R v A2; R v Magennis; R v Vaziri

Supreme Court of NSW|2016-05-20|Before: Johnson J

JUDGMENT

JOHNSON J: On 18 March 2016, I delivered my sentencing remarks with respect to these Offenders: R v A2; R v Magennis; R v Vaziri (No. 23) [2016] NSWSC 282.
For the reasons contained in those remarks, I sentenced each Offender to an aggregate sentence of imprisonment of 15 months with a non-parole period of 11 months. Each Offender was referred for an assessment as to suitability for home detention. The proceedings were adjourned to 22 April 2016 to allow those assessments to be made and for the Court to consider matters pertinent to the making of final orders on sentence. The sentences of imprisonment were stayed in the meantime.

Further Issues Raised by the Crown

The Crown sought to raise three issues on sentence: 1. a submission that offences under s.45 Crimes Act 1900 fall within s.76(b) or (e) Crimes (Sentencing Procedure) Act 1900, so that the Offenders are not eligible to serve any sentence of imprisonment by way of home detention; 2. the tender of further material concerning events in India on and after 25 April 2016, said to relate to the approach to "khatna" in the Dawoodi Bohra community - this material was said to be pertinent to the issue of general deterrence in sentencing the Offenders; 3. a submission that my consideration of general deterrence in my sentencing remarks was unduly narrow as it focused on the Dawoodi Bohra community.
Senior counsel for the Offenders objected to the Crown being heard further on these matters, and to the tender of the further material. He contended that, if the Court was minded to allow the Crown to rely upon the additional material, an adjournment would be sought to allow the Offenders to adduce further evidence on this topic.
Given the need to progress the matter (in the context of a trial at which I was then presiding), I approached the issues in contest at the resumed hearing on 20 May 2016 upon the basis that, if the additional material was to be admitted and any Offender faced the prospect of an outcome more adverse to the position as it stood on that day, then an opportunity would be provided for that Offender to be heard further if considered appropriate.
On 31 May 2016, the parties were informed by email that the Court proposed to admit the additional material and that the Offender Vaziri was in a position where he faced the prospect of a less favourable outcome, so that an opportunity would be provided for him to be heard on relevant matters. That occurred on 3 and 8 June 2016. Further evidence was adduced yesterday in his case and submissions made on issues which are presently relevant.

Whether Further Submissions and Additional Evidence May Be Received At This Point in the Proceedings

It was submitted for the Crown that the issues sought to be raised at this point in the proceedings were open to be considered by the Court before the conclusion of the matters by the making of final orders on sentence.
It was submitted for the Offenders that the Court was functus officio and that principles of abuse of process may be called in aid so that the Crown should not be permitted to adduce evidence and advance further submissions. If the Court was to permit the Crown to take these steps, it was argued for the Offenders that the submissions advanced by the Crown should be rejected on the merits in any event.
I am satisfied that it is open to the Crown to ventilate these matters at this point in the proceedings. Although the Court has imposed a term of imprisonment with respect to each Offender, those sentences have been stayed and the Court is considering whether it is appropriate to order that each of the sentences be served by way of home detention. An assessment report with respect to each Offender was sought.
Of course, it is not open to the Court to re-open or alter the term of the sentence imposed. The remaining live question is whether or not the sentence should be served by way of home detention.
Even if a favourable home detention assessment is furnished for the purpose of ss.78(2)(a), 80 and 81 Crimes (Sentencing Procedure) Act 1999, the Court is to exercise discretion to determine whether imprisonment by way of home detention is actually ordered. The Court is not merely "rubber stamping" the assessment report to order home detention.
A number of provisions in the statutory scheme makes this clear. Section 78(1)(b) Crimes (Sentencing Procedure) Act 1999 provides that a "home detention order may not be made with respect to an offender's sentence of imprisonment unless the court is satisfied … that it is appropriate in all the circumstances … that the sentence be served by way of home detention".
Section 78(3) provides as follows: "A court may, for any reason it considers sufficient, decline to make a home detention order despite the contents of an assessment report."
Section 78(7) provides: "If a court declines to make a home detention order with respect to an offender's sentence of imprisonment despite an assessment report that states that the offender is a suitable person to serve the sentence by way of home detention, the court must indicate to the offender, and make a record of, its reasons for doing so."
In R v Jurisic (1998) 45 NSWLR 209, Sully J observed, at 249-250, that there are three stages involved where the Court is considering whether a sentence of imprisonment may be served by way of home detention: 1. the first stage involves a determination of the length of the sentence - if the total sentence imposed does not exceed imprisonment for 18 months, then home detention may be considered: s.79 Crimes (Sentencing Procedure) Act 1999; 2. the second stage involves the Court exercising discretion so as to consider the use of home detention by ordering an assessment report for that purpose: ss.78(2), 80 and 81 Crimes (Sentencing Procedure) Act 1999; 3. the third stage involves the exercise of a further and discrete discretion, after a favourable assessment report is provided, as to whether a home detention order will, in fact, be made in the particular case: s.78(1)(b), (3) and (7) Crimes (Sentencing Procedure) Act 1999.
Sully J stated (at 250) that what his Honour had said concerning the discretionary exercise involved in the second stage applied "mutatis mutandis to the exercise of this further discretion" involved in the third stage. The Court should keep in mind, at each of the second and third stages, that the making of an order for home detention will involve "a significant watering down" of the sentence of imprisonment and "a significant diminution in the effectiveness of the sentence in terms of proper retribution; of proper personal deterrence; and of proper general deterrence".
Spigelman CJ observed in R v Jurisic (at 215) that the third stage involves the exercise of the "ultimate discretion" as to whether to make an order for home detention.
Factors which bear upon the discretionary sentencing exercise are relevant to the third stage. Of course, the sentence of imprisonment has already been quantified and announced. The exercise of discretion at the third stage is directed solely to the question whether imprisonment should, or should not, be served by way of home detention.
As Spigelman CJ observed in R v Jurisic (at 215), a home detention order "should only be made if the sentencing judge is satisfied that the term of imprisonment, so served, is the appropriate sentence in the sense that it reflects the criminality of the conduct in the circumstances of the case".
In the senses described by Spigelman CJ and Sully J in R v Jurisic, the process of instinctive synthesis involved in sentencing is not complete: cf Markarian v The Queen [2005] HCA 25; 228 CLR 357 at 373-378 [36]-[53]. The formation of the "value judgment", involved in determining an appropriate sentence, is not complete until final orders are made as to whether a sentence of imprisonment is to be served by way of home detention: cf Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 131-132 [26].
In my view, it is open to the Crown to make submissions of the type foreshadowed at this point of the proceedings. The Court has yet to exercise the ultimate discretion in sentencing the Offenders, by way of the decision whether the sentences should, or should not, be served by way of home detention.
This extends to the adducing of evidence and the making of submissions concerning the role of general deterrence on sentence, an issue which is relevant to each of the first, second and third stages referred to by Spigelman CJ and Sully J in R v Jurisic.

Whether s.45 Crimes Act 1900 Offences are Excluded from the Home Detention Statutory Scheme

Section 76 Crimes (Sentencing Procedure) Act 1999 is in the following terms: "76 Home detention not available for certain offences A home detention order may not be made in respect of a sentence of imprisonment for any of the following offences or with respect to an aggregate sentence of imprisonment with respect to 2 or more offences, any one of which is one of the following offences: (a) murder, attempted murder, manslaughter or an offence under section 25A of the Crimes Act 1900, (b) sexual assault of adults or children or sexual offences involving children, (c) armed robbery, (d) any offence involving the use of a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, (e) assault occasioning actual bodily harm (or any more serious assault, such as malicious wounding or assault with intent to do grievous bodily harm), (f) an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 or section 545AB or 562AB of the Crimes Act 1900 of stalking or intimidating a person with the intention of causing the person to fear personal injury, (g) a domestic violence offence against any person with whom it is likely the offender would reside, or continue or resume a relationship, if a home detention order were made, (h) an offence under section 23 (2), 24 (2), 25 (2), 26, 27 or 28 of the Drug Misuse and Trafficking Act 1985 involving a commercial quantity of a prohibited plant or prohibited drug within the meaning of that Act, (i) any offence prescribed by the regulations for the purposes of this paragraph."
In R v A2; R v Magennis; R v Vaziri (No. 23), I said at [173]: "Section 76 of that Act provides that home detention is not available for certain offences. I am satisfied that an offence under s.45 Crimes Act 1900 is not excluded by operation of s.76."
The Crown submits that offences under s.45 Crimes Act 1900 fall within s.76(b) or (e) so that home detention is not an available sentencing option with respect to the Offenders. It is submitted that the female genital mutilation ("FGM") offences of the Offenders constitute a form of "sexual assault of … children or sexual offences involving children" so as to fall within s.76(b) or "assault occasioning actual bodily harm" within s.76(e).
It was submitted for the Offenders that offences under s.45 Crimes Act 1900 do not fall within either of these categories of prohibited offences.
The provisions now contained in s.76 Crimes (Sentencing Procedure) Act 1999 were originally enacted in s.6 Home Detention Act 1996. The current provision is identical to the original s.6 in the 1996 Act.
The NSW Law Reform Commission has noted that no explicit rationale for these offence exclusions was put forward at the time of introduction of the original Home Detention Act 1996, nor at the time of the replication of its provisions in s.76 Crimes (Sentencing Procedure) Act 1999: NSW Law Reform Commission, Report 139, Sentencing, 2013, paragraph 9.31.
The question for determination is whether, as a matter of statutory construction, offences under s.45 Crimes Act 1900 (and of being an accessory after the fact to a s.45 offence) are excluded by the terms of s.76.
In approaching this question of construction, I have kept in mind the principles stated by McClellan CJ at CL and myself (Price, RA Hulme and Button JJ agreeing) in R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225; 82 NSWLR 60 at 67-68 [38]-[40]: "38 A conclusion that a particular form of sentence is not available in respect of an offence or an offender, as a matter of law, can be reached only by way of clear words in the relevant statute or by necessary implication. To reach such a conclusion, it would be necessary to construe a penal statute, the Sentencing Procedure Act, in a manner which excluded a form of penalty with the likely (if not inevitable) consequence that offenders so excluded would be required to serve a sentence of full-time imprisonment. 39 To the extent to which this process of construction involves competing conclusions, it is appropriate to take into account the penal character of the legislation with an 'appreciation of the heavy hand that may be brought down by the criminal law' operating against a harsh construction: Stevens v Kabushiki Kaisha Sony Computer Entertainment and Ors [2005] HCA 58; 224 CLR 193 at 210-211 [45]; Pearce and Geddes, 'Statutory Interpretation in Australia', 7th edn, 2011, paragraph [9.9]. 40 There is a broad analogy with the approach to construction of legislation which is said to impose a mandatory or minimum penalty, thereby excluding a range of lesser sentencing options, where there is a requirement for unambiguous language to bring about that result: Palling v Corfield [1970] HCA 53; 123 CLR 52; Sillery v The Queen [1981] HCA 34; 180 CLR 353 at 355-356, 364-365, 368-369."
The legislature utilised in s.76 a mixture of general descriptions of conduct, and references to offences by section number in identifying the offences which were excluded from the home detention scheme.
It should be noted that the legislature had created the offence under s.45 Crimes Act 1900 in 1994. Accordingly, this offence existed in the Crimes Act 1900 at the time when the Home Detention Act 1996 was enacted by Parliament. Section 45 offences were not expressly included in the exclusion provision.
I do not accept the Crown submission that s.45 offences (including the Offenders' s.45 offences) fall within s.76(b) of the Act. It may be contended that s.76(b) is intended to capture all offences in Division 10 of Part 3 of the Crimes Act 1900. That Division is entitled "Offences in the nature of rape, offences relating to other acts of sexual assault etc". Division 10 contains conduct and offences provided for in ss.61H-80A Crimes Act 1900. Offences under s.45 do not lie within Division 10 of Part 3 of the Crimes Act 1900. Nor do I consider that the conduct prohibited by s.45 falls within the description of s.76(b).
With respect to s.76(e), the Crown submitted that assault occasioning actual bodily harm was involved in these s.45 offences. I note that s.45 lies within Division 6 of Part 3 of the Crimes Act 1900 entitled "Acts causing danger to life or bodily harm".
If the legislature intended to capture offences such as a s.45 offence, it could have done so by specific reference to that provision or a global reference such as "all offences contained in Division 6 of Part 3 of the Crimes Act 1900". It did not do so. In my view, the reference to "assault occasioning actual bodily harm" in s.76(e) should be construed as a reference to the offence contained in s.59 Crimes Act 1900.
I am not satisfied that a s.45 offence is accommodated amongst the conduct identified in s.76(e) so as to exclude this particular offence from the home detention scheme. A conclusion that this form of sentence is not available in respect of an offence can be reached only by use of clear words in the relevant statute or by necessary implication, applying the approach to construction referred to in R v Pogson; R v Lapham; R v Martin (at [32] above).
I remain of the view expressed in my sentencing remarks (see [26] above) that offences under s.45 Crimes Act 1900 are not excluded from the home detention scheme.

The General Deterrence Issue

In R v A2; R v Magennis; R v Vaziri (No. 23), I observed at [8] that "the unusual and effectively novel circumstances of this case pose questions for this Court not often confronted in sentencing criminal offenders". What follows will confirm further the unusual issues to be considered in concluding the sentencing process with respect to these Offenders.
Issues concerning general deterrence were addressed in R v A2; R v Magennis; R v Vaziri (No. 23) at [125]-[141]. As that part of my sentencing remarks makes clear, the issue of edicts (or resolutions) by Trusts administering and managing the affairs of the Dawoodi Bohra community in a range of cities in Australia and elsewhere in the world, played a significant part in my assessment of the role of general deterrence in this case.
What was also of great importance was the substantial media coverage in India and elsewhere which had noted the issue of these edicts, and their importance to the movement amongst members of the Dawoodi Bohra community, and their supporters, to end the practice of FGM in the form of "khatna" in all Dawoodi Bohra communities.
It was the Offenders who tendered the Dawoodi Bohra edicts (issued in February-March 2016) on sentence on the issue of general deterrence (Exhibits 7, 8 and 11) : R v A2; R v Magennis; R v Vaziri (No. 23) at [127]ff.
In addressing the role of general deterrence on sentence in these cases, I said in R v A2; R v Magennis; R v Vaziri (No. 23) at [138]-[141]: "138 In circumstances where the issue of general deterrence in this case commences, at least, with the Dawoodi Bohra community, it may be said that the steps taken in Australia and internationally very substantially serve the purpose of general deterrence. Authoritative statements have been made, in no uncertain terms, forbidding the practice of 'khatna' in those communities. Further, and very importantly, these steps had been publicised internationally with major prominence in India, where the centre of the Dawoodi Bohra community is based and where a powerful movement has developed, and continues to grow, amongst women in the Dawoodi Bohra community urging the cessation of the practice. 139 To the extent that the Crown submitted to this Court that the steps contained in these edicts may, at a later time, be reversed, I am satisfied that events have moved well past the point of no return. The formal and public acceptance by Dawoodi Bohra communities in different countries has served to fortify the movement towards eradication of this form of FGM in Dawoodi Bohra communities throughout the world. In this way, an important purpose of the criminal law and the principles of sentencing has been advanced. 140 Insofar as the principle of general deterrence operates to seek the prohibition and eradication of FGM in all its forms and in all communities, the steps which have now been taken in the Dawoodi Bohra community serve that general purpose as well. This may be seen as a vindication of the processes of the criminal law. 141 I keep in mind that the effectiveness of these steps will lie in the genuineness of the intent which is said to lie behind them, and the acceptance of members of the Dawoodi Bohra community that the message being conveyed should be followed. I accept that the steps taken to this point are genuine so that there is every reason to expect that members of the Dawoodi Bohra community will follow the edicts of their religious and community leaders, all of which is intended to promote the safety of children in their community."

Further Material Bearing on General Deterrence

As mentioned in R v A2; R v Magennis; R v Vaziri (No. 23) at [132], "Mumbai is the principal centre for the world-wide Dawoodi Bohra community and the place of residence for its religious leader, the 53rd Dai al-Mutlaq, Syedna Mufaddal Saifuddin".
The evidence at the trial and on sentence indicated the hierarchical structure of the Dawoodi Bohra religion, with the 53rd Dai al-Mutlaq occupying a position at the apex of the religious organisation. Although the Dawoodi Bohra communities in many cities throughout the world have Trusts or other management structures which have local application, the paramount role of the 53rd Dai al-Mutlaq is apparent.
Many of the edicts issued by local Dawoodi Bohra Trusts make express reference to the 53rd Dai at-Mutlaq. By way of example, the edict dated 5 March 2016 issued by Anjuman-e-Saifee (New Zealand), a Trust administering and managing the affairs of the Dawoodi Bohra Jamaat of New Zealand, recited the following in the body of the edict (part of Exhibit 11): "It is a well-known hadith of the Prophet, Mohammed RasulullahSAW that 'Hubbul watan minal imaan', which means 'love for the land of abode is part of faith.' The Duat MutlaqeenRA have therefore taught us to remain loyal to our country of abode and to be law abiding and contributory citizens. Today, the 53rd Dai al-Mutlaq, Syedna Mufaddal SaifuddinTUS continues to exhort us to employ the same principles."
I expressed my conclusion earlier (at [11]-[24]) that the Court may receive evidence at this point of the proceedings concerning general deterrence, which bears upon the exercise of sentencing discretion at the third stage. Accordingly, I admitted the Crown's additional material into evidence (Exhibit B), together with a further bundle of edicts tendered for the Offenders (Exhibit 12).
In practical terms, it is understandable that the Crown sought to tender this material which relates to that which was tendered for the Offenders in February and March 2016. The material tendered by the Crown relates to ongoing events in the Dawoodi Bohra community concerning the approach to "khatna" and the role of the edicts which had issued.
The additional material upon which the Crown relies includes a transcript of part of a sermon delivered by the 53rd Dai al-Mutlaq in Mumbai on 25 April 2016, together with media reports of this sermon, and aspects of it which have given rise to controversy concerning the continuation or cessation of the practice of "khatna" in the Dawoodi Bohra community.
The translation of the sermon of 25 April 2016 relied upon by the Crown has been carried out by Siddique Panwala, a translator and interpreter who gave evidence at the trial. Mr Panwala impressed as a careful and thorough witness in the area of translation and interpreting. According to Mr Panwala, in the course of the sermon, the 53rd Dai al-Mutlaq said (part Exhibit 8): "126 If men, it must do. 127 128 It is (Elahi-riqht). You understand? 129 For women it is (Makfi-discreet). 130 131 It must be done/act, 132 133 You understand what I am trying to say? 134 135 Understand properly? (Audience heard to say 'Yes' in response (all in unison) 136 137 138 For men it is (Elahi-right). For women it is (makfi-discreet). 139 140 But action must be done. 141 142 Whatever others say, but no. 143 144 We have our (Sharia) rules, our Dai. 145 146 Prophet has instructed."
This part of the sermon is somewhat cryptic. However, a clearer understanding of what was said in the sermon may be found in an article published on 29 April 2016 in "The Times of India", under the headline "Bohra cleric urges female genital mutilation?". I observe that earlier Indian media articles concerning the edicts had formed part of the defence evidence on sentence (Exhibit 8): R v A2; R v Magennis; R v Vaziri (No. 23) at [132]-[134]. In my view, publicity concerning later events on the topic has continuing relevance to the issue of general deterrence in this case.
It appears that a substantial proportion of the audience, and of those who have heard the recording of the sermon, have understood what was being said by the 53rd Dai al-Mutlaq to be comments in support of the practice of "khatna". The 29 April 2016 article states (part Exhibit B): "Efforts may be on to end the practice of female genital mutilation that young girls in the Dawoodi Bohra community are made to undergo in India but their spiritual leader may not be convinced yet as he went on to publicly encourage the act of khatna (female circumcision) albeit indirectly, in his recent sermon at the Saifee Mosque in Bhendi Bazaar. A four-minute audio clip from Syedna Muffadal Saifuddin's bayaan (speech) on the occasion of the 51st Syedna Taher Saifuddin's death anniversary, has gone viral over a mobile messaging app and generated conversations within the community on how the Syedna's endorsement may urge close followers of the spiritual head to continue with the painful practice. The clip begins with a plea from the Syedna speaking in a mix of Gujarati and Urdu. 'We should keep our things strong, stay firm. Even the big sovereign states, whatever it is they say, if it makes any difference to our things, then we are not prepared to understand!' he says and then adds: 'The act has to happen! If it is a man, then it is right, it can be openly done, but if it is a woman then it must be done discreetly, but then the act has to be done. Please understand what I am trying to talk about …'. A Mumbai resident present at the Hussaini Mosque where the sermon was being beamed live on a giant screen confirmed that the clip was what he had heard being broadcast. 'The Syedna was reading from a script which is usually the routine on such an occasion but all of a sudden he went off and started talking in a cryptic fashion. It was confusing at first. Then we gradually realized that he was talking about female circumcision when he used words like amal (act), mamlakat (states) and that the act must be carried out discreetly for women and openly for men. It was very disturbing for me and my wife,' he told TOI. A close friend of the Syedna family dismissed such an interpretation of the Syedna's speech when TOI called him. 'It was a general comment. Nothing specific. People are interpreting it differently' he said alleging that, 'Those close to the new claimant to the Syedna title are trying to target our revered Syedna (Mutfadal Saifuddin).' A 36-year old Bohra woman who has lived through the horrors of khatna and currently settled in the US expressed her anguish having heard the clip. 'Just a month ago many of us in the US received a letter from the jamaat (local community unit) that works under the Syedna's guidelines. It said that we must follow the law of the land and not practice khatna. I was thrilled, at peace with my faith. What l just heard reflects hypocrisy. I'm disillusioned and worried'."
A further article published in "The Times of India" on 30 April 2016, under the headline "Clarify on circumcision, Bohras appeal to Syedna", included the following (part Exhibit B): "Reacting to the audio clip that has been going around in which the Dawoodi Bohra spiritual head Syedna Mufaddal Saifuddin made indirect references to the act of khatna (female circumcision) and urged people to continue with the act, groups of Bohra women who have been rallying to end the practice of female circumcision issued a statement on Friday asking the Syedna to publicly clarify his stance. 'Several concerned community members wrote to Sahiyo to tell us that they had attended the wa'az and were shocked by the Syedna's statements. … Hundreds of Bohras have interpreted his speech as a reference to khatna and circulated the audio clip widely. If the leadership believes that all of these people misinterpreted the speech, then we urge the Syedna to publicly clarify and make his stance on khatna clear,' read the statement by Sahiyo, a group that has made it their mission to empower Dawoodi Bohra and other Asian communities to end female genital mutilation (FGM). 'Speak Out on FGM', another group of Bohra women who have endured FGM and launched a petition to end female female [sic] circumcision and so far garnered more than 49,000 signatures issued another statement that said: 'This is a clear reference to FGM/khatna, even though the word was not used. He further dismisses and decides all opposition and tells Bohras it is their religious duty to practise it.' Insia Dariwala, co-founder of Sahiyo told TOI: 'The community was eagerly awaiting a word on the subject directly from the Syedna, however, the audio clip has further confused the jamaat people because of the contradictory statements made. After the jamaat resolutions were passed in other countries, we thought India wasn't far behind but the Syedna's comments are a setback, it makes our work a little more difficult since the clergy is revered and his words taken as words from God.' Over the last one year, attempts have been made to drum up support against female female [sic] circumcision but the Syedna's remarks offer a blow to those rooting for the anti-khatna campaign given the duality of the Syedna's stance."
An article published online by Reuters on 29 April 2016, under the headline "Muslim leader in India under fire from activists for supporting FGM", included the following (part Exhibit B): "The leader of the only South Asian Muslim community known to practise female genital mutilation (FGM) came under criticism on Friday by campaigers [sic] who accused him of urging followers to continue the centuries-old custom. Little is known about FGM in India, where it is carried out in great secrecy by the close-knit Dawoodi Bohra community, a Shi'ite Muslim sect thought to number over 1 million that considers the practice to be a religious obligation. An audio clip of Syedna Muffadal Saiffudin's speech at a mosque in Mumbai, has been authenticated by several members of the community. According to a transcript, he said: 'The act must be done. It needs to be done discreetly when it is a woman, but it needs to be done.' Calls and e-mails to a spokesman for the Syedna and the leader's administrative office received no response. 'The speech is a huge disappointment for us,' said Masooma Ranalvi, who was cut as a seven-year old and leads an online petition as part of the 'Speak Out on FGM' campaign, which has drawn almost 50,000 signatories, including Mia Farrow, who tweeted her support on Thursday. 'Ever since we began the campaign, there has been only silence from the clergy. But now that it's out in the open, at least there's no ambiguity about where we stand,' she told the Thomson Reuters Foundation. A person described as a close friend of the Syedna family told the Times of India newspaper that the remarks were a 'general comment' and that people were 'interpreting it differently'. … Although it is not mentioned in the Koran, the Bohras consider 'khatna' - the removal of part of the clitoris - to be part of their religious duty, and debate on the subject has long been taboo. But the practice among Indian Dawoodi Bohras hit the headlines in November when a court in Australia found two members of the diaspora community guilty of cutting two girls. A Bohra religious leader was convicted of being an accessory. Since then, more than a dozen Bohra communities in Europe and the United States have passed resolutions against the practice. 'Why should girls in some parts of the world be spared from circumcision, while girls in other countries continue to be cut?' the non-profit group Sahiyo, which aims to end FGM in India, posted on its website on Friday. 'The strongest form of opposition to khatna is now coming from within the community.' Campaigners will now focus on petitioning the government while still working with the community, said Ranalvi. 'There is hypocrisy in the clergy's stance, so the government is the most important route open to us now,' she said. 'We need them to step in to protect our girls'."
In a further article published on 7 May 2016 in "The Times of India", under a headline "Rival Syedna denounces female genital mutilation, kindles hope", reference was made to a statement by Taher Fakhruddin, a claimant to the position of 54th Dai al-Mutlaq. The article recites this cleric's position as being against the performance of "khatna" on children, but in favour of the maintenance of the practice once girls reach legal adulthood. The article includes the following (part Exhibit B): "The rival Syedna's office stated that he was forced to take a public stand after several women from the community brought to his notice the trauma young girls undergo when circumcision is carried out in an 'irregular and improper fashion'. Taher Fakhruddin is a claimant to the position of 54th Dai al-Mutlaq of the Dawoodi Bohras. Recently an audio clip of the 53rd Dai al-Mutlaq or the current Syedna Mufaddal Saifuddin's sermon at the Saifee Masjid where he made indirect references to the act of 'khatna' and urged people to continue with the act was heavily circulated and discussed within the community. Syedna Saifuddin's sources, however, remained unavailable for comment. In his statement, the rival Syedna says, 'In view of the trauma that many girls undergo when this procedure is carried out, and in keeping with the law of the land, khafz (khatna) of girls should only be allowed after they attain legal adulthood, after which they are free to make their individual decision whether to do the medically, legally and religiously sanctioned CDH or CHR procedures (analogous to khafz).' He also claims that CDH (clitoral de-hooding) or CHR (clitoral hood reduction) are procedures that are 'in line with the faith tradition which says that if the procedure is done, it should not be done when the girl is a minor.' Clinically, clitoral de-hooding is a minor genital surgical procedure to remove excess prepuce tissue or reduce the skin overhanging the clitoris to heighten sexual experience. This theory contradicts that offered by those favouring FGM who describe it as a means to curb sexual desire. 'The Syedna was concerned because this issue is affecting the community, the children and people's faith in tradition. He wanted to put things in perspective in order to protect the girl child and maintain the sanctity of the faith, both while keeping in mind the law of the land,' explained Abdeali Qutbuddin, brother of Syedna Taher Fakhruddin."
Accordingly, there appears to be controversy arising from the sermon of the 53rd Dai al-Mutlaq on 25 April 2016 (which is said to support the practice of "khatna"), the view of the rival claimant to the position of 54th Dai al-Mutlaq (which favours the practice of "khatna" in adult women) and the broad movement throughout the Dawoodi Bohra community which seeks to end the practice of "khatna" upon girls or women of any age.
The position is further complicated by the fact that recent edicts issued in different cities in May 2016 invoke the sermon of the 53rd Dai al-Mutlaq on 25 April 2016. The edict issued by the Anjuman-e-Burhani (Toronto) on 14 May 2016 included the following (part Exhibit 12): "1. 'Hubbul watan minal imaan' is a well-known hadith of the Prophet, Mohammed RasulullahSAW which means 'love for the land of abode is part of faith'. Duat MutlaqeenRA have accordingly taught us to remain loyal to the country of abode and to be law abiding and contributory citizens. 2. Today, the 53rd Dai al-Mutlaq, Syedna Mufaddal SaifuddinTUS continues to exhort us to the same principles, and did so in very clear terms most recently in the zikra majlis in Mumbai on 19 Rajab al-Asab 1437H (25 April 2016)."
The edict issued by the Anjuman-e-Burhani (Seattle) on 9 May 2016 was expressed in different terms and included the following (part Exhibit 12): "It is a well-known hadith of the Prophet, Mohammed RasulullahSAW that 'Hubbul watan minal imaan', which means 'love for the land of abode is part of faith.' This has been quoted by Duat Mutlaqeen (RA) as also the 53rd Dai-ul-Mutlaq, Syedna Mufaddal Saifuddin (TUS), and they have often reminded us to remain loyal to our country of abode and be law abiding and contributory citizens. This principle remains valid and unchanged despite press reports to the contrary following the Zikra majlis on 19 Rajab al-Asab 1437H (25 April 2016)."
The reference to "press reports" in this passage may be taken to be references to the articles reproduced at [53]-[55] above.
I have kept in mind that the edicts which have issued apply in jurisdictions where the criminal law prohibits FGM, and thus the practice of "khatna". The Court was informed that the practice of FGM (including "khatna") is not expressly prohibited by the criminal law in India.
At the resumed hearing yesterday, senior counsel for the Offender Vaziri read an affidavit sworn on 8 June 2016 of Dr Mustafa Ebrahim Abdulhussein (Exhibit 14). Dr Abdulhussein was cross-examined on his affidavit. Dr Abdulhussein, who resides in the United Kingdom, has been closely involved in the issue of the edicts in Dawoodi Bohra communities since February 2016. He is authorised by the Dawat-e-Hadiyah (the Administration of the 53rd Dai al-Mutlaq) to speak on behalf of the Dawoodi Bohra religion pertaining to issues arising from the present criminal proceedings.
Dr Abdulhussein's evidence indicates that: 1. "khatna" is a religious rite for both men and women in the Dawoodi Bohra community and has been practised since the time of the Prophet Mohammed 1,400 years ago; 2. the Dawoodi Bohra faith is also bound to recognise the teaching of the Prophet Mohammed that "love for the land of abode is part of the faith" so that Dawoodi Bohras are to adhere to and strictly abide by the law of the land in which they live; 3. until the conviction of the Offenders in this case, it was not the view of the Dawoodi Bohra faith that "khatna" was illegal - it is now accepted following these verdicts that it is illegal; 4. after the verdicts, discussions took place as to how the religion should respond, and it was resolved that the way to address "the position of the law versus the religious requirements" was to consider the teaching of the Prophet Mohammed (referred to at (b) above); 5. in consequence of meetings with Shahzada (the Head of the Administration of the 53rd Dai al-Mutlaq), Dr Abdulhussein drafted the form of resolution (or edict) that was subsequently presented to the various local Trusts around the world, including Sydney and Melbourne - these have since issued, with most of them being in evidence in these sentencing proceedings; 6. a resolution (or edict) has been passed in every jurisdiction where it has been requested to do so; 7. he was present in Mumbai at the sermon by the 53rd Dai al-Mutlaq on 25 April 2016 - it was a three-hour sermon made to a closed audience of seminary students and other members of the community who were physically present (about 2,000 people) - it was not intended to be broadcast to the world as a general message; 8. "Particular words used in the sermon have been construed in the media to suggest that the 53rd Dai al-Mutlaq was promoting the practice of khatna even where it was illegal", however, "the media did not report that before the reference to the practice of khatna, his Holiness also specified adherence to the principles of the teaching of the Prophet Mohammed of love for the land of abode and to be law-abiding" - in evidence, Dr Abdulhussein agreed that the 53rd Dai al-Mutlaq had referred to the practice of "khatna", and that his reference to compliance with the law of the land was made elsewhere in the sermon; 9. following 25 April 2016, additional words had been inserted in resolutions (edicts) along the lines of the closing sentence contained in the Seattle edict referred to at [59] above; 10. the intention of the additional words was to confirm that the resolution (edict) "which had been made in jurisdictions where the practice of khatna is illegal was still to be obeyed under threat of secular legal sanction and that the faith will not support those who engage in the practice of khatna"; 11. following further discussions with Shahzada since 3 June 2016, it was decided that a press release should be sent out to clarify the strength of the resolutions (edicts) and this was done on 6 June 2016; 12. the press release has been publicised in the Indian media on 6 June 2016; 13. there "are no plans, and cannot be, to dissolve the resolution, water it down or lessen its strength in any way, so long as the law of the land forbids the practice of khatna".
Similar articles referring to the press release were published electronically in "The Times of India", "India Today" and "Business Standard" on 6 June 2016. The article in "The Times of India" under a headline "Female circumcision: Syedna favours respecting local laws" stated: "The Dawoodi Bohra community here today clarified that its top authority had asked the community bodies across the world to respect the laws of the respective country with regard to the controversial practise of female circumcision. In many parts of the world, the Anjumans the administrative bodies of the Dawoodi Bohra Jamaats, have directed their 'congregations' not to undertake 'khafz' (female circumcision) if it is banned under the laws of the country, the community said in a statement. 'These resolutions (by Anjumans) reflect the repeated directions of Syedna Mufaddal Saifuddin (the top spiritual leader of the community) to respect the law of the land and live as worthy and contributory citizens within prevailing laws,' it said. Syedna Saifuddin and his predecessors have always guided the community towards upholding the Islamic values and obligations, and have always emphasised the need for abiding by the laws of the countries in which one resides, it said. 'It is clarified that contrary to the media reports following the sermon of Syedna Mufaddai Saifuddin on April 25, 2016, these resolutions of the Anjumans (asking to abide by the law of the land) have not been nullified and continue to be valid, the statement said. Some media reports had stated that Syedna Saifuddin had in a recent sermon at the Saifee Mosque here indirectly endorsed the female circumcision, a tradition opposed by reformists within the community and the women's organisation."

The Role of General Deterrence in the Present Proceedings

The relevance of these recent developments, including the sermon on 25 April 2016, is that there is a degree of tension between ongoing adherence to "khatna" upon young girls in Dawoodi Bohra communities (expressed at the highest religious level) and the issue of edicts urging compliance with local anti-FGM laws.
What is now clear, in light of the evidence of Dr Abdulhussein, is that there is continuing religious adherence to the practice of FGM, in the form of "khatna" upon young girls, unless the practice is expressly prohibited by local criminal law. The question whether the practice constitutes an assault under the general criminal law or may be inconsistent with child protection laws, does not appear to have been considered. It is only in places where FGM is expressly prohibited that edicts have issued.
It is the case that the paramount figure in the Dawoodi Bohra religion has expressed support for the continued practice of "khatna". The clarification, as a result of the press release of 6 June 2016, states that this does not detract from the need to comply with local resolutions or edicts in places where FGM is specifically outlawed. A consequence of this may well be that, given the hierarchical nature of the religion, Dawoodi Bohra followers may feel inclined to continue the ancient practice of "khatna" on young girls despite the existence of edicts in their local communities.
These recent developments must be considered in light of the assumption which I was prepared to make in R v A2; R v Magennis; R v Vaziri (No. 23) at [141] (see [44] above). The evidence now explains the need for laws in individual jurisdictions which prohibit FGM expressly, otherwise members of the Dawoodi Bohra community will be expected to comply with the religious requirement favouring the performance of "khatna" on young girls.
The principle of general deterrence extends not just to members of the Dawoodi Bohra community who may be minded to practice "khatna", but to other communities in New South Wales who may undertake FGM. I do not accept the Crown's contention (at 5 above) that the focus of the Court's approach to general deterrence in this case was too narrow.
General deterrence, of course, operates prospectively. The principle recognises that persons who may be minded to offend in this way will be conscious of the penalty which will likely await them if they do so. In this respect, I should repeat what was said at the conclusion of my sentencing remarks in R v A2; R v Magennis; R v Vaziri (No. 23) at [214]: "Before concluding these remarks, I wish to make a final observation. The maximum penalty for these offences, at the time of their commission, was imprisonment for seven years. Parliament has trebled the maximum penalty for FGM offences now contained in ss.45 and 45A Crimes Act 1900 to imprisonment for 21 years. That maximum penalty applies to offences committed after 20 May 2014. Had the maximum penalty for the present offences been 21 years' imprisonment, a significantly different sentencing outcome would have resulted in these cases. I mention this for two reasons. Firstly, the sentencing outcome in this case (as opposed to sentencing principles) will have little relevance for FGM offences committed after 20 May 2014. Secondly, the substantially increased maximum penalty stands as an important legislative guidepost for the purpose of sentence: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at 132 [27]. It is well established that an increase in the maximum penalty for an offence must be reflected in sentences imposed by the Courts: Muldrock v The Queen at 133 [31]."
Persons who may place themselves in the position of the Offender A2 and the Offender Magennis, should be aware that the trebling of the maximum penalty for offences under s.45 Crimes Act 1900 (to imprisonment for 21 years) leads to a conclusion that a significant term of full-time imprisonment is the almost inevitable penalty for offences of this type committed in New South Wales since 2014. The role of general deterrence, in the sentencing of the Offender A2 and the Offender Magennis, must be considered in light of this substantial increase in maximum penalty.
However, the maximum penalty applicable to the Offender Vaziri, as an accessory after the fact to the s.45 offences, is imprisonment for five years: s.350 Crimes Act 1900. The increase in the maximum penalty for s.45 offences does not apply to the position of persons who are accessories after the fact to those offences. The maximum penalty under s.350 remains as it was, at the time of these offences, at imprisonment for five years.
Accordingly, general deterrence continues to have particular application to the sentencing of the Offender Vaziri, above and beyond its role in the sentencing of the Offender A2 and the Offender Magennis.
The evidence given at the trial, and knowledge of the practice of "khatna" arising generally in this case, indicates that Dawoodi Bohra women only will be present at the time when "khatna" is performed. A person in the position of the Offender Vaziri, a male religious leader in the community, will not be present at the time of the commission of a s.45 offence.
The likely criminal involvement of a religious leader such as the Offender Vaziri will be as an accessory after the fact to the offence. That is what happened in this case. The Offender Vaziri sought to deflect the investigation of the s.45 offences over a period of weeks, including urging members of the community not to disclose the true position to police and promoting a false account to be given to police about what happened. Religious leaders who act in this way in the future, if prosecuted as an accessory after the fact to a s.45 offence, will continue to be liable to a maximum penalty of five years' imprisonment.
It may be said that male religious leaders in the Dawoodi Bohra community have encouraged the practice of "khatna". It appears that this was the case until February 2016, when the process commenced of issuing edicts in jurisdictions where FGM was expressly prohibited. Indeed, it appears that the use of "khatna" is still promoted in jurisdictions where there is no express prohibition of FGM.
The evidence in this case points to ready acceptance of the practice by many female members of the community, including the Offender Magennis and the grandmother of the victims (A5) and their paternal grandaunt (A3), who were present at one or more of the "khatna" procedures: R v A2; R v Magennis; R v Vaziri (No. 23) at [28], [35].
Female members who seek to have "khatna" performed on their own children (such as the Offender A2 in this case) have themselves experienced "khatna" in their childhood: R v A2; R v Magennis; R v Vaziri (No. 23) at [24], [118]. The generational cycle involved in the practice of "khatna" has no doubt contributed to the difficulty in stamping out the practice.
The point of this discussion is that general deterrence has a particular role to play in the sentencing of a male Dawoodi Bohra religious leader, such as the Offender Vaziri, who has acted in defence of the practice of "khatna" in his community. Indeed, any future religious leader of the Dawoodi Bohra community in Sydney who, like the Offender Vaziri, comes from India may have to compromise his primary belief in support of "khatna" with the need to comply with local law.
Even in Dawoodi Bohra communities where edicts have issued (such as Sydney), there remains a level of tension between adherence to primary religious views favouring "khatna" and compliance with local laws which prohibit the practice.
Members of the Dawoodi Bohra community should be entitled to turn to their religious leaders for clear and decisive statements condemning the practice of "khatna" upon young girls, and this should have been the position in 2012 when the Offender Vaziri committed these serious offences. General deterrence continues to have a particular application to the sentencing of the Offender Vaziri.

Third Stage of Sentencing - Should Each Sentence of Imprisonment be Served by Way of Home Detention?

I now move to the exercise of the ultimate discretion with respect to each Offender, where the Court will determine whether or not the sentence of imprisonment in each case should be served by way of home detention.
In exercising this discretion, the Court has regard to aspects which bear upon the third stage.
An order for home detention should only be made if the Court is satisfied that the term of imprisonment, so served, is the appropriate sentence, in the sense that it reflects the criminality of the conduct in the circumstances of the case: R v Jurisic at 215. The Court should keep in mind, as well, that a sentence of imprisonment by way of home detention is a substantially less onerous sentence than one involving full-time imprisonment: R v Jurisic at 215, 249-250. A2
For reasons expressed earlier in this judgment, offences under s.45 Crimes Act 1900 are not excluded by s.76 Crimes (Sentencing Procedure) Act 1999 from the home detention scheme.
With respect to the Offender A2, I said in R v A2; R v Magennis; R v Vaziri (No. 23) at [174]-[175]: "174 If A2 is sentenced by way of an immediate custodial sentence, I am satisfied that there would be significant hardship for her children, including C1 and C2. A sentencing outcome which would see these children (who are victims of these offences) being punished in a practical way, would not serve the interests of justice in this case. As I have noted, the relevant authorities have determined that the children may continue to reside safely with A2 and her husband. The evidence indicates that she is generally a caring mother for her children. 175 The use of home detention would involve a penalty on A2 which would permit her, whilst serving her sentence, to continue to exercise her duties and responsibilities towards her family. This is an important factor in the exercise of discretion as to the use of home detention in her case."
The Offender A2 has been assessed as suitable for home detention.
The home detention assessment with respect to the Offender A2 required compliance with Clause 21 Crimes (Sentencing Procedure) Regulation 2010, which provides: "21 Assessment of effect of order on children (1) If a child under the age of 18 years would be living with an offender serving home detention, an assessment report must take into account, and specifically address, the effect on the child of that fact. (2) The investigation of the matter must be carried out jointly by a probation and parole officer and an officer within the Department of Human Services, and must be carried out in accordance with child protection risk assessment procedures approved by the Director-General of that Department."
The home detention assessment report dated 16 May 2016 addressed this requirement in the following way: "A joint investigation has been undertaken with Community Services regarding any risk to the child co-residents as per c21(2) of the Crimes (Sentencing Procedure) Regulation 2010. The investigation indicated no current concerns with regards to the impact on the children of the offender serving Home Detention."
Having regard to all objective and subjective factors relevant to the Offender A2 and applicable sentencing principles, I am satisfied that it is appropriate to direct that the Offender A2's sentence of imprisonment be served by way of home detention. Kubra Magennis
Once again, I note my conclusion that offences under s.45 Crimes Act 1900 are not excluded by s.76 Crimes (Sentencing Procedure) Act 1999 from the home detention statutory scheme.
With respect to the potential use of home detention in the case of the Offender Magennis, I said at R v A2; R v Magennis; R v Vaziri (No. 23) at [181]: "I am satisfied that the Court should consider, in the exercise of discretion, an order requiring the sentence of imprisonment to be served by way of home detention. In the case of Kubra Magennis, I have in mind the very substantial health issues which surround her, together with her age, and the difficulties identified in the medical evidence relating to her management in the correctional system."
The Offender Magennis has been assessed as suitable for home detention.
The home detention assessment report dated 3 May 2016, with respect to the Offender Magennis, confirms that she "has ongoing medical conditions that require her to engage in regular medical engagements in the community to address her diagnosed health issues".
Having considered all objective and subjective factors applicable to the Offender Magennis, together with applicable sentencing principles, I consider that the sentence of imprisonment in her case may be served by way of home detention. Shabbir Vaziri
Once again, I note my conclusion that offences of being an accessory after the fact to s.45 Crimes Act 1900 offences are not excluded from the home detention statutory scheme.
In determining that the Offender Vaziri should be referred for home detention assessment, I said in R v A2, R v Magennis; R v Vaziri (No. 23) at [189]: "With respect to the option of home detention, I note that Shabbir Vaziri lives with his family in Sydney, although his employment as religious leader at the Auburn Mosque has been terminated. I take into account that he has health difficulties, which is relevant to the exercise of discretion. As Shabbir Vaziri is to be sentenced as an accessory after the fact to the FGM offences, the use of home detention for the principals is a relevant factor on sentence. I am satisfied, in all the circumstances of the case, that it is appropriate to seek an assessment as to the suitability of home detention in the case of Shabbir Vaziri."
The home detention assessment report dated 13 May 2016 with respect to the Offender Vaziri assessed him as being suitable for a home detention order. The assessment report noted that, if such an order was made, the Offender Vaziri would be absent from the home to attend medical appointments and to undertake exercise activity. The Offender Vaziri has some health issues: R v A2; R v Magennis; R v Vaziri (No. 23) at [99]-[100]. However, his health difficulties are not anywhere as substantial as those of the Offender Magennis.
In exercising the ultimate discretion as to whether home detention should be utilised in the case of the Offender Vaziri, I have kept in mind the description of his offences in R v A2, R v Magennis; R v Vaziri (No. 23) at [72]-[75]: "72 The Offender Vaziri was in a primary position of responsibility in the Dawoodi Bohra community in Sydney at the time of the commission of the offences. He was the religious leader of the community. 73 Rather than honestly assisting the investigating authorities to ascertain what had happened and why, he played a leading role in the creation of a false story for the purpose of deflecting investigation of the offences, which he well knew had been committed. Further, he encouraged and directed members of the Dawoodi Bohra community to give false accounts to police whilst the offences were being investigated. 74 It does not assist the Offender Vaziri that he may have accepted culturally that procedures of this type could occur in the Dawoodi Bohra community. I am satisfied that he was well aware that conduct of this type was contrary to the criminal law of this State. He used his position of authority and responsibility to seek to undermine and deflect the law, rather than to promote it. 75 His offences extended over a period of weeks and involved a course of conduct on his part."
I concluded that the accessorial offences of the Offender Vaziri were of "considerable objective seriousness" (at [77]). Before moving to express these conclusions, I had set out a more detailed account of the Offender Vaziri's criminal conduct in R v A2; R v Magennis; R v Vaziri (No. 23) at [40]-[57].
Courts in this State have been critical of the fact that s.350 Crimes Act 1900 provides for a maximum penalty of five years' imprisonment in the case of an accessory after the fact to a serious indictable offence not otherwise provided for in ss.347A-349 Crimes Act 1900. This maximum penalty applies despite the wide range of higher maximum penalties which attach to the primary offences for which the person has been an accessory after the fact. The five-year maximum penalty under s.350 has been criticised in the context of sentencing an accessory after the fact to manslaughter: R v Walsh; R v Sharp [2014] NSWSC 111; 142 A Crim R 140 at 142 [3]-[5]; R v Abdulrahman [2007] NSWSC 578; 171 A Crim R 419 at 421 [9]; TT v R [2014] NSWCCA 206 at [8]-[12].
It has been said (TT v R at [14]-[15]) that an assessment of the objective gravity of offences of being an accessory after the fact to an offence involves an assessment of each case on its facts, and consideration of a number of factors which include, but are not limited to: 1. the circumstances of the primary offence itself; 2. the extent of the knowledge in the accessory of those circumstances; 3. the precise act or acts which constitute the offence of being an accessory after the fact; 4. the length of time over which the offender assisted the principal offender in escaping justice; 5. the extent to which the acts of the offender successfully delayed, or thwarted, the investigation and prosecution of the principal offender; 6. the motivation of the offender in committing the crime.
A number of these factors were addressed in my findings set out at [99] above.
These were not accessorial offences (as is sometimes the case) by a misguided relative of the principal offender, who was presented with an unexpected state of affairs giving rise to an emotional response. The Offender Vaziri acted in a calculated and deliberate way over a period of weeks, directing and managing an approach to the police investigation which was intended to defeat it entirely.
Of course, what he did not know was that all his telephone conversations were being recorded by investigating police. Rather than defeating the investigation, the Offender Vaziri demonstrated his own accessorial liability for the offences. Although the inevitability of his detection (and that of the principal Offenders) is relevant, it provides no real assistance on sentence in this case. The Offender Vaziri manifested a clear, determined and calculated intention to obstruct the police, so that no successful investigation of the use of "khatna" in his own community could be achieved. The Offender Vaziri acted in this way in an effort to defeat an investigation of FGM offences which are difficult to detect, investigate and prosecute: R v A2; R v Magennis; R v Vaziri (No. 23) at [15].
I have had regard to the Offender Vaziri's prior good character in the form of absence of convictions and the contents of the character references tendered on his behalf. I have taken into account the fact that he was removed from his position in the religion in February 2016, although this ought be regarded as an inevitable consequence of the breach of trust involved in his offences. I have kept in mind, as well, the present health difficulties of the Offender Vaziri and the fact that he may be more isolated in custody because of his limited understanding of the English language.
The Offender Vaziri, as was his right, pleaded not guilty and proceeded to trial. He did not give evidence at the trial. In parts of R v A2; R v Magennis; R v Vaziri (No. 23) concerning issues of remorse, contrition and personal deterrence, I said with respect to the Offender Vaziri at [114]-[117], [122]-124]: "114 Shabbir Vaziri did not give evidence at the trial. 115 At the sentencing hearing on 5 February 2016, an unsworn letter from him was tendered, in which he expressed sadness that 'In my eagerness to save my community members from embarrassment of having done something that may be regarded as illegal, I advised them in a manner that did not best serve the law of the land and the investigation that the police were conducting'. He stated that he was 'overcome with remorse and regret this and hope the court is able to look at my situation with kindness'. 116 In the course of submissions on 5 February 2016, I indicated that I would give little weight to this expression of contrition made after trial. 117 I noted, as well, that there was no indication from Vaziri (or the other Offenders) that he (or they) had taken or would take steps to discourage the performance of 'khatna' in the Dawoodi Bohra community. What followed next in this regard will be referred to shortly. … 122 The evidence at the trial indicated the adherence by Shabbir Vaziri to long-standing cultural practices of the Dawoodi Bohra community involving 'khatna'. Personal deterrence remains a relevant consideration with respect to him. He has not personally forsaken his beliefs in this respect. 123 It may be suggested that the steps being taken by the Dawoodi Bohra community in Australia and internationally (involving edicts concerning 'khatna') may provide some assistance to Shabbir Vaziri. As will be mentioned shortly, the world is being informed of the rejection by the Dawoodi Bohra community, in a wide range of places, of the practice of 'khatna'. However, I am not satisfied that these steps were personally driven by Shabbir Vaziri. 124 Personal deterrence remains a factor on sentence in his case."
I do not consider that the Offender Vaziri's letter (referred to at [115] in the preceding paragraph) demonstrates remorse on his part. He has not provided evidence that he has accepted responsibility for his actions, nor has he acknowledged any injury caused by his actions: s.21A(3)(i) Crimes (Sentencing Procedure) Act 1999.
I remain of the view that steps taken, in and after February 2016, to issue edicts to Dawoodi Bohra communities were not personally driven by the Offender Vaziri.
I have sentenced the Offender Vaziri to an aggregate sentence of the same length as that applying to the Offenders A2 and Magennis. I am conscious that the effective sentence applicable to the Offender Vaziri is a more substantial one given the lesser maximum penalties applicable to his accessorial offences.
In referring the Offender Vaziri for home detention assessment, I considered it to be relevant that he was an accessory after the fact to the principal offences of the Offenders A2 and Magennis, and that those persons were being referred for such an assessment (see [97] above). The question whether home detention should actually be ordered in his case requires a closer examination of his offences, and of other factors bearing upon sentence in his case.
It is not a principle of law that an accessory to an offence must always receive a lesser (or less onerous) sentence to that imposed upon the principal offender or offenders. Nor does sentencing an accessory more severely than a principal necessarily create a justifiable sense of grievance: R v Ho [2002] NSWCCA 379; 133 A Crim R 340 at 350 [63].
I have kept in mind the different offences for which the Offender A2 and the Offender Magennis (on the one hand) and the Offender Vaziri (on the other hand) must be punished. The gravity of the Offender Vaziri's offences, taken with the other sentencing factors which operate against him, lead me to conclude that use of the substantially less onerous measure of home detention would be wrong in his case.
For reasons expressed earlier (at [65]-[81]), I consider that general deterrence is a greater factor on sentence in the case of the Offender Vaziri than of the other Offenders. The increase in the maximum penalty for s.45 offences can have a limited effect only in sentencing an accessory after the fact to a s.45 offence. The maximum penalty under s.350 Crimes Act 1900 remains at five years' imprisonment.
Further, I accept that a strong message should be sent to male Dawoodi Bohra religious leaders that criminal acts such as those committed by the Offender Vaziri, for the purpose of covering up the performance of "khatna" and deflecting a police investigation of FGM offences, ought be met by sentences of full-time imprisonment. The same strong message should be sent to leaders of other communities where FGM is practised that if they become liable as accessories after the fact to s.45 offences by way of covering up and deflecting police investigations, they too will be met by stern punishment.
It is the religious leaders within the Dawoodi Bohra community who should be urging their followers to discard the practice of "khatna" and to act in a manner which supports this approach. In the case of the Offender Vaziri, his actions were the opposite to this approach. His words expressed in the unsworn and untested letter of 4 February 2016 (see [107] above), prepared after trial, indicate a luke-warm attitude which does not support a conclusion that the Offender Vaziri himself will urge others to discard the practice of "khatna" now and in the future.
Having considered the objective and subjective factors relating to the Offender Vaziri's offences and applicable sentencing principles, I am not satisfied that the term of imprisonment which I have fixed, if served by way of home detention, is appropriate. It would not reflect the criminality of the conduct in the circumstances of the case and having regard to all relevant considerations.
I am satisfied that the appropriate order, in the case of the Offender Vaziri, is that the sentence of imprisonment be served by way of full-time imprisonment.
What I have said in these reasons will explain why I have declined to make a home detention order with respect to the Offender Vaziri, despite the existence of a favourable assessment report: s.78(7) Crimes (Sentencing Procedure) Act 1999.

Orders A2

With respect to the Offender A2, I note that on 18 March 2016, I imposed an aggregate sentence of imprisonment for 15 months with a non-parole period of 11 months, the execution of which has since then been stayed.
A2, I confirm the sentence of imprisonment comprising a non-parole period of 11 months commencing on 9 June 2016 and expiring on 8 May 2017 with a balance of term of four months commencing on 9 May 2017 and expiring on 8 September 2017.
I direct that the sentence of imprisonment is to be served by way of home detention.
In accordance with the home detention assessment report, I direct the Offender A2: 1. to proceed directly to her home; 2. to contact forthwith, by telephone, the Corrective Services NSW Community Compliance and Monitoring Group to advise of her entry to the home detention program. Kubra Magennis
With respect to the Offender Magennis, I note that on 18 March 2016, I imposed an aggregate term of imprisonment for 15 months with a non-parole period of 11 months, the execution of which has since then been stayed.
Kubra Magennis, I confirm the sentence of imprisonment comprising a non-parole period of 11 months commencing on 9 June 2016 and expiring on 8 May 2017, with a balance of term of four months commencing on 9 May 2017 and expiring on 8 September 2017.
I direct that the sentence of imprisonment be served by way of home detention.
In accordance with the home detention assessment report, I direct the Offender Magennis to contact forthwith, by telephone, the Corrective Services NSW Community Compliance and Monitoring Group, and the Campbelltown District Office of Community Corrections, for the purpose of commencing the sentence by way of home detention and to proceed directly to the Campbelltown District Office at Minto. Shabbir Vaziri
With respect to the Offender Vaziri, I note that on 18 March 2016, I imposed an aggregate term of imprisonment for 15 months with a non-parole period of 11 months, the execution of which has since been stayed.
Shabbir Vaziri, I confirm the sentence of imprisonment comprising a non-parole period of 11 months commencing on 9 June 2016 and expiring on 8 May 2017 with a balance of term of four months commencing on 9 May 2017 and expiring on 8 September 2017.
I decline to order that the sentence of imprisonment be served by way of home detention. The sentence is one of full-time imprisonment.
In accordance with s.50 Crimes (Sentencing Procedure) Act 1999, I direct that Shabbir Vaziri be released on parole at the expiration of the non-parole period on 8 May 2017. Explanation of Home Detention Order Applicable to the Offenders A2 and Magennis
Section 83 Crimes (Sentencing Procedure) Act 1999 requires a court which has made a home detention order in relation to an offender sentenced to imprisonment, to ensure that all reasonable steps are taken to explain to the offender (in a language that the offender can readily understand): 1. the offender's obligations under the home detention order; and 2. the consequences that may follow if the offender fails to comply with those obligations.
I note that the Offenders A2 and Kubra Magennis are both fluent in English.
The home detention assessment reports with respect to the Offender A2 and Offender Magennis indicate that the terms and conditions of a home detention order have been explained to each Offender, and each has signed a home detention undertaking to comply with her obligations under the home detention order, in accordance with s.78(d) Crimes (Sentencing Procedure) Act 1999.
I inform each of you that if there is a breach of your obligations under the home detention order, the State Parole Authority may make an order revoking the home detention order in accordance with ss.166-168A Crimes (Administration of Sentences) Act 1999. A consequence of revocation of the order is that you would be taken into custody to serve the balance of the sentence by way of full-time imprisonment.

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