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District Court 21 June 2024

R v AR

[2024] NSWDC 307

Fraud & dishonesty
“EXIT TRAFFICKING ” OFFENDER AND VICTIM MARRIED VICTIM ON PARTNER VISA VICTIM ABLE TO RETURN TO AUSTRALIA MULTIPLE ACTS OF DECEPTION LACK OF REMORSE

Citation: R v AR [2024] NSWDC 307
Court: District Court of New South Wales
Date: 21 June 2024
Judge(s): Grant DCJ

Background

The offender, an Australian citizen who had migrated from Afghanistan as a refugee in 2008, entered an arranged marriage with the victim in Afghanistan in 2014. The victim arrived in Australia in March 2017 on a partner visa sponsored by the offender, and moved into the family home in Merrylands with the offender, his mother, and his brother. The relationship between the victim and her mother-in-law deteriorated significantly, and in December 2017 the mother told the offender she no longer wished to live with the victim.

In January 2018, the offender told his wife they would travel together to Afghanistan on a charity trip, and that she could visit her family while he completed duties in Kabul before joining her. When the victim expressed concern that the trip was intended to return her to Afghanistan permanently, the offender reassured her it was not. He then attended a travel agency, booked a return ticket to Australia for himself and a one-way ticket for his wife, and arranged for a false itinerary to be created showing his wife a return flight that had never been booked.

The couple departed Australia on 27 January 2018. Once the victim travelled on to her hometown of Mazar-i-Sharif, the offender boarded a return flight to Australia on 30 January 2018, leaving her behind and withdrawing his sponsorship of her partner visa. The victim was ultimately able to return to Australia.

  • Whether the offender's conduct satisfied the elements of "exit trafficking" under s 271.2(1A) of the Criminal Code Act 1995 (Cth), specifically whether deception had been used to obtain the victim's compliance in leaving Australia.
  • Whether the seriousness of the offending warranted an immediate term of full-time custody, or whether a community-based sentence was appropriate.
  • What the correct sentence was, taking into account the guilty plea discount, the offender's personal circumstances, the onerous bail conditions endured, and the absence of remorse.

Decision

Grant DCJ found that the offending was very serious. The offender had engaged in multiple, sustained acts of deception over several weeks: fabricating a reason for the trip, obtaining a false return itinerary, reassuring the victim when she raised doubts, sending photographs mid-journey to create the impression of a normal family trip, and writing a letter withdrawing his visa sponsorship upon returning to Australia. The court characterised the conduct as treating the victim as an expendable chattel and described it as a grave breach of the trust inherent in the marital relationship.

The court rejected the defence submission that the custodial threshold had not been crossed. Grant DCJ held that the exploitation of a vulnerable victim who was wholly dependent on the offender's continued visa sponsorship, combined with the deliberate and calculated nature of the deception, meant a non-custodial sentence would be inadequate. The court also found that the need for denunciation and condemnation of such conduct weighed heavily in favour of full-time custody.

On mitigation, the court accepted that the offender had been subject to strict and onerous bail conditions for approximately five years, including daily reporting for around three years and restrictions on contact with his mother and brother. These conditions were found to have had a real psychological and practical impact. However, the court noted the absence of genuine contrition or victim empathy, which limited the weight given to subjective factors in the offender's favour.

The undiscounted sentence of two years and six months was reduced by 15 per cent to reflect the guilty plea, resulting in a head sentence of 25 months. The court structured the sentence so that 12 months would be served in custody, with the balance subject to a recognizance release order.

Orders Made

  • The offender is convicted of the offence under s 271.2(1A) of the Criminal Code Act 1995 (Cth).
  • The undiscounted sentence is 2 years and 6 months; after a 15 per cent guilty plea discount (rounded down), the total sentence is 2 years and 1 month (25 months).
  • The offender is to serve 12 months in custody, backdated by 4 days to account for time already served; the sentence commences 17 June 2024.
  • The offender is eligible for release on 16 June 2025.
  • Upon release, the offender is to be placed on a recognizance release order under s 20(1)(b) of the Crimes Act 1914 (Cth), on surety (without security) of $100, with a condition of good behaviour for two years.

Key Takeaways

  • The District Court confirmed that s 271.2(1A) of the Criminal Code Act 1995 (Cth), which criminalises "exit trafficking," applies to conduct occurring within a marriage, including where a husband uses sustained deception to cause his wife to leave Australia against her true wishes.
  • A conviction under s 271.2(1A) does not require physical coercion; the use of deception alone to obtain the victim's compliance with the exit is sufficient to establish the offence.
  • Where offending involves a deliberate pattern of deception, exploitation of visa dependency, and a serious breach of marital trust, a sentence of two years or less was found to be inadequate, notwithstanding the offender's extended period on onerous bail conditions.
  • The absence of remorse and victim empathy significantly constrained the weight the court was prepared to give to the offender's subjective circumstances.
  • Under Commonwealth sentencing principles, a court must not impose imprisonment unless satisfied no other sentence is appropriate in all the circumstances; here, the gravity of the conduct and the need for denunciation satisfied that threshold.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 271.2(1A)
- Crimes Act 1914 (Cth), ss 16A, 17A, 20(1)(b)

Cases
- Bravo v R [2015] NSWCCA 302
- DPP (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Faehringer v R [2017] NSWCCA 248
- R v CGT [2017] NSWCCA 163
- Mills v R [2017] NSWCCA 87
- Saddler v R [2009] NSWCCA 83
- Stanley v DPP [2023] HCA 3
- Xiao v R (2018) NSWLR 1
- Zheng v R [2023] NSWCCA 64