R v A2; R v Magennis; R v Vaziri (No 23). [2016] NSWSC 282. Johnson J. The Supreme Court has sentenced three offenders t
Judgment Summary Supreme Court New South Wales
R v A2; R v Magennis; R v Vaziri (No 23) [2016] NSWSC 282 Johnson J The Supreme Court has sentenced three offenders to 15 months’ imprisonment and referred each offender for an assessment as to suitability for home detention following their convictions for offences of female genital mutilation (“FGM”) in November 2015. A2, Kubra Magennis and Shabbir Vaziri are the first persons in Australia to be convicted by a jury for FGM offences. In NSW, s 45 Crimes Act 1900 prohibits excision, infibulation or other forms of mutilation to specified parts of the female genital area. The present case concerned an allegation of mutilation to the clitoris. In R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221 Johnson J construed the word “mutilate” to mean an injury, to any extent, to the clitoris (which includes the clitoral head or prepuce). On two occasions between 2009 and 2012, two young girls (known as C1 and C2 in order to protect their identities) were subjected to a procedure known in the Dawoodi Bohra community as “khatna”: a procedure resulting in a nick or cut to the clitoris. “Khatna” has been described as “a right of passage for girls in this culture when they reach seven years of age”. The mother of the girls, A2, selected Kubra Magennis, a trained nurse and midwife, to perform “khatna” on each of C1 and C2 when they were about seven years old. At the time of the procedure, each girl was asked to lie on a bed, naked from the waist down. A2 was present, while Kubra Magennis used a metal instrument, “a bit like a scissor” to perform “khatna”. In returning guilty verdicts for offences under s 45 in respect of A2 and Kubra Magennis, the jury rejected the defence case that the procedure performed on C1 and C2 was purely symbolic and inflicted no injury. Shabbir Vaziri was convicted as an accessory after the fact to the offences committed by A2 and Kubra Magennis. Until his dismissal in February 2016, Vaziri was a religious leader of the Dawoodi Bohra community. He assisted A2, Kubra Magennis and other members of the Dawoodi Bohra community to lie to the police or to withhold relevant information. Vaziri himself gave police false information. Telephone conversations Vaziri had with a range of people, which were legally recorded and played at the trial, indicated his knowledge of the offences against C1 and C2 and demonstrated the extraordinary lengths he went to, including making up a false story, to impede and undermine the police investigation. In the Court’s assessment, the offences were of considerable objective seriousness. While medical examinations indicated no permanent physical injury to either girl, a live issue exists as to the ongoing psychological harm to each of them. His Honour found that each offender knew that the procedure carried out on C1 and C2 was unlawful. Further, it was noted that A2’s offending involved a significant breach of trust in circumstances where her daughters were particularly vulnerable; Kubra Magennis abused her professional vocation This summary has been prepared for general information only. It is not intended to be a substitute or the judgment of the Court or to be used in any later consideration of the Court’s judgment.
in performing the procedure; and Vaziri used his position of authority and responsibility to deflect investigation of the offences. The Court highlighted a number of significant factors in the subjective cases of each offender. A2 continues to live with her children, including C1 and C2. Johnson J acknowledged the significant hardship which the family would suffer if A2 were to receive a full-time custodial sentence. The Court referred to an apology given by A2 to her children in the presence of a psychologist, finding she exhibited genuine remorse and accepted responsibility. In relation to Kubra Magennis, medical evidence before the Court indicated the particular difficulties and risks associated with the imposition of full-time custody in light of her age (72) and ill-health. Health issues were also noted in relation to Vaziri. The Court observed an absence of any acknowledgment of wrongdoing or signs of remorse by Kubra Magennis and Vaziri. General deterrence was of distinctive significance in this sentencing exercise. By the time of the resumed sentencing hearing on 18 February 2016, a number of edicts emanating from Dawoodi Bohra communities all over the world were before the Court. These edicts condemned the practice of “khatna” and directed members of the community not to carry out the procedure. Each edict specifically referred to the convictions of the three offenders in this case. These edicts have been publicised in the international media, including in India (the centre of the Dawoodi Bohra community) contributing to the international movement toward the eradication of FGM. In this way, Johnson J found that “an important purpose of the criminal law and the principles of sentencing has been advanced”. Ultimately, Johnson J was satisfied that a term of imprisonment was required for each of the offenders. After imposing aggregate sentences of 15 months for each offender, his Honour considered alternatives to full-time custody. Johnson J concluded that neither a suspended sentence nor an intensive correction order was suitable and accordingly referred each of the offenders for assessment as to suitability for home detention. The sentencing proceedings were stood over until a date in April to allow the assessment to be undertaken.
This summary has been prepared for general information only. It is not intended to be a substitute or the judgment of the Court or to be used in any later consideration of the Court’s judgment.
