Jawad Qayyum v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0124

JAWAD QAYYUM	Applicant
v
THE KING	Respondent

---

JUDGES:	EMERTON P and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 January 2025
DATE OF JUDGMENT:	20 February 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 14
JUDGMENT APPEALED FROM:	[2024] VCC 6262 (Judge Hogan)

---

CRIMINAL LAW – Appeal – Attempt to pervert the course of justice – Family violence context – Applicant charged with family violence offences made telephone calls from prison instructing his brother to pressure his wife’s friend into making a statement in his favour and omitting any reference to him having arguments with his wife or beating her – Sentenced to 2 years’ imprisonment with a non-parole period of 1 year – Whether judge erred in sentencing the applicant on a factual basis different from that contained in the indictment which only referred to ‘arguments’ or prosecution opening which did not specifically refer to statement of wife’s friend – Whether failure of judge to notify applicant she would be sentencing him on an ‘aggravated factual basis’ denied him procedural fairness – Whether judge overstated objective gravity of offending – No error – Leave to appeal refused.

R v Formosa (2012) 36 VR 679, applied.

Baker (a pseudonym) v The Queen [2021] VSCA 158; Shiryar v The Queen [2022] VSCA 96;
R v Lowe [2009] VSCA 268; R v Healey (2008) 186 A Crim R 433; Fusca v The King [2024] VSCA 297, considered.

---

Counsel
Applicant:		Mr J O’Connor
Respondent:		Mr J Dickie
Solicitors
Applicant:	C Marshall & Associates
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

EMERTON P
J FORREST AJA:

Jawad Qayyum, the applicant, pleaded guilty in the County Court to attempting to pervert the course of justice (the subject offence). On 10 May 2024, her Honour Judge Hogan sentenced the applicant to 2 years’ imprisonment with a non-parole period of 1 year. He now seeks leave to appeal that sentence.
The applicant faced trial on a series of family violence offences committed against his wife, HB, set down for hearing in the Sunshine Magistrates’ Court in May 2021.
Whilst on remand for those charges in February 2021, the applicant made multiple telephone calls to his brother, Bilal, which form the basis for the subject offence. The underlying theme of the calls was the applicant’s instructions to his brother to pressure a potential witness, FM, a friend of the applicant’s wife, to provide a false account to police of the applicant’s relationship with his wife and his wife’s mental state.
Bilal, in accordance with the applicant’s instructions, made a series of phone calls and sent multiple text messages to FM — all designed to persuade her to give a false version of the applicant’s relationship with HB.
FM made a statement to police in March 2021 which described both the relationship between the applicant and HB as well as Bilal’s attempts to pressure her into altering her version of events. Her evidence was, self-evidently, an important part of the trial on the subject offence.
After being sentenced to a period of imprisonment for the family violence offences, the applicant was tried in the County Court for the subject offence — based on his instructions to Bilal in February 2021. The applicant pleaded not guilty to the charge.
In April 2024 and after the trial commenced with the prosecution opening, the jury was discharged without verdict. The applicant then changed his plea and pleaded guilty.
The applicant relies upon two proposed grounds of appeal: first, that the judge sentenced the applicant on a factual basis different to that contained in the indictment or the prosecution opening; and second, that the judge overstated the objective gravity of the applicant’s offending.
Neither of the proposed grounds is made out, and our reasons for refusing leave to appeal follow.

Background to the applicant’s offending

In order to understand the first ground, it is necessary to set out in some detail the background to the applicant’s offending.
The applicant is now 42 years of age and was born in Sialkot, Pakistan. In June 2006, he came to Australia and studied and worked here initially on a student visa, and later a bridging visa.
In December 2008, the applicant married HB in Pakistan. She moved to Australia to join her husband in November 2010. In March 2012, their daughter, Z, was born.
In approximately 2015, HB struck up a friendship with FM, who was also from Pakistan. The two became close friends and, over the ensuing years, FM also became acquainted with the applicant.
FM, in her sworn statement,[1] stated that over the ensuing five years she knew that the applicant’s relationship with his wife was acrimonious and involved many arguments. The applicant was also physically violent towards his wife. According to FM, she became aware of this as the result of several things, namely —
(a)observing marks on HB’s body which were consistent with violence;
(b)HB regularly telling her that the applicant had been violent towards her; and
(c)the applicant making multiple admissions to FM that he had been violent to HB and, at times, endeavouring to justify those actions.
[1]Dated 22 March 2021.
In April 2016, the applicant was charged with recklessly causing injury and unlawful assault of HB. The applicant pleaded guilty to the charges on 3 February 2017 in the Sunshine Magistrates’ Court where, without conviction, he was sentenced to an adjourned undertaking to be of good behaviour for 12 months. The applicant was also fined $1,000 and ordered to attend a men’s behaviour change program.
On 28 August 2020, HB reported to police that the applicant had assaulted their daughter, Z, and made a report of family violence. Z was taken to hospital for observation following this incident. A family violence safety notice was issued against the applicant naming both HB and Z as protected persons, and he was bailed to appear at the Sunshine Magistrates’ Court on 3 September 2020.
A few days after alleged assault, HB was admitted to hospital for a mental health episode and was diagnosed with Post Traumatic Stress Disorder. The prosecution brief recorded that whilst at hospital, HB revealed to a doctor that shortly after her arrival in Australia, the applicant had subjected her to weekly physical beatings, mental abuse, mental torment, threats of violence, and repeated shaming. The brief also recorded that HB said that the applicant had also coerced her into going to several doctors and instructed her to tell them she was hearing voices and had mental health issues, apparently to create records showing that she suffered from mental illness and schizophrenia in order to assist the applicant to obtain a protection visa.
On 3 September 2020, a family violence intervention order (‘FVIO’) was made against the applicant, and he was bailed to reappear at the Sunshine Magistrates’ Court on 1 April 2021.
Between 9 September and 20 November 2020, the applicant repeatedly contravened the terms of the FVIO by clandestinely making comments to his daughter during supervised contact by whispering to her that she should tell relevant authorities that she wanted to live with him, and asking her about what she had told child protection authorities. The applicant was ultimately arrested on 20 November 2020. He was charged with a number of offences including assault (multiple charges), intentionally causing injury, criminal damage, contravention of an interim FVIO, persistent contravention of a FVIO, and committing an indictable offence whilst on bail (‘the family violence charges’).[2]
[2]A number of other charges were later withdrawn.
The applicant’s bail was withdrawn, and he was remanded in custody until the hearing of the family violence charges which was fixed for 19 May 2021 in the Sunshine Magistrates’ Court.
It can be readily inferred that during the applicant’s time on remand, Victoria Police officers were preparing the case for the applicant’s trial and obtaining statements from relevant witnesses. FM was one of those witnesses.
Whilst in custody at Ravenhall Detention Centre the applicant was permitted to make phone calls which were monitored by what is known as the ‘Arunta’ system.
Between 11 December 2020 and 2 March 2021, the applicant made 35 calls to Bilal, who was residing in the United States, although only calls in the period between 4 and 22 February 2021 were relied upon in support of the charge of the subject offence. On numerous occasions in the relevant period (described in more detail below), the applicant instructed Bilal to pressure FM in relation to the contents of any statement she might make to police. In particular, the applicant instructed Bilal to tell FM not to mention ‘arguments’ between himself and HB; and not to write anything about beatings — or her observations of them.
Bilal contacted FM by both text and telephone on numerous occasions over a three week period in February 2021 — which formed the subject of this offence.
On 22 March 2021, FM swore a statement as to her observations of the applicant’s treatment of his wife, her interactions with him, and the subsequent contact she had received from Bilal. It is set out in more detail subsequently.[3]
[3]In the judge’s reasons at [11] it is stated that FM did not make a statement. However, within the depositions is a statement sworn by FM on the 22 March 2021 which covers both the family violence offences and the subject offence.
On 26 March 2021, the applicant was interviewed in relation to the subject offending.
On 19 May 2021, at the Sunshine Magistrates’ Court, the applicant pleaded guilty to family violence offences and was sentenced to 9 months’ imprisonment (he had served 180 days presentence detention) together with a Community Correction Order of 12 months which included treatment and rehabilitation conditions requiring the applicant to attend offending behaviour programs as directed, a men’s behaviour-change program, and an anger management program.
On 8 August 2021, the applicant was released from prison and immediately placed in immigration detention.
On 20 December 2021, the applicant was released from immigration detention.
On 10 March 2022, the applicant was charged with the subject offence: attempting to pervert the course of justice.
On 8 June 2022, at the committal mention of the subject offence, the applicant pleaded not guilty.
On 29 November 2023, the applicant pleaded guilty to charges of making and using a false document to the prejudice of another and committing an indictable offence whilst on bail for the subject offence. These charges related to the alteration of a National Police Check initially produced on 1 December 2016 setting out that at that stage the applicant had no criminal history, and subsequent use of the document for the purpose of obtaining employment. Without conviction, these charges were adjourned for a period of six months upon the applicant undertaking to be of good behaviour and making a donation of $750 to a charity specified by the Magistrate.
On 16 April 2024 (after various procedural hearings), the trial judge, Judge Hogan, commenced to hear pre-trial argument concerning the subject offence and a further charge of attempting to pervert the course of justice in respect of contact with another of the applicant’s brothers, Salman. This charge was subsequently abandoned.
On 18 April 2024, a jury was empanelled, but was discharged on the following day, after the prosecution opening.
On 22 April 2024, the applicant pleaded guilty to the subject offence.

FM’s statement

In her statement of 22 March 2021, FM set out details of her first meeting with HB in 2015 and the development of their relationship. She stated that early in their relationship, HB had told her that her husband beat and threatened her, and she had asked where she should go for help. Subsequently, over the next five or six years, and at least two or three times a week, HB would tell FM about her husband beating her.
FM stated that at different times she had seen injuries on HB, including blue/black bruising and red marks on her legs, shoulders and back resulting from the applicant beating her, including by throwing a cricket ball at her.
In either 2016 or 2017, FM first met the applicant.
FM stated that when she spoke to the applicant about HB’s injuries, he admitted hitting her, but blamed HB for provoking him into such action.
These admissions, according to FM, were made regularly, and the applicant would always make excuses for his behaviour.
Around 2016 onwards, Z (who was six or seven years old at the time) started to articulate to FM that the applicant was hitting her and her mother.
FM then summarised her account as follows:
Jawad has been hitting [HB] a lot, getting angry easily and swearing at her. I have been to their house many times after the beatings, too many times to remember them all. Mostly I would do this because one of them would call for me to help. And I tried to help the best I could, to respect them, but Jawad would never listen, and I have no control of what he would do to [HB] and [Z]. My reason I would go them was [HB] was calling me to come, asking for me to talk to Jawad to ask him not to hit her. She wanted me to try help the situation in their marriage so Jawad would stop his behaviour, and she tried to keep the marriage together.
In addition to describing the relationship between HB and the applicant, FM explained the phone calls and messages received from Bilal from December 2020 onwards. According to FM, Bilal clearly asked her to give a statement that would help the applicant and to include references to HB having mental issues.
FM’s statement was included in the depositions for both the family violence charges and the subject offence.

The indictment, the prosecution opening and the applicant’s plea

On the indictment, the applicant is charged with attempting to pervert the course of justice contrary to common law, with the following particulars:
[A]t Ravenhall in Victoria between the 4^th day of February 2021 and the 22^nd day of February 2021 with intent to pervert the course of justice, JAWAD QAYYUM engaged in conduct that had the tendency to pervert the course of justice in that he directed BILAL QAYYUM to contact [FM] in order to persuade [FM] to make a statement in favour of JAWAD QAYYUM, that did not include anything about his arguments with [HB].
A written prosecution opening on the plea was filed on 24 April 2024, as was a defence outline of submissions on the plea. On 26 April 2024, the judge heard the applicant’s plea. In the course of opening, the judge raised with the prosecutor an issue with the written prosecution opening insofar as it appeared to be missing references to beatings in a call on 11 February 2021. The judge then proceeded to read aloud the missing references (see underlined text at [50] below) and mark the written prosecution opening as Exhibit A, noting that it was to be amended to include those missing references.
The written prosecution opening (which was read aloud in the course of the plea hearing and as noted, was corrected by her Honour to include the missing text in the 11 February phone call) alleged that the applicant made 35 calls to Bilal between 11 December 2020 and 2 March 2021. The prosecution identified 10 of those conversations between the applicant and Bilal in February 2021 related to pressuring FM as to the contents of her statement to police.
The prosecution also identified a series of text messages from Bilal to FM on 5 February, 6 February, 7 February, 11 February, 12 February, 14 February, 15 February, 16 February, 17 February, 18 February, 19 February and 20 February — all related to the evidence she would give at the upcoming trial of the family violence offences.
In addition to the text messages, according to FM there were also phone calls and voice messages from Bilal during this period — although these are not referred to in the written prosecution opening.
In the amended written prosecution opening, details of both the phone calls from the applicant to Bilal and Bilal’s text messages to FM were set out. For the purpose of ground 1, it is only necessary to refer to a couple of these:
On 4 February 2020 [2021] at 11:34am, the Accused again called Bilal and spoke to him in Punjabi. During this conversation 2021, the Accused directed Bilal to ask [FM] to speak to police herself on his behalf. Specifically, the Accused told Bilal to tell [FM] not to mention that he and [HB] used to have ‘arguments’, but to say that he had been concerned about her health and had repeatedly asked her to go to the doctor with him. Had she done this, this would have changed the evidence before the Court in a way favourable to the accused.
…
On the 10th of February 2021, at 12:48pm the accused and his brother Bilal spoke again via telephone. The men again discussed [FM] making a statement and the details of what this statement should include. During this conversation, the accused stated:
“She has to say that I didn't see that he has beaten her. She has to write this in the statement that I never seen him beating her.”
On the 11th of February 2021, at 11:32am the accused and his brother Bilal spoke via telephone, with the conversation captured via the ARUNTA system. During the conversation, the accused again asked Bilal to contact [FM] to seek a statement from her:
Accused: When you reach home, call her. You should trying call her two- three times before going to sleep. You should call her, don’t message her’
Later in the same conversation:
Accused: Then say that “It will be really grateful of you if you can give some statement. That he was very concerned about her, about her health.” Right? “He used to say this, “She previously attempted to suicide.”
“She might would do such a thing again. This will make our daughter’s life ruined”.
Write such things. Alright?
You tell her that the girl will live an orphaned life even if she has a father.
You know well about what our society is like. You should talk such things with her.
Bilal: Okay
Accused: Alright? You tell her that the girl will live an orphaned life even if she has a father.
By saying such things, you should first try to get her sympathy from her. Then ask her at ease that if you can’.
Later in the same conversation:
Accused: Yes. Say her that, “You show some mercy on me.
You are a kind of my sister.”
Talk to her like this. By the way, she is very clever. But still, try if something can be done. Try to convince her if she can get ready to favour us.
Bilal : I am also a little afraid that she may give a small statement in your favour but can also writes in it that he used to beat her. Wouldn’t you get into more trouble with tbis [sic] ?
Accused : No, I am saying that when she will write the statement. When she starts giving the statement we will tell her not to write such a thing in it. If she mentions even a little about it.[4]
[4]The underlining reflects the addition of these lines to the amended written prosecution opening dated 26 April 2024.
As previously mentioned, there were messages from Bilal to FM which concluded with the following, which gives a sense of pressure being exerted by Bilal on FM:
On 19 February 2021, Bilal again messaged [FM], stating:
“Sister, they have laid further charges against Jawad.
Please think about the statement soon, otherwise he will remain inside” “For God’s sake”
On the 20th of February 2021, Bilal sent [FM] five messages from his phone The content of the messages was in Urdu and translated to English state:
“sis what do you think”
“please”
“their household will be destroyed and it’s going to be more empty, and both families will have bigger problems.
[Z]’s life is also going to be destroyed. Is there any bigger punishment than this for Jawad. He’s been inside more than 3 months”
“you think how the kids life will be without the parents”.

The judge reserved her decision and, as a result of discussion during the course of the plea, a further amended prosecution opening was filed on 7 May 2024 which included details of further text messages between Bilal and the applicant.

Sentence

On 10 May 2024, the judge sentenced the applicant to 2 years’ imprisonment, with a period of 1 year before becoming eligible for parole.[5] Her Honour declared a period of presentence detention of 14 days to be time reckoned as already served under the sentence imposed. Pursuant to s 6AAA of the Sentencing Act 1981, the judge declared that, but for the plea of guilty, she would have imposed a period of 2 years and 6 months’ imprisonment, with a non-parole period of 20 months.
[5]DPP v Qayyum [2024] VCC 626, [39] (Judge Hogan) (‘Reasons’).
The maximum penalty for this offence is 25 years’ imprisonment.

The applicant’s personal circumstances

The applicant was 39 years old at the time of the subject offending. He completed a Bachelor of Commerce in Pakistan before coming to Australia in 2006 where he commenced a Post-Graduate Diploma at Swinburne University though did not complete it.[6] He later completed a Diploma of Hospitality at private institution in Melbourne.[7]
[6]Reasons, [17].
[7]Ibid.
Following his arrival in Australia, the applicant had what his counsel described as ‘a good work history’ in various roles (assistant accountant, warehouse assistant, chef, pizza delivery driver, courier) until he was remanded for the subject offence.[8]
[8]Ibid.
His mother and three of his brothers live in Pakistan, whilst Bilal lives in the United States.[9] At the time of sentence, counsel submitted that the applicant was anxious to try to reconnect with Z and noted that he was part of the Muslim community in Melbourne and played cricket, although no further details were provided to the court.[10]
[9]Reasons, [22].
[10]Ibid.
No psychological reports were tendered at the plea.
At the time of sentence, the applicant was on a bridging visa.[11]
[11]Reasons, [17], [19], [20].

The judge’s reasons

The judge noted the significance of the applicant’s visa status in light of the operation of s 501 of the Migration Act 1958 (Cth). Given the applicant had previously been sentenced to a term of nine months’ imprisonment, a further sentence of three months or more would result in the applicant failing the character test and his visa being cancelled, though the Minister would retain a discretion as to whether or not to revoke the cancellation of his visa.[12] The judge accepted that the ‘considerable risk’ of deportation was relevant both because it may render any term of imprisonment more onerous and because any deportation would constitute an additional punishment as it would bring to an end any opportunity to settle permanently in Australia.[13] The judge noted that while it would be improper of her to impose a sentence in order to avoid the consequences of the Migration Act, she considered that the extra curial punishment by potential deportation was an important sentencing factor and took it into account as ‘a significant factor which should reduce the sentence imposed’.[14]
[12]Reasons, [20].
[13]Reasons, [21]–[22].
[14]Reasons, [22].
The judge made ‘some allowance’ for delay[15] and the anxiety occasioned by it, but noted that the prosecution case was a strong one and that, save for his application for a sentence indication on 24 August 2023, there was no evidence the applicant had offered to plead guilty at any time prior to when he did.[16]
[15]Between the time of being interviewed on 26 March 2021 and charged on 11 March 2022; further delays to accommodate the prosecution obtaining translations of the Arunta calls; and an adjournment request from the prosecution from 6 September 2023 to 16 April 2024.
[16]Reasons, [18], [22].
On the issue of remorse, her Honour did not find any evidence that the applicant had shown ‘true remorse or contrition’ for his treatment of either HB or FM. The only exception was his ‘very late’ guilty plea which, while it did have some utilitarian value in saving the cost of a new trial, should only result in a modest sentence discount.[17] Within this, the judge set out in some detail two character references which spoke of the applicant’s kindness and integrity, however she attributed ‘little weight’ to them on account of their being in ‘stark contrast’ to, and ‘not seeming to fit well’ with, his history of family violence offending, dishonesty offending, and offending whilst on bail.[18] Her Honour also noted that she had not been presented with any psychological reports to provide any explanation of the offending or evidence of remorse.[19]
[17]Reasons, [24]–[26].
[18]Reasons, [23]–[24].
[19]Reasons, [37].
The judge considered the applicant to be ‘highly morally culpable’ given the timeline of prior offending.[20] So much was acknowledged by the applicant’s counsel.[21]
[20]Reasons, [27], [32].
[21]Reasons, [27].
The judge later said in respect of the applicant’s prior offending: ‘to my mind, the totality of [his] criminal history demonstrates a person who has scant regard of the law in this country’.[22]
[22]Reasons, [37].
The judge referred to the ‘understandable’ sentiments expressed in the Victim Impact Statements of both HB and FM. HB wrote of her stress, anxiety, re-traumatisation and fear that the applicant would prevent the truth being known and would turn people against her as he had done previously; and FM wrote of feeling stressed, guilty, confused, pressured, afraid for herself, her family and HB, and fearful that the applicant’s friends would find out where she lived.[23]
[23]Reasons, [28]–[29].
The judge made a number of findings relevant to the gravity of the applicant’s offending:
•The ‘seriousness’ of the applicant’s offending lay in the ‘potential for harm’ which could have occurred had he succeeded in his attempt.[24] The applicant ‘sought to undermine and influence the outcome of the hearing of serious criminal allegations, as well, potentially, of [his] application for bail’ (albeit that it did not proceed).[25]
[24]Reasons, [30].
[25]Reasons, [33].
•It was ‘particularly grave because it was an attempt by [him] to prevent [HB] from achieving the full protection of the law’.[26]
[26]Ibid.
•Had he succeeded that would have left HB and Z even more vulnerable.[27]
•The case involved a ‘high degree of manipulation’ with a detailed strategy which was implemented over 14 days and was ‘persistent and insistent’.[28]
•Although there were no threats or violence involved, through ‘serious, calculated premeditated behaviour’ there was a ‘high level of emotional pressure put upon FM through a relentless barrage of messages from a person she had never previously met, who had been supplied with her mobile number’.[29]
•The effect of the ‘serious, calculated premeditated behaviour’ offending on FM.[30]
•The offending occurred in a family violence context and the applicant’s conduct ‘manifest[ed] a bullying and manipulative attitude’ towards two vulnerable women (a mindset conceded by the applicant’s counsel).[31] On this point, her Honour noted that:
Where these vulnerabilities exist within the context of family violence, our Court of Appeal has made it clear that the potential erosion of the physical and emotional safety of others is a very serious matter.[32]
•The subject offence occurred in circumstances where the applicant’s bail in respect of family violence charges had already been revoked for trying to manipulate Z in breach of the FVIO.[33]
•The applicant breached his bail in respect of the subject offence by further offending which involved deceit, namely the false document charge.[34]
[27]Reasons, [38].
[28]Reasons, [31].
[29]Reasons, [32].
[30]Ibid.
[31]Reasons, [36].
[32]Reasons, [36] citing Baker (a pseudonym) v The Queen [2021] VSCA 158 (‘Baker’) and Shiryar v The Queen [2022] VSCA 96 (‘Shiryar’).
[33]Reasons, [32].
[34]Reasons, [37].
In respect of sentencing principles, the judge noted that although the applicant was not to be punished again for the family violence charges about which he sought to have FM make a statement, ‘this is an offence which warrants denunciation, general deterrence and just punishment’.[35] Given the objective gravity of the offending, the judge found denunciation and general deterrence to be the predominant sentencing principles.[36] Further, the degree of planning and motive necessitated a sentence which placed ‘some emphasis’ upon specific deterrence.[37] In this, her Honour acknowledged that she also had regard to the fact that the applicant had completed a sentence of nine months’ imprisonment, a 12-month CCO (which included completion of a men’s behaviour change program for a second time), had been in immigration detention since release from prison,[38] and had not further offended since (though understood that the applicant did not know HB’s whereabouts).[39] She also acknowledged the ‘pro-social factor’ of his ‘reasonable work history’,[40] however regarded his prospects of rehabilitation as ‘guarded’ given the lack of evidence of remorse and subsequent offending in creating the false document to hide his criminal history, which occurred whilst he was on bail for the subject offence and still serving a CCO.[41]

Ground 1 — the judge amended the factual basis of the plea beyond the terms of the plea indictment and the prosecution opening

[35]Reasons, [33].

[36]Reasons, [38].

[37]Reasons, [34].

[38]Ibid.

[39]Reasons, [35].

[40]Ibid.

[41]Ibid.

The critical part of the judge’s reasons attacked by the applicant is as follows:
You tried to have [FM] produce a statement which was untrue by painting to the court a false picture of the type of person you were by deliberately omitting any reference to arguments between you and your wife and the fact that you had admitted to her that you had beaten your wife and, indeed, that she had seen marks from such beatings.[42]
[42]Reasons, [31] (emphasis added).
It was argued on behalf of the applicant that the plea of guilty related to the charge particularised in the indictment and the written prosecution opening (as expanded to include additional material requested by the judge) — and no more.
It was then said that there was no reference either in the indictment or in the written prosecution opening (as amended) to FM’s observations of marks consistent with violence or the admissions made by the applicant to FM about the beatings. Furthermore, the judge did not notify the applicant’s counsel, either during the plea hearing or prior to delivering sentence, that the applicant would be sentenced on this ‘aggravated factual basis’.
It was said that this was a matter of sufficient significance to require disclosure, especially so as there did not appear to be evidence in the depositions that the applicant sought to have FM omit the alleged admissions and circumstantial evidence from any statement she might make.
This, it was contended on behalf of the applicant, denied him procedural fairness. The applicant relied in particular upon the decision of this Court in R v Lowe.[43] In that case, this Court discussed the principles to be applied in relation to the material that could be relied upon by a judge in sentencing an accused and the accompanying requirements of procedural fairness:
[43][2009] VSCA 268 (Neave and Redlich JJA, Hollingworth AJA) (‘Lowe’).
The respondent referred the Court to R v Halden which, it said, supported the proposition that material contained in the depositions might properly be relied upon by the sentencing judge. That proposition, standing alone, is uncontroversial. But as was pointed out during the hearing of the appeal that decision, nearly 30 years old, needs to be considered in its context.
Since that time the usual practice at a sentencing hearing has changed. Now, it is more likely for a plea hearing to be heard on the basis of an agreed statement of facts (or statement of undisputed facts as it was in the present case) rather than on facts that could be found in the depositional material. Accordingly, a sentencing judge will often be required to inform the parties and invite submissions, if he or she intends to ‘go beyond’ those facts which have been agreed or are not disputed between the parties. That obligation will be informed by the principles of procedural fairness.
In sentencing, the judge is not fettered by the facts upon which the parties rely. The judge may seek further facts from either party or may indicate that he or she intends to rely upon facts additional to those which the parties have put the court so long as it is done in accordance with ordinary legal principles appropriate to a criminal trial. This Court in R v Mielicki endorsed the principles set out by Kirby P in R v Chow where his Honour said:
The judge may go behind the agreement of the parties as to the approach which they urge should be taken to the facts relevant to sentencing. But in that event, the judge must be careful to avoid the kind of procedural unfairness which is inherent in accepting a plea of guilty but then proceeding to impose a sentence upon a different factual substratum than that required by the essential ingredients of the offence and agreed between the parties when the plea was taken.
In addition to such procedural unfairness, the Court in Mielicki adverted to the further requirement that the offender be alerted by the judge to any proposed reliance upon facts - in that case contained in the depositional material - which went beyond the ambit of any agreed factual statement. That would enable any such material to be disputed or, indeed, would have given the applicant the opportunity to consider an application to withdraw his plea of guilty. In R v Duong the Court observed:
Procedural fairness requires that if a judge proposes to depart from an agreed statement of facts which has formed the basis of a guilty plea, and to rely instead upon facts which are not contained in, or to be inferred from, the agreed facts, the judge should inform the parties in order that they may be given a sufficient opportunity to challenge the material on which the judge is proposing to rely and, if appropriate, to withdraw the plea.
But as Mielicki and Duong illustrate, the judge is only required to make a disclosure of facts of sufficient significance - not every minor change he or she intends to make to the agreed facts. The relevant test in each case is whether fairness dictates such a disclosure before sentence is passed.[44]
[44]Ibid [14]–[18] (citations omitted).
For the following reasons, the applicant’s argument as to the narrow compass of the material the judge was entitled to rely upon should be rejected.
Lowe does not stand for a universal and inflexible principle that the judge is bound only by the facts contained in the indictment and prosecution opening. As is made clear in Lowe, the material available to a judge in determining an appropriate sentence varies depending on the circumstances of the case. If it becomes an issue, it is necessary to examine all the circumstances in which the plea of guilty was entered.
It is not clear from a reading of the facts in Lowe as to how the plea came to be entered. In other words, whether there was any pre-trial argument or an opening of the case before the jury or what was to be made of the depositions.
Other cases make the point as to the necessity to examine the context in which the plea was entered. In R v Healey,[45] it was asserted that the judge had not alerted counsel on the plea to the fact that the judge desired formal proof of the appellant’s account of the circumstances of his conviction. Neave JA, after referring to the decision of this Court in R v Alexandridis,[46] said as follows:
In R v Storey this Court accepted the long-standing practice under which sentencing judges normally rely on statements made by counsel from the bar table, while accepting that there will be some cases ‘in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence’. It will normally be obvious when this is the case, either because the counsel for the Crown has contested a fact on which an offender relies in mitigation, or the offender’s counsel has submitted that facts relied upon by the Crown should not be taken into account as circumstances aggravating the gravity of the offending.
There may be some cases where the judge’s failure to alert defence counsel of his or her intention to draw inferences adverse to the defendant, unless the defendant calls additional evidence, is a breach of procedural fairness. Such a situation arose in R v Mielicki, where the sentencing judge took account of aggravating factors based on facts in depositions which were not included in the agreed statement of facts which provided the basis for the defendant’s guilty plea. It was held that the sentencing judge’s failure to warn the defendant’s counsel of what he intended to do amounted to a breach of procedural fairness, because it had prevented the defendant from disputing those facts, or considering whether his guilty plea should be withdrawn.[47]
[45](2008) 186 A Crim R 433 (Ashley and Neave JJA, Pagone AJA) (‘Healey’).
[46][2008] VSCA 126 (Buchanan, Nettle and Redlich JJA).
[47]Healey (2008) 186 A Crim R 433, 442–3 [44]–[45] (emphases added) (citations omitted).
More recently, in R v Formosa (decided after Lowe) this Court said as follows as to the principles on a contested plea:[48]
The legal principles which apply on a contested plea hearing are the following:
1.Conventionally, the Crown opening constitutes an agreed factual basis upon which a judge passes sentence.[49]
2.It is standard practice to use the depositions and related exhibits as the basic materials.[50]
3.Should either party seek to have the sentencing judge take any additional matter into account in passing sentence, it is for that party to bring the matter to the attention of the judge and, if necessary, call evidence about it.[51]
4.A contested factual assertion upon a plea must be proved by admissible evidence.[52] There is, however, no requirement that the evidence should all have been given on oath, or that there should have been a prior opportunity for cross-examination.[53]
5.A sentencing judge may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.[54]
[48](2012) 36 VR 679, 681–2 [8] (Whelan JA, Redlich JA agreeing at 680 [1], Osborn JA agreeing at 680 [4]) (emphasis added) (citations in original). Cited with approval in McCray (a pseudonym) v The Queen [2017] VSCA 340 (Maxwell P and Croucher AJA). See also Brooks v The Queen [2020] VSCA 93, [31], [37] (Tate, McLeish and Hargrave JJA); DPP v Walsh (a pseudonym) [2018] VSCA 172, [71] (Maxwell P, McLeish and Ashley JJA).
[49]Ashton v The Queen [2010] VSCA 329, [22]; R v LFJ [2009] VSCA 134, [3].
[50]R v Halden (1983) 9 A Crim R 30, 33.
[51]R v Olbrich (1999) 199 CLR 270, 281 [25].
[52]R v Rumpf [1988] VR 466, 471.
[53]R v Halden (1983) 9 A Crim R 30, 33–4.
[54]R v Storey [1998] 1 VR 359, 369; quoted and approved in R v Olbrich (1999) 199 CLR 270, 281 [27].
It is not necessary to reconcile differences between the approaches of the respective courts in the authorities. The short point is that context is critical in determining whether the material considered by the judge was properly able to be considered by her, and if so, whether the failure to refer counsel to the fact that it might be used amounted to procedural unfairness.

The applicant’s argument is fixed primarily on the use of the word ‘arguments’ in the indictment. That, it is contended, consequentially meant the judge was limited to considering only that conduct — that the applicant merely told his brother to instruct FM to say nothing about ‘arguments’ between him and HB.
FM was a vital witness capable of incriminating the applicant. Her statement, which formed part of the depositions, made it abundantly clear that she was told by HB of regular beatings inflicted upon her by the applicant, and that she had also seen evidence of such beatings upon HB’s body. She also refers to the applicant, on a number of occasions, admitting to her that he had inflicted such beatings.
The confined nature of the written prosecution opening as now portrayed by the applicant is misconceived. On two separate occasions in the written prosecution opening (see [50] above) there is specific reference to the applicant discussing with his brother the need for FM not to mention anything about HB being beaten by the applicant.
The judge’s reference in paragraph [31] is to FM being asked by the applicant (via Bilal) to provide a statement that omitted what she knew (and what the applicant well knew that she knew) about both the occurrence of the beatings and any detail in relation to the beatings, i.e. admissions by the applicant that he had beaten HB and observations of marks on HB from such beatings seen by FM — as described in her statement. The applicant and his counsel had read FM’s statement (within the depositions), the transcript of the Arunta calls, the written prosecution opening, and listened to the prosecutor’s opening address in the trial. They could have been under no illusion that the prosecution case was that in the applicant’s discussions with his brother he was trying to shut out FM from saying anything at all about his misconduct towards his wife — including beatings, not just ‘arguments’. And not mentioning anything about the beatings plainly carries with it not mentioning any admissions made by the applicant about the beatings or seeing the signs of such beatings on HB’s body.
On this analysis alone, we are comfortably satisfied that the applicant and his counsel must have been aware that the references in the written prosecution opening and within FM’s statement as to beatings included the detail referred to by the judge and were likely to be used by her in the sentencing task.
If there was any doubt about the situation, it was resolved by the discussion between the judge and the applicant’s counsel in the course of the plea, which was as follows:
MR SHAW: Well, perhaps I’m trying to dive [sic] this into two things; objective gravity and moral culpability, if I could. I don’t say it’s at the lowest end of gravity. I say it’s towards the lower end of what is a very — can be a very broad spectrum of offending. It’s attempt to pervert, not actually pervert but, as we know, that’s not – it’s still a (indistinct) offence. The actual offending itself was to ask her or to get her to not say anything about the arguments. Arguments obviously he means the violence for present purposes to not say. That’s what he’s been charged with.
Now all of the context of course goes I suggest more to his moral culpability and the fact that, as Your Honour points out, there was this ongoing strategy which he pursued over three weeks. It was three weeks. It wasn’t monthσ [sic]. It was three weeks, which is a significant period of time and he pursued that. That goes to his moral culpability, with respect, Your Honour, but the objective gravity was simply to get someone else to ask her when she made the statement to not say anything about the arguments and no doubt some thought went into the drafting of the indictment and that’s what he was charged with and that’s what he’s pleaded guilty to.
HER HONOUR: The arguments and beatings.
MR SHAW: Well, it’s - - -
HER HONOUR: The beatings are there. They’re there in black and white.
MR SHAW: Well, the word ‘argument’, I suppose, could be interpreted that way.
HER HONOUR: Well, - - -
MR SHAW: So, anyway, what I say is that the asking of a non — the asking — trying to get someone to talk to a witness who’s not the complainant to do that is towards the lower end without any threats, with some inducement as Your Honour has pointed out and what Your Honour referred to as emotional blackmail, that is less serious offending than, for example, if there were threats either to her or her family or something like that.
It went for three weeks and in the end it was abandoned. The scheme was abandoned.
As I said, it was done by text. It wasn’t done in a threatening way. There’s no blackmail, no force used, anything like that. So I’m not trying to minimise it. I’m just simply trying to put it where it belongs on the spectrum as a matter of objective gravity.
As far as Mr Qayyum’s culpability, obviously high. It’s his idea. He’s asked Bilal to do it and the Bilal reports back and they keep going. So his moral culpability is relatively high but the objective gravity of this particular instance of this offence is perhaps toward the lower end.
Counsel for the applicant on the plea did not submit in the course of this discussion, or at any other time, that the applicant’s conduct to be considered by the judge in the sentencing exercise did not extend beyond verbal arguments and that it was contested that there should be consideration by the judge of any reference to beatings (be they by admission of the applicant or observation of HB).
It is tolerably clear from this discussion that the applicant’s counsel understood that the judge was intending to sentence the applicant on the basis that his attempts to influence FM extended to omitting any evidence relevant to physical violence, as well as ‘arguments’.
Given that we are not persuaded that there was any denial of procedural fairness to the applicant, it follows that we need not consider any question of materiality.[55]
[55]See Nathanson v Minister for Home Affairs (2022) 276 CLR 80, cf Davey v The Queen [2010] VSCA 346, [29] (Redlich JA).
This ground fails.
Ground 2 — the sentencing judge overstated the objective gravity of the applicant’s offending
The applicant submitted that whilst the judge did not explicitly state the level of objective gravity of the applicant’s offending, her reasons nevertheless enabled a conclusion that she regarded the objective gravity of the offending as ‘relatively high’.
The applicant then argued, as he had on the plea, that the objective gravity of the offending was ‘towards the lower end’. On the plea, and before us, it was submitted that the absence of any threat of physical violence was a persuasive factor that militated against a finding of serious offending, as was the fact that this was a case in which the attempt to pervert the course of justice was in respect of a witness rather than the victim/complainant.
In this, the applicant, while conceding that there was some pressure put on FM ‘if nothing else by the volume of contact’, sought to rely upon a number of cases,[56] each of which involved attempts to pervert the course of justice constituted by pressure applied by a family violence offender to the victim of their offending as opposed to what counsel described as a ‘mere witness’.
[56]Eg. Dragovic v The King [2024] VSCA 95 (‘Dragovic’); Shiryar [2002] VSCA 96; Baker [2021] VSCA 128; and Mercer (a pseudonym) v The Queen [2021] VSCA 132 (‘Mercer’).
Counsel submitted that, as a general proposition, the offending will be more serious if directed against a domestic violence victim as it is a ‘continuation of controlling behaviour or otherwise seeks to directly exploit, retraumatise or take advantage of that victim or exploit existing power imbalances [created] by earlier offending’.
Counsel for the respondent argued that the sentences upheld in those instances, and in other cases concerning attempting to pervert the course of justice, do not indicate the sentence was outside the range of penalties available and that the absence of some aggravating feature does not mean it is a low-end example of an offence. In particular, counsel for the respondent drew the Court’s attention to the recent decision of this Court in Fusca v The King.[57] In that case, this Court dismissed an appeal against a sentence of 18 months’ imprisonment for attempting to pervert the course of justice in a family violence context involving five phone calls (and one attempted phone call) over five days made to a witness in which they were asked by the offender to remove and alter parts of their statement. The applicant in that case had breached a Community Correction Order but had no prior convictions for violence. The witness ultimately withdrew their statement. The Court found that the sentence was well within the applicable range, noting that in the past sentences of imprisonment of between two and four years have regularly been imposed for this offence.
[57][2024] VSCA 297, [45] (Walker and T Forrest JJA) (‘Fusca’).
We accept the first part of the applicant’s submissions on this proposed ground. The judge made no explicit finding as to the level of seriousness of the offending other than saying on a number of times that it was ‘serious’ offending.[58] Notwithstanding this, her Honour’s reasons[59] convey the distinct impression that she treated the applicant’s offending as being at the higher, rather than lower, end of the range.
[58]See Reasons, [30], [32], [33], [37].
[59]Reasons, [31]–[38].
However, we disagree with the submission that the judge ought to have found that the offending was less serious because it was directed at a ‘mere witness’. As set out above at [66], the judge took into account a number of factors including —
(a)The inherent seriousness of the offence of attempting to pervert the course of justice.
(b)The fact that it occurred in the context of family violence offending.
(c)That it was an attempt to undermine HB and her child from receiving the full protection of the law as victims of domestic violence,[60] and had it been successful, it would have left them even more vulnerable.[61]
(d)That the emotional pressure put on FM exploited her vulnerability in a family violence context and made her afraid for herself and her family, as well as for HB.[62]
(e)The conduct was ‘serious, calculated premeditated behaviour’[63] which was ‘strategic, systematic, persistent’.[64]
[60]Reason, [33].
[61]Reasons, [38].
[62]Reasons, [32], [38].
[63]Reasons, [32].
[64]Reasons, [38].
This Court has on a number of occasions stated, as a matter of principle, that an attempt to pervert the course of justice in a family violence context ‘is always a grave matter’.[65] In Baker (a pseudonym) v The Queen, this Court said as follows:
An attempt by a perpetrator of family violence to prevent a victim from seeking the full protection of the law and their physical and emotional safety is a very serious matter which calls for general deterrence and denunciation. While warranting distinct punishment, however, care must be taken not to punish the offender again for the offending which it was sought to conceal.[66]
[65]Shiryar [2022] VSCA 96, [38] (McLeish and Osborn JJA). See also Carter v The Queen [2020] VSCA 156, [70] (Niall and Weinberg JJA).
[66]Baker [2021] VSCA 158, [37] (McLeish and Osborn JJA).
None of the cases relied upon by the applicant advanced his position.[67] As acknowledged by counsel, the objective gravity of offending in a particular case turns on the facts unique to that case. It was not disputed, as far as we can tell, that each of the matters relied upon by the judge was relevant to a finding of serious objective gravity. It was well open to the judge to conclude — as she did — that the attempts to influence FM not only occurred in a family violence context but involved serious, calculated and repetitive conduct which inevitably would place great emotional pressure on FM and cause her fear.
[67]Dragovic [2024] VSCA 95, Shiryar [2022] VSCA 96, Baker [2021] VSCA 158 and Mercer [2021] VSCA 132.
The absence of threats of physical violence or the fact that the conduct was directed towards a close personal friend of the victim and not the victim herself, does not ameliorate the overall seriousness of the conduct of the applicant.
Indeed, as this Court said in Fusca:[68]
This Court has often said that ‘little benefit is to be gained from arguments which draw attention to the absence of aggravating features which might have been but were not in fact present in the offending before the court’.[69] Rather, sentencing judges are required ‘to assess the objective gravity of the offence, and the offender’s moral culpability, on the basis of what actually happened’.[70] The absence of aggravating factors does not reduce the objective gravity of the particular offending.[71]
[68][2024] VSCA 297, [45] (Walker and T Forrest JJA) (citations in original).
[69]Brown v The Queen [2021] VSCA 204, [28] (Maxwell P and Sifris JA) (‘Brown’).
[70]Brown [2021] VSCA 204, [28] (Maxwell P and Sifris JA).
[71]Adamson v The Queen (2015) 47 VR 268, 299 [83] (Warren CJ, Redlich and Weinberg JJA); [2015] VSCA 194. See also R v Conos (2021) 294 A Crim R 403, 414 [50] (Maxwell P, Kaye and Sifris JJA); [2021] VSCA 367.
Finally, while the applicant’s conduct in the present case was not an attempt to pressure the victim directly, HB’s Victim Impact Statement makes clear that the applicant’s conduct towards FM had the effect of retraumatizing her, notwithstanding that it was indirect.
There was no error on the part of the judge in finding that the offending was serious. This ground fails.

Conclusion

Leave to appeal should be refused.

[2025] VSCA 14

20 February 2025