MAB v R [2025] NSWCCA 171 | Case summary | Zoe

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MAB v R [2025] NSWCCA 171 | Case summary | Zoe

STERN JA: I agree with Sweeney J.
GARLING J: I agree with the orders proposed by Sweeney J in her judgment.
I also agree with her Honour’s reasons for dismissing Grounds 1 and 5 of the applicant’s proposed grounds of appeal.
Whilst I would also dismiss Grounds 2, 3 and 4 of the applicant’s proposed grounds of appeal, I would do so for reasons which differ from those expressed by Sweeney J.
In my view, the evidence before Traill DCJ was wholly insufficient to establish “**… any form of … cultural practice …” of a kind sufficient to fall within that description in section 16A(2A) of the Crimes Act 1914 (Cth).
The applicant, who had been in Australia since 2007, gave no evidence, either oral or written, of the existence, contemporaneously with his conduct, of any such cultural practice.
It was an agreed fact that the applicant had told police in a recorded interview that he considered it to be “… the duty of a Punjabi father to arrange the marriage of their children”.
Ms Allaw, a forensic psychologist, recorded in her report dated 22 June 2024, that the applicant told her that “… he felt it was his responsibility to get his children married”. He described to Ms Allaw that, based upon his “*… cultural upbringing, the father arranging his children**’*s marriage partner was considered to be the norm”.
Whilst Ms Allaw expressed a number of opinions about the applicant’s parenting style and the basis for engaging in the offending conduct, she did so because she relied upon the truth and accuracy of what the applicant told her. She was not, and did not hold herself out to be, an expert in any cultural practice in the Punjab region of Pakistan. The absence of any sworn evidence from the applicant averring to the truth of what he told Ms Allaw means that little weight can be placed on her opinion.
Mr Muhammad Riaz, a childhood friend of the applicant, provided a character reference dated 25 June 2024, which was tendered as part of the applicant’s case on sentencing. He said that the applicant and he had attended primary school together. Whilst he recorded what the applicant had told him about his offending conduct, he did not provide any material which identified the existence of, or the content of any cultural practice about the arranging of marriages. He was well placed to describe such practices. The tenor of his reference is to the contrary of any such practice. He described the applicant’s behaviour towards his children as “… strict and cruel …”. He described his own reaction upon hearing the news of the applicant being charged with these offences as being “in disbelief and awe”. These statements are inconsistent with the existence of a contemporaneous cultural practice of a father arranging marriages for his children who were aged 15 and 17 years respectively.
In the written submissions to the sentencing Judge, counsel for the applicant did not identify or articulate any finding of fact for which he contended as to the existence of, or the content of, any “cultural practice”. Other than drawing attention to what the applicant had told Ms Allaw during her consultation, as contained in her report, counsel did not identify the evidence which established any “cultural practice”.
In oral submissions to the sentencing Judge, counsel for the applicant drew attention to the agreed fact, which is referred to above, and submitted that “… these cultural practices which are tightly held …”, was a feature of the applicant’s subjective attitude to the offending.
Grounds 2 and 4 of the proposed appeal call up the description “… a cultural practice in the Pakistani community …”. The applicant’s submissions to this Court use this description:

The grounds of appeal and the submissions use these descriptions to advance a basis for reduction of the applicant’s moral culpability, which it was said was erroneously considered by the sentencing Judge.
But, in the circumstances here, when any such cultural practice was not found to exist as a matter of fact by the sentencing Judge, and was not, in any event, a finding sought by the applicant at sentence, and was not supported by any independent evidence of the existence of such a practice, there can be no possible criticism of the sentencing Judge’s approach to the sentence imposed here.
It is unnecessary for me to express any view as to the correctness of the decision of the Victorian Court of Appeal in Jan v Director of Public Prosecutions (Cth) [2025] VSCA 43 which I note was a majority decision.
As well, it is undesirable for me to do so in circumstances where counsel for the applicant on the appeal in this Court made submissions which could not be described as anything other than flimsy, attacking the correctness of the majority judgment in Jan, without even drawing this Court’s attention to the detailed reasoning of the dissenting judgment of Boyce JA.
Finally, I accept the Crown’s submission that having regard to the fact that Traill DCJ did take the applicant’s expressed attitude to the arrangement of marriages for his children as an ameliorating factor in the assessment of the applicant’s moral culpability, there is no need for this Court to express any view as to the correctness of the decision in Jan.
SWEENEY J: The applicant will be referred to as MAB, in accordance with s 15YR of the Crimes Act 1914 (Cth) (“Crimes Act 1914”), to preclude identification of his children who were the victims of his offences. He seeks leave to appeal against sentences of imprisonment imposed upon him by her Honour Judge Traill in the District Court on 4 October 2024 for two offences of attempting to cause a person under the age of 18 to enter into a forced marriage, contrary to ss 270.7B(1), 270.8 and 11.1(1) of the Criminal Code (Cth). Each such offence, being the aggravated form of the offence, has a maximum penalty of 9 years imprisonment. The victims of the attempted forced marriages were the applicant’s 17 year old son and 15 year old daughter.
For the offence in relation to the applicant’s son, the sentence, which incorporated a 25% discount for a plea of guilty, was 2 years and 3 months imprisonment, commencing on the date of sentence, 4 October 2024. For the offence in respect of his daughter, the sentence was 2 years and 6 months imprisonment, to commence on 4 August 2025. It also incorporated a 25% discount for the applicant’s plea of guilty. The overall effective sentence was 3 years and 4 months imprisonment. Her Honour fixed a single non-parole period of 1 year and 11 months, to expire on 3 September 2026, the overall sentence being due to expire on 3 February 2028.

In the Remarks on Sentence her Honour noted the following.
The offences occurred between 11 December 2021 and 4 February 2022. The applicant was 51 years of age and came to Australia from Pakistan in 2007. He is the natural father of the victims. He attempted to force his two children, his son aged 17 years and his daughter aged 15 years, into Islamic marriages.
The children were born in Pakistan and remained living with their mother in Pakistan after the applicant came to Australia in 2007. In December 2017 the children came to Australia to be with their father. Their presence in their father’s home caused conflict between him and his new wife and the children returned to their mother in Pakistan.
The children returned to Australia on 11 December 2021 to live with the applicant and his family. On arrival the applicant searched their bags, and took their passports, visa documents and mobile phones. Their contact with relatives was supervised. Otherwise they were not allowed to make phone calls or send messages. The applicant’s son secretly retained a SIM card.
The children were told they were not allowed to leave the applicant’s home in rural New South Wales. His daughter was not permitted to attend school; she was to remain at home to cook and clean.
The applicant told his son he was arranging a wedding for him. The applicant showed his son a photo of the intended bride and took him to buy clothes to wear in photographs to arrange the marriage. Neither child consented to marriage and they told the applicant they did not want to marry. The applicant threatened to deport them if they did not marry.
On 26 December 2021 the applicant’s nephew, aged 20, came to live with the applicant’s family. On 15 January 2022 the applicant took the children to a venue where they were photographed. The applicant sent photos to his nephew’s parents suggesting an arranged marriage between his nephew and his daughter. The nephew’s parents did not agree to the marriage so the applicant’s nephew left his home.
The applicant continued to attempt to arrange marriages for both his children. He sent pictures and messages to his sister asking for her assistance to arrange his daughter’s marriage. He made multiple calls to his sister and sent messages asking for photos of the intended bride for his son. He said he wanted to arrange the wedding directly. He said he wanted his children to marry into his clan. He spoke ill of his ex-wife and her sister and said he did not want her to match the children.
The applicant also spoke to his aunt’s daughter in an attempt to marry his daughter to her son. He sent his aunt’s daughter the photos taken of his daughter. He received images from his aunt’s daughter of a young man in a chemist store.
In late January/early February 2022 the applicant told his daughter that she would be the first to be married and that her prospective husband was running a chemist store in Pakistan. He told her that the Muslim religious ceremony would take place in early February 2022.
Fearing imminent marriage the applicant’s children used a mobile phone belonging to a half-sibling, when it was left unattended, to contact relatives in Pakistan. They told them of the imminent marriages. They were told not to consent to any arranged marriage and to go straight to the police.
On 3 February 2022 the applicant travelled to Melbourne. In the early hours of 4 February his children packed their belongings, found their passports, broke out through a window, made their way to the airport and flew to Sydney where they went to a police station at Mascot.
On 16 February 2022 police obtained the applicant’s phone, which contained messages relating to the arranged marriages. The applicant was interviewed and said he considered it the duty of a Punjabi father to arrange the marriage of his children.
Her Honour noted that when forced marriage offences were introduced into the Criminal Code (Cth) in 2013, the Honourable Nicola Roxon said:

Her Honour assessed the offences as objectively very serious, arising from the applicant’s attempt to force his two children to enter into Islamic marriages over a period of two months, that they did not consent and could not consent to marriage given their ages. Her Honour noted that the children were threatened that if they did not agree to marriage they would be sent back to Pakistan. They were young, vulnerable and spoke little English. The applicant was in a position of trust and authority. Both children were under 18 at the time, and the applicant’s daughter was also below the age of consent to sexual intercourse, and for that reason the offending against her was more serious.
Her Honour took into account that the applicant exercised a degree of control and coercion over the children by taking their passports and visas, taking their phones, forbidding them to leave the home without his permission, denying them access to money and searching their belongings. He also psychologically manipulated them by threats to deport them if they did not agree and giving them no access to schools or education. Her Honour noted that the applicant manipulated the children into dressing up and posing for photographs to send to prospective spouses, and prospective spouses for both children were identified. His daughter’s marriage was arranged to take place at a friend’s house. Her Honour found that the applicant exercised a large degree of control over his children and but for their escape the marriages would more likely have gone ahead. A message to the applicant’s aunt said that his daughter’s marriage would happen in one or two days. Her Honour found the applicant did not cease his offending of his own volition.
Her Honour took into account that the children were extremely vulnerable. They were in a foreign country, spoke little English, did not attend school, were in a rural town, had no money and were unable to read, write or speak English fluently. They were heavily reliant upon their father and his current wife, who did not like them. They needed the assistance of relatives in Pakistan to escape.
The applicant’s daughter said in a Victim Impact Statement that her father attempted to force her and her brother to be married without consent and they were not allowed to contact their mother, their father prevented them from returning to Pakistan and she was not allowed to go to school. They have no family in Australia and they lived in a refuge for homeless children after their escape.
In respect of contrition, her Honour noted the applicant did not give evidence. He wrote a letter of apology to the Court and his children. He said he had come to realise his actions were wrong but in a Pre-Sentence Report dated 7 February 2024 he was recorded as having denied taking his children’s passports and phones, denied not sending his daughter to school and denied that his children did not want to be married. He minimised his offending and blamed his children and his ex-wife. From a second Pre-Sentence Report dated 21 June 2024 her Honour said she had little confidence that the applicant understood the gravity of his offending or demonstrated true contrition and remorse.
Her Honour noted the applicant’s pleas of guilty and that the utilitarian value of the pleas warranted a discount of 25%, but found that his pleas said “little of his remorse and contrition”.
Relevant to appeal grounds 2, 3 and 4, her Honour noted that the applicant stated that “he was following the custom of his village to arrange marriages for his children but he did not turn his mind to the fact they were forced marriages”. Her Honour also noted that the applicant’s communications indicated one motivation was to punish his first wife and marry the children into his family, not hers.
Her Honour stated: