The Queen v Najibi [2015] VSC 260

2 The maximum sentence for incitement to murder is life imprisonment.

3 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.

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

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

6 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.

7 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.

8 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.

9 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 up to the engagement party, Zahida had felt immense pressure from the extended family to marry. Her uncles and grandparents made threats to her, and informed her that her actions were bringing shame upon the family.

10 The threats duly subsided after the engagement party, and Zahida was able to defer the proposed marriage to you until after she had completed her university degree. However, upon her graduation in mid-2010, the pressure resumed. The mounting pressure caused Zahida to have panic attacks that hospitalised her on at least one occasion. She became depressed and anxious, and she lost her appetite. Eventually, in November 2010, Zahida left for work one morning and did not come home. Her family had no idea where she was but subsequently learned that she had left home to marry Ahmad Keshtiar. Zahida and Ahmad moved to Queensland, married and Zahida soon fell pregnant.

11 During the pregnancy Zahida became ill and Ahmad and Zahida returned to Melbourne. They found accommodation in Rufus Street in Epping. Zahida continued to have little or no contact with her family and kept her address a secret from many of them.

12 It seems that you got on with your life after Zahida effectively broke off the engagement by leaving home in November 2010. You studied and worked in a variety of jobs. You owned and ran your own pizza shop for a period. Having started a science-based degree upon leaving school, you commenced a Diploma in Financial Planning.

13 By late 2011, you were working as a security guard at the Commercial Hotel in Warragul and you had become an acquaintance of Johnstone-Brown.

14 Johnstone-Brown gave evidence that you incited him to murder Ahmad Keshtiar in the context of your attempts to recover a drug debt from him, which he said included two savage beatings, a kidnapping and threats to kill him and his girlfriend. The jury did not accept that the beatings and threats took place. In finding you guilty of incitement to murder, however, the jury must have been satisfied that there was an arrangement between you and Johnstone-Brown for the murder of Mr Keshtiar.

15 The jury heard evidence of a series of meetings in January and February 2012 between you and Johnstone-Brown, sometimes in the company of Johnstone-Brown's friend, Dean Pratley. Johnstone-Brown gave evidence that you met in parks in and around Cranbourne and in an internet café in Dandenong. Pratley gave evidence of being present at some of these meetings. In addition, there was evidence of telephone conversations between you and Johnstone-Brown, and about the particular method that you and Johnstone-Brown used when communicating with one another by telephone, apparently so that your calls could not be traced to one another.

16 Johnstone-Brown gave evidence that it was at a meeting at the internet café in Dandenong that you gave him a photograph of Ahmad Keshtiar taken from Facebook, printouts from Google maps of the Rufus Street location, and a picture of a Toyota Rav 4 of the kind that Mr Keshtiar drove that was taken from a car sales website. He said that you wrote down the registration number of Mr Keshtiar's car and his Rufus Street address. Johnstone-Brown subsequently gave these documents to an undercover policeman in the belief that the undercover policeman would carry out the 'hit' on Mr Keshtiar.

17 Johnstone-Brown also gave evidence that you provided him with money to buy a shotgun for the purpose of the murder. Pratley gave evidence that he saw you give Mr Johnstone-Brown an amount of cash in $50 notes at one of your meetings.

18 It was while he was looking to acquire a shotgun that Johnstone-Brown was contacted by the undercover police officer, who offered to source the gun for him. In fact, Johnstone-Brown sub-contracted the murder to the undercover officer. Johnstone-Brown told the undercover officer that the proposed murder was 'an Afghan culture hit'.

19 You, along with Johnstone-Brown and Pratley, were arrested on 14 February 2012, which was the day of the proposed murder. You were charged with conspiracy to murder, but those charges were dropped approximately two months later, on 23 April 2012. A further 12 months later, on 19 April 2013, you were charged with a number of offences, including incitement to murder. You were briefly in custody after being charged, but were released on bail until your conviction.

21 You were born in Kabul, Afghanistan, on 20 May 1987. You are the eldest of six children.

22 During the time that your family lived in Afghanistan, the country was at war with the Soviet Union. In about 1985, in the context of this war, two of your father's uncles were taken away by the authorities and were never seen again. Your family moved to Pakistan in around 1990. While in Pakistan, another one of your father's uncles was shot because of your family's affiliation with the Afghan Social Democratic Party. Your family came to Australia as refugees in 1996.

23 When your family arrived in Melbourne, your father, although an educated man, became a taxi driver. Your mother remained at home to raise you and your siblings.

24 From 2000 to 2002, your parents owned a fabric shop in Noble Park. During this time, both your parents worked until late in the evening. It was your responsibility to collect your siblings from primary school each day, walk them home and look after them until your parents returned.

25 Your sister, Shobhana Najibi, gave evidence about the attention you gave her and your younger siblings during this time and subsequently. I will describe that evidence presently.

26 Your educational achievements are impressive. On arrival in Melbourne, you attended Wallarano Primary School in Noble Park. You learnt English quickly and showed an aptitude for mathematics and cricket.

27 In 2000, you started high school at Noble Park Secondary College, where you continued playing and excelling at cricket. Throughout high school, you played cricket for both for your school and a local sporting club.

28 You completed your VCE in 2005 with an emphasis on science and maths and, in 2006, you commenced a Bachelor of Applied Science (Biotechnology) at RMIT. You also undertook a night course in security. You worked as a kitchen hand and then as an assistant cook at the Pakenham Inn in 2006 and throughout 2007.

29 In 2008, your father's health started to deteriorate and your family faced mounting financial pressures. As a result, you stopped studying and bought a pizza shop in Berwick in the hope that it would enable you to make a larger financial contribution to your family and provide work for your siblings. You worked both in the pizza shop and at the Pakenham Inn, where you continued as an assistant cook on Saturdays and Sundays.

30 In 2009, your father, who had resumed driving taxis for a living, ceased working due to poor health. At around this time, your mother was diagnosed with cancer of the oesophagus. You became the sole wage earner in the family and you were also responsible for taking your mother to her medical appointments and ensuring she understood the medical advice she was being given. Your mother had a major operation in 2010, but she remains in poor health.

31 In late 2010, you started working as a security guard at the Commercial Hotel in Warragul. You continued working at the pizza shop during the week, and on Saturdays you would leave the pizza shop at 8pm and go to work at the Commercial Hotel until 3 am the following day. Your employer at the Commercial Hotel considered you to be a particularly good and reliable worker.

32 In early 2011, you enrolled in a Diploma of Financial Services (Financial Planning) and a Diploma of Mortgage Broking and Management. At about this time, you were also offered the contract for the management of the security services at the Commercial Hotel, which you accepted. The contract required you to supply appropriately qualified security guards for the hotel on Friday and Saturday nights and to act as one of those guards on each of those nights.

33 In the middle of 2011, you made a decision to sell the pizza shop because the long hours took you and your siblings away from the family home during the evenings. In addition, your mother's father and sister had come to live with you, your family having sponsored their move from Afghanistan. The proceeds from the sale of the pizza shop were used to purchase a larger family home in Pakenham.

34 After completing your financial planning course in October 2011, you looked for work in the financial services sector, but you were unsuccessful. You applied to study for a Masters of Commerce at Deakin University, commencing in 2012. However, in February 2012, you were arrested and charged with conspiracy to murder. You spent 15 days in custody before being granted bail on stringent conditions. You resumed studying for your Masters during the second semester after the charge was dropped.

35 In July 2012, your father sustained serious injuries after falling from the roof of your family home. You remained by your father's side during his lengthy recovery. You completed the second semester of your Master's Degree in October 2012, and shortly thereafter you travelled to Afghanistan to visit family and friends. During this visit, you married an Afghani woman with the intention of sponsoring her to come to Australia. You returned to Australia in January 2013 and began working in security on the Mornington Peninsula.

36 As a result of your arrest in April 2013, you lost your security licence and your job. However, you continued to pursue your Master's Degree and you have completed all but one semester. You worked for a planning firm in St Kilda for approximately eight months while you were on bail, but you had to resign in order to prepare for and attend your trial.

37 Your sister Shobhana gave character evidence on your behalf. Shobhana is the second eldest child in your family. She clearly loves you dearly. She described you as a caring, dedicated and supportive older brother. She described how you would walk your siblings to and from school each day and look after them after school. Your parents worked long hours and were often not home in the evenings, so much of the role of parenting fell to you. Shobhana told the Court that you have always taken a strong interest in your siblings' lives, and have always looked after their welfare. She said that you have consistently encouraged her and your other siblings to focus on their education, and that your first question to her when she visits you in custody is always about your younger brother's progress in school.

38 It is plain from the history I have outlined and Shobhana's evidence that, your offending aside, you have been a very responsible and caring son and brother, and that you have carried a heavy burden as the eldest child in a refugee family in which the parents, in addition to the challenges of dislocation, have experienced serious health issues. You have made a conscientious effort to obtain a good education and to enhance your qualifications in order to give yourself and family members opportunities. You have been a hard and reliable worker who has been prepared do all kinds of menial work in order to get ahead.

39 You have no criminal record and no history of involvement of any kind with the police. It might be said that you have led an exemplary young life. Despite your youth, you have been much relied upon by your family and you have worked hard to care and provide for them. That is a lot for a young person to take on and it stands to your credit.

40 However, the offence of incitement to murder is a serious one, and your offending, which involved inciting a person who was a local thug and 'enforcer' with a serious drug and alcohol problem to go to the home of a young family in the dead of night to kill one of them with a shotgun, merits severe punishment. This conduct is redolent of the lawlessness and brutality from which you and your family fled in the first place.

41 The type of criminal conduct in which you attempted to engage Johnstone-Brown is sometimes referred to as an 'honour killing'. It must be clearly stated that there is nothing at all 'honourable' in what you proposed be done to Mr Keshtiar and that it reflects a skewed moral or ethical paradigm that is entirely unacceptable in this or any society. It shows a profound disrespect for the lives of others and for the rule of law.

42 I consider it likely that you felt pressure from your family to deal with Mr Keshtiar as you did and that you saw it as part of your role as a dutiful son to deal with him thus. However, in considering your moral culpability, I do so on the basis that you were driven by a desire to exact brutal and bloody revenge for what you perceived as a slight. Were it not for Johnstone-Brown's unreliability, your action would have had devastating consequences for Mr Keshtiar and his family, including for his young child, who would have grown up never knowing her father. Your moral culpability is, in my view, high.

43 Although Zahida Najibi and Ahmad Keshtiar did not provide victim impact statements, and Mr Keshtiar put on a show of bravado when he gave his evidence by purporting to be largely unconcerned by the threat to him, I take into account how frightening this experience must have been for them. Both of them knew that Mr Keshtiar was the target of a contract to kill and, apart from the threat to their own safety, they had a tiny, vulnerable infant in their care.

44 In my view, therefore, general deterrence is an important sentencing consideration in this case. In sentencing you, the court must send a clear message that behaviour of this kind is totally unacceptable.

45 As to specific deterrence, I accept that the need for specific deterrence is moderated by your clean record, your successful pursuit of an education and your good work history, all of which equip you to participate well in the life of the community. The crime that you committed was also closely related to a particular circumstance - a broken engagement - that is unlikely to recur (particularly as you are now married).

46 However, the fact that your offending is related to family circumstances and a misconceived desire to avenge a perceived dishonouring of you and your family gives me cause to carefully consider your risk of re-offending and the need for specific deterrence. Once you have served your term of imprisonment, you will be exposed once more to the influences that, I believe, provided a rationale, skewed as it was, for your offending. For this reason, in considering the need for specific deterrence, the weight that would otherwise be given to your stable family life and strong family ties is somewhat reduced.

47 Your counsel submitted that the severity of the sentence that might otherwise attach to your offending should be moderated by reason of the following:

(a) your youth and good prospects of rehabilitation;

(b) the delay between your offending and the matter coming to trial;

(c) the need for parity between your sentence and those imposed on your co-offenders, Johnstone-Brown and Pratley; and

(d) the hardship involved in having to serve a term of imprisonment in protective custody.

49 Although you are now 27 years old, I accept that when you offended, you were a young person and that your youth is a mitigating factor. As I have recognised, you carried a heavy burden for a young person, but worked hard to create a life for yourself and in order to support your family. You have no criminal history and, through your own efforts, good work prospects and the potential for a good future.

50 Despite the reservations I have expressed about how your family might influence you upon your release, I consider that you have good prospects of rehabilitation, and that these prospects should not be cruelled by too lengthy a term of incarceration.

51 In submissions, your counsel listed the many courses that you have engaged in during your relatively short time in custody since verdict. They include specific courses of study, such as maths and IT courses, as well as general courses that deal with the adjustment to prison life. You have also undertaken courses addressing drug and alcohol addiction, despite having never used drugs or alcohol yourself. Your counsel told the Court that you undertook these programs in order to qualify for the Pioneer Prisoners Program, which will involve you supporting fellow inmates and acting as a role model to them.

52 This too points to your prospects of rehabilitation being good, and I accept that they are. The efforts that you have made to rehabilitate yourself while on bail and on remand are also relevant to my consideration of the impact of delay upon your sentence.

53 In your case, there has been a delay of almost three and a half years from offending to your trial. You have spent this time, where possible, working, studying and caring for your family. The way in which you have spent the three and a half years since the offence was committed is relevant to your sentence. I take into account the steps you have taken during the delay to rehabilitate yourself by furthering your education and gaining a toe-hold in professional practice and the fact that, in having to wait so long for the laying of charges and for their resolution, your life has been severely interrupted and you have been caused considerable stress and anxiety.

54 As to the issue of parity in sentencing, the sentence I impose on you should not be such as to give rise to any justifiable sense of grievance having regard to the sentences of your co-offenders, Johnstone-Brown and Pratley.[1] The plan to kill Mr Keshtiar was a plan devised by you for your purposes, but Johnstone-Brown and Pratley are both also guilty of incitement to murder Mr Keshtiar. Their motives were different from yours, but the manner in which the murder was to be carried out was the same.

55 Johnstone-Brown received a sentence of four and a half years' imprisonment, with a minimum of two years' imprisonment. In sentencing Johnstone-Brown, the sentencing judge stated that, but for his plea of guilty, the sentence would have been five years and six months' imprisonment with a minimum of two years and nine months' imprisonment.[2] The sentencing judge also took into account Johnstone-Brown's cooperation with the police which, in her Honour's words, saved him from 'a very lengthy term of imprisonment'.[3]

56 Pratley received a two-year community correction order requiring 400 hours of unpaid community work. But for his plea of guilty, Pratley would have been sentenced to three years' imprisonment with a minimum of 18 months' imprisonment.[4]

57 I do not consider Pratley's circumstances to be truly comparable to yours. Pratley was a very minor player in the incitement to murder Mr Keshtiar. He just happened to be present at times because he was a friend of Johnstone-Brown. For much of the relevant period he thought that he was assisting Johnstone-Brown to buy a gun for drug-related purposes.

58 Johnstone-Brown's role - and level of culpability - is much closer to your own. However, he entered a plea of guilty, assisted the police in their investigation and agreed to give evidence against you. These are important points of difference which attract significant sentencing discounts. Furthermore, because of his long history of psychiatric problems, Johnstone-Brown relied upon Verdins principles and you do not. On the other hand, Johnstone-Brown also had a long history as a petty criminal, including prior and subsequent convictions for violence, and he abused drugs and alcohol. Your circumstances are quite different from these.

59 I cannot ignore the fact that you were the instigator of the offending, that you stood to derive the main benefit from the murder of Mr Keshtiar, and that the benefit was vengeance. As I have said, these factors indicate a high degree of moral culpability and attract a need for general deterrence. Having regard to this, and the importance of Johnstone-Brown's plea of guilty and his agreement to co-operate with the police, I consider that you should receive a significantly higher sentence than Johnstone-Brown.

60 Your counsel submitted that the need for general deterrence could be addressed by the imposition of an appropriate head sentence and a low non-parole period. In support of this submission, reliance was again placed on your youth, your otherwise good character and what were said to be your excellent prospects of rehabilitation. It was submitted that Johnstone-Brown received a sentence with a low non-parole period, despite being a repeat offender from a criminal family, because of his youth and prospects of rehabilitation and that you should have the same consideration.

61 I accept that, having regard to your youth, your difficult family circumstances, your previous good character and your good prospects of rehabilitation, it is appropriate to set a lower non-parole period than would otherwise have been the case.

62 As a final matter, I also accept that because of the need for you to remain in protective custody for at least some period of your sentence, prison for you will be more difficult than it would have otherwise been. This is also a factor to be weighed in the balance when determining your sentence.[5]

63 Balancing all of these considerations, I sentence you as follows.

65 You are convicted of incitement to murder. I sentence you to a term of imprisonment of eight years, with a non-parole period of four years and nine months.

66 I declare that the period of pre-sentence detention reckoned as having been served is 99 days up to but not including today and direct that this declaration and the period be entered into the records of the Court.

[1] Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, 623; Postiglione v R [1997] HCA 26; (1997) 189 CLR 295, 301; Green v R [2011] HCA 49; (2011) 244 CLR 462; Khoa v The Queen [2015] VSCA 80; McCloskey-Sharp v The Queen [2015] VSCA 87; Roujnikov v The Queen [2015] VSCA 97; and Collins v The Queen [2015] VSCA 106.

[2] R v Thorn Brown [2013] VSC 194, [47]-[48].

[4] The Queen v Pratley [2013] VSC 298, [37]-[38].

[5] York v The Queen [2005] HCA 60; (2005) 225 CLR 466, 478 [38] (Hayne J). See also R v Rostom [1996] VicRp 60; [1996] 2 VR 97, 102 as to why the need to serve a prison sentence in protection may be a relevant sentencing consideration.