R v AR

[2024] NSWDC 307

District Court

New South Wales

Medium Neutral Citation:

R v AR [2024] NSWDC 307

Hearing dates:

31 May 2024

Date of orders:

21 June 2024

Decision date:

21 June 2024

Jurisdiction:

Criminal

Before:

Grant DCJ

Decision:

The offender is convicted and sentenced to 25 months imprisonment. The offender is to serve 12 months in custody and then to be released on a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) upon giving surety (without security) in the sum of $100, on condition that he be of good behaviour for 2 years.

Catchwords:

s 271.2(1A) Criminal Code Act 1995 (Cth) – “Exit trafficking” – offender and victim married – victim on partner visa – offender motivated to ‘return’ victim to Afghanistan because of tension between his mother and victim – deceives victim into travelling to Afghanistan on false premises and then abandons victim there – victim able to return to Australia – multiple acts of deception – lack of remorse – serious offending – significant breach of trust – need for denunciation – custodial sentence warranted

Legislation Cited:

Crimes Act 1914 (Cth)

Criminal Code Act 1995 (Cth)

Cases Cited:

Bravo v R [2015] NSWCCA 302,

DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194

Faehringer v R [2017] NSWCCA 248

R v CGT [2017] NSWCCA 163

Mills v R [2017] NSWCCA 87

Saddler v R [2009] NSWCCA 83

Stanley v DPP [2023] HCA 3

Xiao v R (2018) NSWLR 1

Zheng v R [2023] NSWCCA 64

Texts Cited:

Commonwealth, Parliamentary Debates, Senate, 8 December 2004 (Chris Ellison, Senator)

Category:

Sentence

Parties:

Rex (Crown)
AR (Offender)

Representation:

Counsel:

Mr D Renton SC (Crown)
Ms S Talbert (Offender)

Solicitors:

Ms S Lo (CDPP)
Ms C Velasquez (Offender)

File Number(s):

2019/00213971

Publication restriction:

Non-publication order in respect of the names of the offender and victim in respect of any material that may identify them.

JUDGMENT

INTRODUCTION

1. The offender, AR, is an Australian resident and citizen. He migrated to Australia as a refugee in 2008. He resides with his mother and brother. There was an arranged marriage between the offender and the victim. The offender travelled to Afghanistan for the marriage which took place on 9 June 2014. The victim remained in Afghanistan. In March 2017, the victim was granted a partner visa. The offender was her sponsor. On 29 March 2017, she arrived in Australia and resided with her husband, mother-in-law and brother-in-law. The relationship between the victim and her mother-in-law deteriorated.

2. On 15 December 2017, the offender’s mother told him that she no longer wanted to live in the house with the victim. Thereafter, the offender engaged in deceptive conduct to have his wife returned to her village in Afghanistan, including booking a one-way ticket to Afghanistan for his wife and arranging for a false itinerary to be created to display a return flight. The couple arrived in Kabul on 28 January 2018. The victim continued on to her village. The offender remained in Kabul. On 30 January 2018, the offender left Kabul and returned to Australia. He left his wife behind and withdrew his sponsorship of her partner visa.

3. The offender pleaded guilty to an offence of facilitating the exit of a person from Australia by deception, contrary to s 271.2(1A) of the Criminal Code Act 1995 (Cth) which has a maximum penalty of 12 years’ imprisonment. The maximum penalty is an important guide in the assessment of sentence. The Commonwealth submit an immediate term of imprisonment is required. Ms Talbert, public defender, submits that the threshold has not been crossed. She submits that in the alternative, if it has, the sentence should not exceed two years and should be served in the community.

THE LEGISLATION

4. Section 271.2(1A) provides:

“A person (the first person) commits an offence of trafficking in the person if:

(a) The first person organises or facilitates the exit or proposed exit of another person from Australia; and

(b) The first person uses coercion, threat or deception; and

(c) That use of coercion, threat or deception results in the first person obtaining the other person’s compliance in respect of that exit or proposed exit.

Penalty: Imprisonment for 12 years.”

5. The offence is pleaded that:

“Between 1 January 2018 and 27 January 2018 at Merrylands and elsewhere in New South Wales, [AR] facilitated the exit of another person, namely EO, from Australia and used deception and that use of deception resulted in obtaining EO’s compliance in respect of that exit.”

6. During the relevant Second Reading Speech, Senator Chris Ellison remarked that:

“Australia has a moral obligation to ensure that it has every possible measure in place to fight the trade in human beings and investigate and prosecute traffickers.

The bill is a significant step, it ensures Australia meets and actually exceeds its obligations under the United Nations protocol to prevent, suppress and punish trafficking in persons, especially women and children.

Once this bill is passed, the Australian government will be able to meet its commitment to ratify the protocol.

The offences ensure that all aspects of trafficking in persons are criminalised in Australia - from the use of deception to recruit a trafficking victim, through the transportation of a victim to Australia through the use of threats, force or deception, to receipt and exploitation of a victim.”

7. The offender, by his guilty plea, formally and publicly admits his guilt in respect of the elements of the offence. The victim was induced by the offender’s deception to leave Australia. A domestic relationship existed between the offender and the victim. The conduct of the offender was exploitative and deceptive towards a vulnerable victim, involving a significant breach of trust. He treated his wife as a chattel that could be discarded.

GENERAL PRINCIPLES OF COMMONWEALTH SENTENCING

8. In proceeding to sentence, the Court is required to have regard to the matters set out in part IB of the Crimes Act 1914 (Cth) which provides procedural guidance on sentencing offenders who commit Commonwealth offences. In particular, the Court should have regard to the matters set out in s16A. However, part IB does not intend to cover the field and is not intended to operate as a code. s16A(2) sets out a number of matters the Court must take into account if relevant. The sentence must be severity appropriate in all of the circumstances of the offence. The Court must not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances of the case: s17A.

FACTS

9. Exhibit 1 contains an agreed facts document which I summarise as follows.

10. The offender, AR, was born on 29 April 1980 and was 38‑years of age at the time of offending and 44‑years at the time of sentence. He was born in Afghanistan. He migrated to Australia in 2008 as a refugee and resided with his mother and brother. The victim, EO, was born on 26 May 1989 and was 28‑years of age at the time of offending. She was also born in Afghanistan and resided there until 2017. She was a high school teacher.

11. The offender and the victim married in Afghanistan on 9 June 2014 following an arrangement by their parents. The offender lived and worked in Australia at the time. In March 2017, EO was granted a partner visa. A condition of her visa was that she continue to be sponsored by the offender. On 27 March 2017, EO arrived in Australia and resided with the offender, his mother and brother in Merrylands.

12. The relationship between AR’s mother and the victim broke down. On about 15 December 2017, AR’s mother told him she did not want to live in the house with the victim anymore.

13. In January 2018, the offender asked the victim to accompany him to Afghanistan for a charity trip. He told her she could stay in Mazar-i-Sharif and visit her family for a couple of days until he finished his duties in Kabul and then joined her. The next day, the victim asked the offender’s mother why he was sending her to Afghanistan, and the offender’s mother replied that it was because she did not want EO to stay in the family home while the offender was not there. EO told the offender she was concerned this trip was arranged to return her to Afghanistan permanently. He reassured her there was no such arrangement and that it would be good for her to visit her family. She believed him.

14. On 23 January 2018, he had a text message conversation with the victim’s mother, KO, in the Dari language which was translated to English. KO sent the offender messages to the effect that her daughter was unhappy to go to Afghanistan, that her and the victim’s father, HO, were happy to receive them, but if they came in the proper way. She told him her daughter was unhappy and that she did not pick her children up from the street and that she cared for them. She advised him that he was the man of the house, that he should try to content both his wife and mother, that his wife is not a doll to buy, and that marriage is not a joke. He responded that she should not worry and that he and the victim would visit them as guests.

15. Two days later, the offender attended a travel agency in Granville and booked a return ticket to Kabul for himself and a one-way ticket for his wife to Kabul and then for a domestic flight to her hometown of Mazar-i-Sharif. The offender requested the travel agency produce a false itinerary for his wife showing a return flight and they prepared the document as requested. The offender showed the itineraries to his wife the next day. When she raised concern that the stopovers in his itinerary were different from hers, he told her it was a typing mistake, and the correct itineraries were going to be emailed to him so he could show her.

16. EO packed enough items for a two or three-week trip. She left the rest of her possessions at the Merrylands residence. The offender’s mother had told her to take everything she owned with her. EO also packed the offender’s bag. He told her to pack their belongings separately as they would be splitting up in Kabul. They departed Australia on 27 January 2018 and arrived in Kabul the next day. En-route the offender sent the victim’s mother pictures of him and the victim which the Crown described as “happy”. EO continued onto Mazar‑i‑Sharif to visit her family as planned and the offender remained in Kabul.

17. On 29 January, the victim attempted to contact the offender while she was in Mazar-i-Sharif to confirm he was safe and ask him when he was going to join her. On 30 January, the offender boarded a flight returning to Australia via Delhi and Bangkok. On 31 January, the victim sent the offender several messages and voice messages from her mother’s phone. They show her asking if he is okay and inquiring about when he will leave Kabul to join her, telling him to be careful and look after himself and that she just wanted to check what he has been up to because she worried about him. He responded that he could not talk at the moment. She told him that Kabul is unsafe and asked him to call her once he got a ticket to Mazar-i-Sharif so she could go to the airport to greet him.

18. On 1 February, the offender arrived in Sydney. The victim left him several missed calls that day. There are messages showing her asking him to ring her, asking when he will come and that it had been four days and she was worried.

19. On 2 February, the offender wrote a letter to the Department of Home Affairs advising that he had withdrawn his sponsorship of EO’s partner visa, that their relationship had broken down, they were no longer living as husband and wife and EO had returned to Afghanistan as of 27 January 2018.

20. This same day the victim had called the offender 24 times using her mother’s phone. She sent several messages which showed her asking if he is okay and that she was worried about him and asking him to call her. On 2 or 3 February EO called the offender’s mother. The offender’s mother asked to speak to the victim’s mother, KO. The victim put her mother on the phone and put it on speaker. The offender’s mother told KO, “We divorce, divorce, divorce your daughter.” On 3 February, the victim’s mother, KO, sent the offender three messages as follows:

“Hope God will punish you tonight, you can sleep next to your mother.

Respond to my phone, why are you so scared, I cannot reach your heaven in Australia. I feel sorry for you that you do not have the choice to select your partner even. [redacted]’s daughter had some vitamin deficiency, you have killed your own daughter, it means you will not have mercy on my daughter.

You are so coward; you never respected our relationship.”

21. This same day, EO contacted the travel agency in Granville and asked for her flight details to be changed. She was told she had a one-way ticket and it had been sent to the offender’s email. The victim’s mother, KO, contacted her relative in Australia, BH, who was a social worker. BH looked up EO’s visa status which was still valid. EO received financial assistance from her family in Afghanistan and booked a ticket back to Australia. On 4 February, she boarded a flight bound for Sydney with a relative and arrived the next day. She stayed at the home of a relative of her mother’s, NH.

22. On 6 February, EO attended Auburn Police Station and made a report. In March 2018, the AFP received a referral after the victim alleged the offender had deceived her into returning to Afghanistan with the intention of cancelling her visa and leaving her there.

23. On 27 March, the AFP executed a search warrant of the offender’s premises in Merrylands and located a number of EO’s personal belongings, including a New South Wales ID card in her name, located in the offender’s wallet.

24. The offender was cautioned and participated in an interview where he said the following.

1. That it was the victim who requested to go to Afghanistan to visit her family and that she wanted him to go with her because she was lonely, and it was her first trip back there.

2. That he and EO spent three or four nights together in Afghanistan before she flew to her hometown and that she told him he could return home and she would come back by herself.

3. That he had a good relationship with his wife, that he booked a one-way ticket for EO because he was unaware that she would come back, but anticipated she would return some time in February 2018 because she was due to begin English classes.

4. The he kept EO informed about his discussions with the travel agency.

5. That he did not accompany EO to her hometown because he had to return for work, and he had several family members there that would have to buy gifts for.

6. That two days after he came back to Australia he heard his mother having a telephone conversation with the victim’s mother, KO, where she said her daughter did not want to live with him anymore. He said this came as a shock because he thought everything in his marriage was going well, that he wanted to reconcile his marriage with EO.

7. Lastly, he seemed to admit that he sent the letter to the Department of Home Affairs advising he wished to withdraw his sponsorship of EO’s visa.

VICTIM IMPACT STATEMENT

25. A victim impact statement of EO, dated 8 March 2024 was read to the Court by the solicitor for the Commonwealth. The offender’s conduct has had a significant impact on the victim as set out in her victim impact statement. She has been left “...traumatised, fearful and untrusting...” and has experienced substantial emotional trauma requiring significant therapy and treatment.

s16A(2)(a): NATURE AND CIRCUMSTANCES OF THE OFFENDING

26. The offending was not spontaneous, it was planned. It involved multiple acts of deception on the part of the offender towards the victim who was his wife and who placed considerable trust in him. The offender concocted a pretence for him and the victim to travel to Afghanistan because his mother no longer wanted the victim to reside at her home. He arranged for a fabricated travel itinerary to be created, showing a return trip for the victim which he presented to the victim to continue to assure her that she would return to Australia. When she raised concerns, he fabricated a further story to continue his deception of the victim.

27. He abandoned her in Afghanistan and took steps to prevent her from returning to Australia by contacting the Department of Home Affairs seeking to withdraw his sponsorship of the victim's visa while she was still overseas. The offender had a detailed and pre-meditated plan to remove the victim from Australia through a multi-faceted deception and abused the victim’s trust.

28. Ms Talbert conceded that there was planning and deception involved in this offence, but submitted I would find the offending fell below the mid-range of objective seriousness considering,

1. the lack of financial benefit to the offender,

2. that the victim was not separated from any children in Australia and was returned to her family overseas as opposed to another scenario,

3. the victim did not spend a considerable amount of time in Afghanistan, and

4. threats, coercion and deception are inherent elements of this offence and this offender’s conduct involved only deception with a complete absence of threats or violence.

29. The fact that it is possible to identify factors which are absent which, if present, would have made the offence more objectively serious does not make the offence less serious: Mills v R [2017] NSWCCA 87, R A Hulme J at [57]:

“Reliance upon the absence of a factor is not a correct approach and needs to be rejected as Simpson AJA in Tindall v R [2019] NSWCCA 136 at [7] said, ‘It reflects an approach that has repeatedly been rejected by this Court dating back before 2009.’”

30. This principle is pithily expressed by Grove J in Saddler v R [2009] NSWCCA 83 when his Honour said:

“It is a well‑established common law sentencing principle that the absence of a factor which would elevate the seriousness of the offending in a particular case is not a matter of mitigation. In plain language it does not make what has been done by the offender less serious because it could have been worse.”

31. See also Bravo v R [2015] NSWCCA 302, R v CGT [2017] NSWCCA 163 and Faehringer v R [2017] NSWCCA 248.

32. The victim was living in a democratic country with equality between men and women. She was returned to an undemocratic country where there is inequality between men and women. The offender was prepared to re-expose his wife to the “scary and fear‑provoking environment of Afghanistan” as he described it to the psychologist (Exhibit A) and to deny her the “incredibly happy place” and “appreciative life” that he was having, himself, in Australia.

33. It was the support of her family and relatives in Australia that enabled the victim to return to this country, defeating the offender’s deception to cast her out and his attempt to cancel her visa. It is a serious example of offending.

s16A(2)(j), (2)(k): GENERAL AND SPECIFIC DETERRENCE AND NEED FOR ADEQUATE PUNISHMENT

34. General deterrence is of particular significance. It is an offence that would be difficult to detect. There was significant abuse of a relationship that should have been built on trust, through repeated deception. The offending involved the exploitation of a vulnerable victim for the offender’s own gain. He treated her as a spent chattel whose use-by date had expired.

s16A(2)(f), (2)(g): CONTRITION AND GUILTY PLEA

35. The offender pleaded guilty in the District Court on 13 October 2023. This followed the presentation of a fresh indictment by the Crown dated 27 September 2023. The Crown accepts that the late plea, “Has obviously saved the need for a trial and it saved the victim needing to give evidence.” The Crown submits that the applicable discount is between 10 and 15%.

36. The offender’s plea has facilitated the course of justice. I take into account the utilitarian value of the plea: Xiao v R (2018) NSWLR 1. The discount for the plea will be 15%.

35. When provided with an opportunity by the police to explain his actions, the offender was not truthful and provided a fanciful and blameless account of events. He showed no remorse or contrition for his actions and sought to mislead authorities about the true state of affairs. In relation to the report of Mr Borkowski, psychologist, dated 25 March 2024, I accept the Crown submission that:

“There is an absence of victim empathy in the report. There are clear concerns for the consequences of the punishment to be imposed, but there is no real remorse demonstrated to the victim and for the harm she has suffered.”

38. The offender maintained to Mr Borkowski that his motivation for taking his wife to Afghanistan was for her to have the opportunity to “have a clear mind and time to think about whether she wanted to come back with [him] or stay with her family.” He wanted her to make a choice of her own. The significance of the conduct, planning and deception sits at odds with the explanation given to the psychologist. It also sits at odds with what he told the police, that the trip was his wife’s idea to visit relatives who were unwell and that she had asked him to accompany her for that particular trip and that he was unaware of any disagreement in the marriage. This suggests a lack of candour and a lack of remorse. The explanations given to the psychologist reflect a failed attempt to downplay the seriousness of his offending.

s16A(2)(m): CHARACTER, AGE, ANTECEDENTS AND PHYSICAL OR MENTAL CONDITION OF THE PERSON

39. The offender is 44. He was 37 at the time of the offence. He has no criminal history. The report from Mr Borkowski comprehensively sets out the offender’s background. In addition, a report from the offender’s treating psychologist, Dr Reza Pishyar, dated 26 April 2024 sets out aspects of the offender’s background, previous psychological treatment and diagnosis and is referred to in Mr Borkowski’s report.

40. The offender was born in Afghanistan. His father, who was in the Afghanistan army, died in Afghanistan when the offender was a child. The offender completed high school in Afghanistan. Despite the political issues in Afghanistan at the time of his father’s death, his family relationships and upbringing were overall positive and stable. The offender migrated to Iran with his mother and four siblings when he was 18-years of age to escape the Taliban. He was unable to continue studying and worked in a factory making boxes to support the family. He moved to Australia with his family in about 2008 with the assistance of the United Nations and he is now an Australian citizen.

41. Prior to the offending, in about 2010, the offender sought psychological treatment from Dr Pishyar for symptoms of anxiety, depression and Post‑Traumatic Stress Disorder arising from his experience of relocating from Afghanistan and the death of his father. The offender has been gainfully employed throughout his time in Australia and currently runs a successful commercial painting business which he started and built himself. When he was charged with these offences, the offender spent four days in custody which affected him greatly.

42. He was released on stringent bail conditions which restricted his contact with his family and prevented him from living in the family home. These bail conditions were relaxed at the end of 2022. The offender currently lives with his mother and younger brother in a house in Merrylands which was bought by the family in 2016. He remains very close with his immediate and extended family.

43. Mr Borkowski diagnoses the offender as currently having Major Depressive Disorder and Generalised Anxiety Disorder, although he cannot make a diagnosis of Post‑Traumatic Stress Disorder. Mr Borkowski refers to two traumatic experiences the offender has faced and the impact those may generally have had on his psychological functioning.

44. Mr Borkowski refers to the factors underlying the offender’s current mental health status. These include the effect of the offender being charged with these offences, the protracted legal proceedings, the offender’s experience of custody and the effect of the offender’s bail conditions which deprived the offender of the ability to live in his own home with his mother and brother. He was unable to have meaningful contact with his mother for an extended period of time and was unable to provide support to her as she aged which caused him distress.

45. In relation to the offender’s mental state at the time of the offending, Mr Borkowski took into account the offender’s mental health background from 2010 as outlined by Dr Pishyar and the circumstances of the offending. These included the offender’s account to Mr Borkowski of intense conflict between his mother and new wife in their shared home and his feelings of loyalty towards his mother. His motivation for deceiving the victim about the context of her travel with him to Afghanistan was to stop the conflict and manage his loyalty to his mother in light of his early life experiences.

46. Mr Borkowski’s formulation is that the offender was ill-equipped to cope with the circumstances of domestic discord which re-activated his underlying depressive and anxious symptomology of which Dr Pishyar speaks. He states at page 9 of his report:

“Lacking the psychological mechanisms to cope with stress, anxiety and low moods he was experiencing and having ineffective problem‑solving or conflict resolution skills required to resolve the difficulties he was faced with, [the offender] resorted to a maladaptive problem‑solving approach leading to the matters currently before the Court.”

47. Ms Talbert submits on the opinion of Mr Borkowski, the offender’s mental condition did contribute to the commission of the offence in a material way, reducing the offender’s moral culpability. The psychologist’s report implies that a lack of appropriate coping problem-solving skills caused the offender to react in a maladaptive way.

48. Absent in the psychological report is any engagement with the facts. There was no engagement with the levels of deception, there is no engagement with the lies told in his interview. It is a recitation of what the psychologist was told without analysis.

49. What he did was to appease his mother at the expense of his wife. I do not accept that his mental condition contributed to the commission of the offence in a material way as understood in the DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194. What he told the psychologist about what he did and why he did it is part of the subjective matrix for me to consider. I accept that his experience in custody will likely be more difficult due to his limited English-speaking ability. Mr Borkowski says:

“Depending on the outcomes of [the offender]’s current matter and considering his lack of previous involvement in the criminal justice system, if he were to receive a criminal conviction and, in particular, a period of incarceration, a referral for further psychological assessment may be indicated to ensure he is able to adequately cope with the consequences of any penalties applied in this case. If a custodial sentence is the outcome of the offender’s matter, then wherever possible and within Corrective Services New South Wales’ policy he should be housed in a minimum-security setting. Due to his lack of prior involvement in the criminal justice system, the offender is potentially vulnerable in a custodial setting. This may be partially mitigated if he can be housed in minimum security.”

50. Mr Borkowski talks about psychological assessment. I accept that he has received treatment from Dr Pishyar. Clearly, there are inherent stressors associated with legal proceedings. Gaol is always onerous to someone who has not been to prison before.

s16A(2)(n): PROSPECTS OF REHABILITATION

51. Mr Borkowski assessed the offender’s general risk of reoffending as low. He has no prior criminal history. Mr Borkowski says he has no serious mental health issues, personality dysfunction, substance abuse disorder or gambling issues.

52. Ms Talbert submits that, on balance, the offender is a low risk of reoffending and has good prospects of rehabilitation. I accept that submission.

SENTENCE   

53. The proper approach to sentencing involves the weighing of all relevant factors in order to reach a conclusion that a particular penalty should be imposed. There are many conflicting and contradictory elements which bear upon the sentence to be imposed on an offender. The Commonwealth submit, having regard to the maximum penalty for the offence, the objective seriousness of the offence, the need for general and specific deterrence, the significant breach of trust and the need to unequivocally denounce this type of offending, the only appropriate sentence is a sentence of full-time imprisonment.

54. Ms Talbert submits that a custodial sentence is not warranted. She submits if the Court takes a different view, the Court should order the offender’s immediate release on entering into a recognizance to be of good behaviour. In the alternative, she submits that if the Court finds a custodial sentence is warranted, the term of imprisonment would not exceed two years and the Court should consider ordering that the sentence of imprisonment be served by way of an intensive correction order, applying the principles set out in Stanley v DPP [2023] HCA 3 and Zheng v R [2023] NSWCCA 64.

55. The maximum penalty of 12 years is an indication of how serious the offence is viewed by Parliament and the community. The maximum penalty carries with it an implicit instruction to courts that retribute of sentences with a focus on both specific and general deterrence are required. Retribution is the notion that reflects the community’s expectation offenders will suffer punishment. Instinctive synthesis is a method of sentencing by which the Judge identifies all the factors that are relevant to the sentence, discusses their significance and then makes a valued judgment as to what is the appropriate sentence given all the factors in the case.

56. The offending was not spontaneous and shows a degree of planning and pre‑meditation. There were multiple layers to the deception which included;

1. telling the victim he was going to Afghanistan for charity work and asking her to accompany him for that purpose,

2. when challenged by the victim as to the truthfulness of his reasons for the trip, he assured her that what he was saying was true,

3. a series of text messages between the offender and the victim’s mother after she raised concerns, depicting the offender seeking to assure her that his intentions are genuine,

4. the false itinerary document showing a return trip for the victim which, in fact, had not been booked,

5. showing the victim the document and again, assuring her, when challenged, as to the accuracy of the details,

6. sending happy photographs of the offender and the victim to the victim’s mother during the course of their travelling to meet,

7. communications between the offender and the victim after they arrived in Afghanistan where there was no suggestion of anything untoward, and

8. the writing of the letter upon his return to Australia withdrawing his sponsorship of her visa.

57. The offending is very serious. He treated his wife as an expendable chattel. It was a grave breach of trust between husband and wife. She was vulnerable. She was reliant upon his continued sponsorship. The exploitation and deceptiveness of the offender towards a vulnerable victim included a significant breach of trust. His conduct needs to be denounced and condemned. Women are entitled to feel safe. Women are entitled to trust their husbands and not be exploited for their husband’s own gain.

58. There is little, if any, contrition on the part of the offender. There is an absence of victim empathy in the report of Mr Borkowski. The offender has been subjected to strict bail conditions. He has been on bail since 12 July 2019. Until the end of 2022, those bail conditions included daily reporting. They also included no contact with his brother or mother. I accept that the bail conditions had a real impact on him psychologically and practically for three years. I take his onerous bail conditions into account in arriving at an appropriate sentence.

59. The offending is of such seriousness that a sentence of two years or less would be inadequate.

ORDERS 

60. The offender is convicted. The undiscounted sentence is 2 years and 6 months. The sentence discount is 15%. With rounding down, the sentence is 2 years and 1 month (25 months). The offender is to serve 12 months in custody and then to be released on a recognizance release order pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) upon giving surety (without security) in the sum of $100, on condition that he be of good behaviour for two years.

61. The offender has spent four days in custody. The 12 months specified to be served will be backdated by 4 days. The commencement date of the sentence is 17 June 2024. The offender will be eligible for release on 16 June 2025.

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Decision last updated: 25 July 2024