Supreme Court New South Wales Medium Neutral Citation: R v A2; R v KM; R v Vaziri (No. 19) [2015] NSWSC 1700 Hearing dates: 12 November 2015 Date of orders: 12 November 2015 Decision date: 12 November 2015 Jurisdiction: Common Law - Criminal Before: Johnson J Decision: Conditional bail granted to each Offender Catchwords: CRIMINAL LAW - bail following conviction by jury - two Offenders guilty of female genital mutilation contrary to s.45 Crimes Act 1900 (two counts) - third Offender found guilty of being an accessory after the fact to the s.45 offences (two counts) - maximum penalty for all offences (in 2012) seven years' imprisonment - detention application by Crown following verdicts - s.45 offences not show cause offences - whether unacceptable risk - whether risk of flight - past compliance with bail conditions by Offenders - bail granted with more stringent conditions Legislation Cited: Bail Act 2013 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 Texts Cited: --- Category: Procedural and other rulings Parties: Regina (Crown) A2 (Accused) KM (Accused) Shabbir Mohammedbhai Vaziri (Accused) Representation: Counsel: Ms NL Williams (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused KM) Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused) File Number(s): 2012/280081 (A2)2012/285455 (KM)2012/285639 (Vaziri) Publication restriction: --- Judgment 1. JOHNSON J: Following a trial which occupied some nine weeks, the jury has today convicted each of the Offenders KM, A2 and Shabbir Mohammedbhai Vaziri, of the primary counts brought against each of them. 2. The offences found proved beyond reasonable doubt against KM and A2 are offences under s.45 Crimes Act 1900 of mutilating the clitoris of C1 and C2, the daughters of A2, on occasions (some years apart) when each girl was about seven years old. 3. The Offender Vaziri was convicted by the jury of being an accessory after the fact to the primary offences committed by KM and A2 against C1 and C2. 4. Following the jury's verdicts, the Crown has made a detention application seeking that each Offender be refused bail. 5. It is necessary for the Court to consider matters relevant under the Bail Act 2013. 6. An offence under s.45 Crimes Act 1900 is not a show cause offence for the purpose of the Bail Act 2013. The task for the Court is to undertake an assessment of unacceptable risk by reference to matters contained in the Act. 7. The Crown has submitted, in effect, that custodial sentences are inevitable and that that bears upon the grant of bail at this time. The Crown has also adduced oral evidence as to the concerns of the Officer-in-Charge as to flight with respect to each of the Offenders, and submissions have been made, as well, on other aspects. 8. Counsel for each Offender has submitted that bail ought not be refused and that the appropriate step is to grant bail on certain conditions. 9. I should note a number of matters concerning this case. The maximum penalty for offences under s.45, and offences of being an accessory after the fact for those offences, is seven years' imprisonment. The maximum penalty was increased to 21 years' imprisonment at a time after the commission of these offences. Accordingly, for the purpose of this application and ultimately for the purpose of sentencing, the Court will have regard to the maximum penalty of seven years' imprisonment. 10. The Crown case with respect to each Offender involved an allegation of mutilation of the clitoris of each child in the form of cutting or nicking of the clitoris. There was medical evidence on this issue which involved an assessment of whether there were any visual signs of injury. There was, in addition to the medical evidence, the evidence of each young girl and other evidence, including a substantial body of telephone intercept and surveillance device evidence, which involved damaging conversations between the Offenders and others concerning the circumstances of what happened to each girl. 11. As I observed in my judgment R v A2; R v KM; R v Vaziri (No. 2) [2015] NSWSC 1221 at [225], the degree of injury or harm established in a particular case under s.45 would be relevant to the question of penalty. In this context, I referred to s.21A(2)(g) and (3)(a) of the Crimes (Sentencing Procedure) Act 1999. 12. As the Crown rightly points out, any assessment of injury, and the extent of injury, will involve consideration not only of the physical consequences of the offences, but the psychological and other consequences in both the short and longer terms. It should be noted, however, that this is not a case involving excision or infibulation. It is a case of mutilation in circumstances where I directed the jury, in accordance with my ruling in R v A2; R v KM; R v Vaziri (No. 2), that "mutilate" meant injure to any extent. These matters are relevant for present purposes in assessing the nature and gravity of the offences for which each Offender has been convicted. 13. These are, on the face of it, serious offences. One Offender (A2) is the mother of the two girls who, on the evidence and on the verdicts, requested KM to carry out the procedure on each girl. KM has been convicted of serious offences involving a willingness to carry out acts of this sort. The evidence, of course, discloses that she has been, in her working life, a nurse and midwife. The Offender Vaziri, although not present when the offences were committed, was (on the electronic evidence) heavily involved in steps to divert the investigation and to suggest that members of the Dawoodi Bohra community say things to police which, according to the verdicts of the jury, were designed to effectively deflect the investigation of the offences of KM and A2. 14. The nature of the penalties which may be imposed in this case will be a matter for careful consideration. It will be necessary, in reaching that decision, to have regard not only to the nature and circumstances of the offences, but the circumstances and background of the Offenders. Whether a custodial sentence is ultimately imposed is a matter which will be a live question at the sentencing hearing. For the purpose of this bail determination, having regard to the maximum penalties and other factors presently known, there are open questions as to the nature of the penalty which should be imposed in each case. I say no more because there is a need for careful consideration of evidence which will be presented at the sentencing hearing, and submissions by reference to that evidence, in the circumstances of this novel case. This appears to be the first case in this State that has gone to trial for offences of this type in the 20-odd years that the law has existed in this State. 15. I turn to the question of unacceptable risk. "Unacceptable risk" for the purpose of s.19(2) Bail Act 2013 is an unacceptable risk that the accused person will fail to appear at any proceedings, commit a serious offence, endanger the safety of victims or individuals in the community or interfere with witness' evidence. 16. The Crown argument here relates to the first of those factors, namely concerns as to appearance in the future on the part of the Offenders. 17. It is necessary for the Court, as part of the consideration of unacceptable risk, to assess bail concerns for the purpose of s.17 of the Act. Relevant to the question of bail is the bail history of each Offender. Each of them was arrested and charged in September 2012. In the case of KM, the bail conditions which have been applicable for some considerable period have restricted only her conduct or contact with the children of the [A] family, and a condition that she not in any way conduct or facilitate female genital mutilation on any person. There has not been, for some time, any passport surrender condition, nor condition that she not attend any point of departure from Australia, nor any reporting condition. 18. In the case of A2, there are conduct conditions with respect to her children. There has not been, since February 2014, a passport surrender condition or a condition concerning attending points of departure, nor has there been a reporting condition. 19. In the case of Shabbir Vaziri, there is evidence from Detective Sergeant Stek of concerns that he had back in 2012. However, I note that for a considerable period now, the bail conditions concerning Mr Vaziri appear to have been only to be of good behaviour and to reside at an address in [xxx]. There has not been any passport surrender condition, nor a condition preventing attendance at an international point of departure, nor a reporting condition. 20. There is evidence that the Offenders have, in fact, travelled overseas and returned from time to time, since the charges have been on foot. 21. KM is 72 years old, she is a citizen of Australia and has resided in Australia since 1977. She has a daughter living in Australia and she is married to an Australian. She is retired from her former employment as a nurse or midwife and there is material before the Court indicating that she has had some serious health issues which affect her and which bear upon any assessment as to the risk of flight. 22. A2 is now 38 years of age. She is married to A1 who is a [XXX]. She has four children living in Australia, two of whom, of course, are the young girls involved in this case. Any risk of flight in her case must have regard to the practical reality of the ties of her family, including the girls, in this country. 23. Shabbir Vaziri, who is 59 years old, is not a citizen of Australia. He is here on a form of working visa. He has fewer ties in Australia. That said, as I have indicated, despite the flight concerns expressed, he has not failed to comply with any bail conditions and his bail conditions have in fact been relatively limited. 24. I have regard, of course, to the very important consideration that each Offender has now been convicted by the jury of the offences. The presumption of innocence has been removed. 25. To the extent that there is a risk of flight in this case, I am satisfied that that risk may be met by the imposition of appropriate conditions. I do propose to grant bail with respect to each of the Offenders. 26. Reflecting the changed circumstances and the fact that each has been convicted, the conditions to be imposed will be significantly more onerous than those presently existing. I have regard to Mr Bouveng's submission that the Court has to be satisfied that conduct requirements as to conditions of bail are required. However, the factors which I have referred to so far, including the changed circumstances arising from the verdicts, warrant the conduct requirements which I intend to impose. 27. With respect to each Offender, there will be a condition that each surrender his or her passport and not apply for any new passport or travel document. There will be a condition not to approach any point of international departure. There will be a residential condition and a reporting condition. In the case of each of the female Offenders, they will report two days a week. In the case of Mr Vaziri, he will report four days a week. I am satisfied, to the extent that his lack of ties and the fact that he is not an Australian citizen means that there ought be further restrictions upon him, that a reporting condition of that type is appropriate. There will also be in the case of Mr Vaziri a requirement that a surety in the sum of $10,000 be provided. [Further submissions were made concerning the proposed conditions, including a submission that an increased reporting condition be imposed upon Mr Vaziri and not a surety condition - see T18-22] 1. I had reached the point where I had indicated that I would grant bail with conditions to each Offender. The risk which calls for the imposition of conditions arises from the issue raised by the Crown with respect to non-appearance. 2. I will leave in place, with respect to each of A2 and KM, the previous conditions aimed to provide continuing protection to the girl members of the [A] family. 3. Firstly, with respect to KM, I am satisfied that bail should be granted with conditions. The conduct requirements which I set are as follows: 1. She is to be of good behaviour. 2. She is to live at [XXX]. 3. She is to report to the Campbelltown Police Station each Tuesday and Thursday between the hours of 8.00 am and midnight. To appear before the Supreme Court of New South Wales on 5 February 2016 and thereafter as required. 4. She is to surrender her passport or passports, by delivery of that passport or passports to the Officer-in-Charge of the Campbelltown Police Station by 6.00 pm today. 5. She is not to apply for any new passport or travel document. 6. She is not to go within 300 metres of any point of departure from the Commonwealth of Australia. [Further submissions were made concerning the proposed conditions - see T22-23] 1. I add a further condition that KM must not, in any way, conduct or facilitate female genital mutilation on any person. 2. I turn to the Offender A2. I am satisfied that bail should be granted with conditions. The conduct requirements with respect to A2 are as follows: 1. She is to be of good behaviour. 2. She is to live at [XXX]. 3. She is to report to Castle Hill Police Station each Tuesday and Friday between the hours of 8.00 am and 8.00 pm. 4. She is to appear before the Supreme Court of New South Wales on 5 February 2016 and thereafter as required. 5. She is to surrender her Australian and Kenyan passports to the Officer-in-Charge of Castle Hill Police Station by 3.00 pm today. 6. She is not to apply for any new passport or travel document. 7. She is not to go within 300 metres of any point of departure from the Commonwealth of Australia. [Further submissions were made concerning the proposed conditions - see T23-24] 1. I impose the following additional conditions with respect to A2: (h) She must not assault, molest, harass, threaten or otherwise interfere with the protected person or persons with whom she has a domestic relationship. (i) She must not engage in any other conduct that intimidates the protected person or persons with whom she has a domestic relationship. (j) She must not stalk the protected person or persons with whom she has a domestic relationship. The persons in need of protection specified as protected persons for the purpose of this condition are [XXX]. 1. With respect to the Offender Vaziri, I am satisfied that the risk referred to by the Crown concerning his attendance at Court is appropriately met by the fixing of bail with conditions. I impose the following conduct requirements: 1. He is to be of good behaviour. 2. He is to live at [XXX]. 3. He is to report to Auburn Police Station each Monday, Tuesday, Wednesday, Thursday, Friday and Sunday between the hours of 8.00 am and 8.00 pm. 4. He is to appear before the Supreme Court of New South Wales on 5 February 2016 and thereafter as required. 5. He is to surrender his Indian passport to the Officer-in-Charge of the Auburn Police Station by 3.00 pm today. 6. He is not to apply for any new passport or travel document. 7. He is not to go within 300 metres of any point of departure from the Commonwealth of Australia. ************* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 November 2015