explained why, had the daughter not been murdered, the applicant might not have received the sort of sentence that she in fact did.
I cannot, however, accept that the bare fact of the daughter’s death ‘strengthen[ed] the need for general deterrence’ and that this need in effect outweighed the mitigatory effect that flowed upon the death. I agree with the submission made on the applicant’s behalf that anyone in the community, who found themselves in a position similar to the applicant and was contemplating causing their child to enter into a coerced marriage, but who became apprised of the facts of the present case and thus learned of the fate of the applicant’s daughter, would likely be deterred from going forward with the plan. This is not to suggest that the need for general deterrence did not arise at all in the circumstances of the present case. For at least the reasons suggested above[134] general deterrence still remained an important sentencing consideration. But it is difficult to accept that the simple fact of the daughter’s death significantly increased the need for general deterrence, or if it did, that this need was ‘far stronger’ than the death’s mitigatory effect.
[134]See [190] above.
The present ground of appeal is not one of specific error, and, as such, the ground simply requires the Court to assess whether the sentence imposed is within range. It is necessary thus to examine the nature and length of the sentence in light of the sentencing judge’s findings. One need not dwell unnecessarily upon submissions that were made in argument below. But in considering the importance of the daughter’s death to the overall sentencing exercise, it might be important to record (for the purposes of this analysis) that the only relevance of the daughter’s death to the overall sentencing equation was that it formed a powerful matter in mitigation.
It is unnecessary to pursue this inquiry any further. At least on the assumption that the death of the daughter was a powerful matter in mitigation of penalty, whether characterised as extra-curial punishment or otherwise, and that the death would by its own force carry with it a deterrent effect of a general nature, I am unable to see how the present sentence reflects the mitigatory effect of the daughter’s death, or, indeed, the deprived and unremittingly difficult background that was suffered by the applicant.
Despite the importance of the need for general deterrence when it comes to protecting a person’s autonomy in taking the important step to marry, and the need also to protect against the potentially dire risks to which a person who has been coerced into marriage is exposed, I would in the circumstances of this case uphold the applicant’s contention that the present sentence is manifestly excessive.

Conclusion

That leaves the sentence that I would impose upon the applicant in substitution for the sentence that has been appealed. In my view it was simply not open to the sentencing judge to send the applicant to prison. I was firmly of that view when this appeal was heard, and my view has not changed.
Had I been the sentencing judge at first instance, and had I been disposed to give the applicant the full benefit of a claim for lowered moral culpability based upon what I have decided is a correct understanding of s 16A(2A) of the Crimes Act, I would have acceded to the submission made by defence counsel and imposed a community correction order. Even had I taken the view of s 16A(2A) adopted by the sentencing judge, and found myself precluded from giving the applicant the full benefit of lowered moral culpability, I still would not have sent the applicant to prison. I would in such a circumstance (as the prosecutor conceded was open in this case) have imposed a term of imprisonment with the effect that the applicant become eligible for immediate release on recognisance.
The fact is however that the applicant, even by the time of the hearing of this matter, has spent months in actual custody. She has, in my view, been punished far beyond what was proportionate having regard to all the circumstances. In these circumstances it would be unjust to impose upon her a sentence as if she were being sentenced for the first time. In view of these circumstances, which I consider to be exceptional, I would if so much was permitted — pursuant to s 72 of the Sentencing Act 1991 — convict the applicant and adjourn her matter for a period of 12 months on her undertaking, inter alia, to be of good behaviour. It appears that this may be a disposition permissible by virtue of the terms of ss 20AB(1)–(1AA)(a)(viii) and (b) of the Crimes Act. As I am in the minority, however, beyond making it clear that I would release the applicant from prison, it is unnecessary that I come to a concluded view concerning the precise nature of any sentence that I would impose upon the applicant.

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[2025] VSCA 43

21 March 2025