THE first people to be found guilty by a jury of female genital mutilation in Australia have escaped a prison sentence and referred for a home detention assessment.

But Justice Peter Johnson told the mother who arranged the female genital mutilation on her two daughters, and the midwife who carried it out, that they would have got a tougher sentence if the offences were committed after May 20, 2014 when parliament increased the maximum penalty from seven to 22 years.

Dressed in their sect’s signature colourful smocks and head coverings, the 38-year-old mother of four girls, who cannot be named, and retired midwife Kubra Magennis, 72, gave no reaction when they were sentenced 15 months, and referred for a home detention assessment for mutilating the clitorises of the girls when they were seven and six.

The former Sydney religious leader of the Shia Muslim sect, Dawoodi Bohra, Shabbir Mohammedbhai Vaziri, 59, was also referred for an assessment for 15 months home detention for being an accessory after the fact to the procedure.

Justice Johnson told the three that he had sentenced them based on the maximum penalty of seven years for genital mutilation, which existed at the time of the offences in 2009 and 2012.

He said if they had committed the offences after the NSW Parliament “trebled” the maximum penalty to 22 years in 2014, “a significantly different sentence outcome would have resulted”.

During the eight-and-a-half week trial held last year, the jury heard the mother, known as A2, had arranged for Magennis to perform the procedure called “khatna” on her daughters on two different occasions in Wollongong and Baulkham Hills between October 2009 and August 2012.

When police began investigating the practice, Vaziri told community members to tell detectives they did not undergo female genital mutilation.

The small Auburn-based sect came to police attention in 2012 after they received a tip-off from a reformist Dawoodi Bohra member, stating the followers practised female genital mutilation.

A detective and a social worker interviewed the two sisters, known as C1 and C2 to protect their identities, at their primary school on August 29, 2012 when the girls told them “khatna” had been performed on them.

C1, then aged 9, said she had received “a little cut down there” while C2, aged 6, said she had been “hurt in the bottom”.

media_camera Shabbir Mohammedbhai Vaziri, 59, was also referred for assessment for 15 months home detention. Picture: John Grainger media_camera Nurse Kubra Magennis was not sent to prison because of her poor health, the sentencing judge said. Picture: John Grainger

In a recording of the interview played to the jury, C1 told the social worker and police officer in her culture “it has to happen to every girl”, but her mother had warned her not to tell anyone about it.

She said the woman who performed the procedure (Magennis) told her to close her eyes and imagine she was a “princess in a garden”.

“She told me to think of that so I didn’t feel as much but I did feel it a little bit ... it hurt,” the girl said.

The sisters were examined at The Children’s Hospital at Westmead but the doctor was unable to confirm or deny if their clitorises had been cut and there was no sign of any permanent injury to the girls.

Defence lawyers Stuart Bouveng and Robert Sutherland SC told the jury it was a “ritualistic ceremony” and the girls were never cut.

During his two hour sentencing remarks this morning, Justice Johnson said despite the seriousness of the offence he would not sentence A2 to prison because it would “punish” her daughters, who still live with her.

“A sentencing outcome that would see those children who are the victims being punished would not serve the process of justice,” Justice Johnson said.

Justice Johnson said he would also not send Magennis and Vaziri to prison because of their poor health.

The case was adjourned to April 22 to allow for the home detention to be completed.

The three were released on bail.