R v A2; R v KM; R v Vaziri (No. 23)  NSWSC 282 (18 March 2016)
The first three people in New South Wales to stand trial for female genital mutilation (FGM) related offences have been convicted and sentenced. Following a nine week trial, and a series of pre-trial applications dealing with evidentiary and procedural questions including the compellability of the child victims to give evidence for the prosecution against their mother (one of the defendants), the defendants were convicted of offences under section 45 of the Crimes Act 1900 (NSW) (the Act). Each was sentenced to 15 months’ imprisonment (with a non-parole period of 11 months) and referred for assessment as to suitability for home detention.
The defendants are members of the Dawoodi Bohra community, a world-wide sect of Shia Islam. Contrary to section 45(1)(a) of the Act, the girls’ mother (known as A2 in the case) was accused of arranging for a retired midwife (known as KM) to carry out FGM on her two daughters (known as C1 or C2) in 2009 and 2012 when they were each seven years old. Mr Vaziri, a religious leader of the Dawoodi Bohra community, was charged with being an accessory after the fact to the primary offences by encouraging witnesses to lie by telling police that they did not believe in or practice female circumcision.
The Crown argued that, on each occasion, what occurred was a form of FGM where some injury was caused by KM to the genitals of each child. The defence denied that any injury was caused to either child, but rather asserted that it was a form of symbolic ceremony where metal (said to be forceps) was laid upon the outside of the child’s genital area, but no injury was caused. The issue to be determined by the jury was what the nature of the procedure performed on C1 and C2 by KM was.
The jury found each of the offenders guilty of the primary counts brought against them. The jury was therefore satisfied that the procedure performed on C1 and C2 amounted to FGM as prohibited by section 45 of the Act.
A key issue in the proceeding which was dealt with in R v A2; R v KM; R v Vaziri (No. 4)  NSWSC 1306 was whether C1 and C2 could be compelled to give evidence for the prosecution against their mother. Section 18 of the Evidence Act 1995 (NSW) (Evidence Act) extends to a child the right to object to being required to give evidence as a witness for the prosecution in a criminal proceeding against the child’s parent if certain tests are satisfied.
After considering evidence given by psychologists, the Court was satisfied that there was a likelihood that psychological harm might be caused to each of C1 and C2, and to the relationship between each of those girls and their mother, if C1 and C2 were called to give evidence. However, having undertaken the balancing exercise required by section 18(6) of the Evidence Act, the Court did not find that the nature and extent of this harm outweighed the desirability of C1 and C2 giving evidence, so that such evidence is available to the jury at trial. Each of C1 and C2 was therefore held to be a compellable witness. In reaching this decision, Justice Johnson considered factors including that:
- the children had already been interviewed on the matter as part of investigations;
- there was a public interest in the Crown having available to it all evidence touching upon the question of guilt of persons accused of serious offences; and
- the children continued to live with their mother, and there had not been a breakdown in the relationship between the children and the mother as a result of the allegations.
This finding of compellability is of particular relevance as most prosecutions involving FGM will almost always involve child complainants being required to give evidence against family members given the context in which such conduct is likely to occur.
In the case of each defendant, an aggregate sentence of 15 months’ imprisonment with a non-parole period of 11 months was ordered. The Court referred each defendant for assessment as to suitability to serve the sentence by way of home detention. Some of the principal considerations of the Court with regard to sentencing were:
- the breach of trust implicit in offences by a mother upon young daughters;
- KM’s abuse of her professional vocation;
- Mr Vaziri’s use of his position of authority and responsibility to seek to undermine and deflect the law, rather than to promote it;
- the importance of personal and general deterrence;
- medical evidence indicated there was no permanent scarring or other residual physical injury to either C1 or C2 but there were likely to be some adverse psychological consequences for each girl as a result of the offences;
- A2 had also been subjected to FGM during childhood;
- the fact that Family and Community Services officers assessed A2’s family and concluded that none of the children needed to be removed from the care of their parents; and
- the impact on the children if A2 was to receive a full-time custodial sentence.
Justice Johnson expressed that he was satisfied there would be significant hardship for A2’s children if an immediate custodial sentence was imposed. He stated that “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”.
This is a significant case in which the Court was called upon to make legal determinations in an array of areas where little (if any) precedent exists. The jury at the trial of the defendants was the first in Australia to determine the question of guilt of persons charged with FGM offences since the provisions were brought in 12 years ago.
It was recognised that there is a particularly strong public interest to prosecute FGM matters to act as a deterrent to other persons who may consider engaging in such practices. In setting an appropriate sentence, the Court had regard to evidence that leaders of the Dawoodi Bohra community around the world had publicly directed that all parents and guardians are not to carry out khatna under any circumstances. The Court held that these steps taken by the Dawoodi Bohra community served the purpose of general deterrence and operated to seek the prohibition and eradication of FGM in all its forms and in all communities.
After the commission of these offences, the maximum penalty for FGM related offences was increased from seven to 21 years’ imprisonment. The intention behind this amendment was to bring the maximum penalty in New South Wales into line with the penalties applicable for performing FGM in other Australian states as well as into line with similar offences in New South Wales such as intentionally causing grievous bodily harm. Nevertheless, for the purpose of sentencing in this case, the Court had regard to the maximum penalty of seven years’ imprisonment applicable at the time the offences were committed. Justice Johnson explained that had the maximum penalty for the offences in question been 21 years’ imprisonment, a significantly different sentencing outcome would have resulted. It could therefore be expected that FGM offences would now attract a much more severe penalty.
The full text of the decision can be found here.
Melanie McLean, Solicitor at King & Wood Mallesons.