R v Najibi - [2015] VSC 260

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CI 2014 0005

THE QUEEN

WAHID NAJIBI

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JUDGE:	EMERTON J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2015
DATE OF SENTENCE:	10 June 2015
CASE MAY BE CITED AS:	R v Najibi
MEDIUM NEUTRAL CITATION:	[2015] VSC 260

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Incitement to murder – convicted after trial – offender’s previous good character – parity considerations – good prospects of rehabilitation.

Sentence: Eight years – minimum four years and nine months

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S Borg	Office of Public Prosecutions Victoria
For the Accused	Mr T Hoare	Melasecca Kelly and Zayler

HER HONOUR:

Wahid Najibi, you have been found guilty of one count of incitement to murder, in that between 1 January and 14 February 2012 you incited an associate, Mr Thorn Johnstone-Brown, to murder Ahmad Keshtiar.

The maximum sentence for incitement to murder is life imprisonment.

The circumstances of your offending are complex and involve your family’s position as part of the Afghani diaspora here in Victoria. You and your immediate family arrived in Melbourne as refugees in 1996 when you were eight years old. You are all of the Muslim faith.

Your immediate family is part of the extended Najibi and Mirranay families, which apparently now numbers over 200 people here in Melbourne.

It is customary in families such as yours for marriages to be arranged, often between close family members.

In 2005, when you were about 17 years old, your father and mother visited the home of your father’s older brother, Mahboob Najibi, to propose marriage on your behalf to one of his daughters, Zahida. On that same day, relatives from the other side of the family also made a proposal for Zahida’s hand in marriage. Both proposals were refused. At this point in time, Zahida was still at school. She subsequently completed school and enrolled at university.

In 2006, Zahida met a man from outside the extended Najibi and Mirranay families, who was also a member of the Afghani community in Melbourne, Ahmad Keshtiar. She and Ahmad began a secret relationship.

In early 2008, your father and mother again attended Mahboob’s home and proposed that you and Zahida be married. On this occasion, the proposal was accepted, apparently without Zahida’s knowledge or consent. Zahida was most upset when she learned what had occurred and let it be known that she did not wish to proceed with the marriage. Nonetheless, a ceremony called a ‘destmal’ took place which involves the parents of the bride-to-be offering a special cloth filled with sweets and money to the parents of the proposed groom and constitutes an acceptance of the marriage proposal.

Some months later, in mid-2008, Zahida participated in a lavish engagement party organised and paid for by your parents. Zahida did this, she said, to relieve the pressure to marry immediately so that she could buy time to work out how to marry Ahmad Keshtiar instead. In the months leading…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Najibi

Details

AGLC: R v Najibi [2015] VSC 260
Case: [2015] VSC 260
Decision Date: 10 June 2015

CaseChat Overview and Summary

The case of R v Najibi involved the defendant being convicted after a trial for incitement to murder. The court was required to determine the appropriate sentence for the defendant, taking into account various factors including the defendant's previous good character, parity considerations, and the good prospects of rehabilitation. The primary legal issue was the determination of an appropriate sentence that balanced the seriousness of the offence with the mitigating factors presented.

The court considered the defendant's previous good character, which was a significant mitigating factor. Additionally, the court acknowledged the defendant's good prospects of rehabilitation, which suggested that a substantial sentence might still facilitate the defendant's reintegration into society. The court also took into account parity considerations, ensuring that the sentence was proportionate to similar cases. After weighing these factors, the court determined that the defendant should receive an eight-year sentence, with a minimum non-parole period of four years and nine months.

Given the mitigating factors and the defendant's prospects of rehabilitation, the court concluded that an eight-year sentence was appropriate. This sentence allowed for sufficient punishment while also providing an opportunity for the defendant to rehabilitate and reintegrate into society. The final orders of the court included the defendant being sentenced to eight years in prison, with a non-parole period of four years and nine months.

Orders