Matters personal to the offender
33The offender did not give evidence in the sentence proceedings. The material I have as to his personal circumstances is confined to various psychiatric and psychological reports, medical records, and the written determination of the independent merits review I referred to earlier. The author of the psychiatric report, Dr Stephen Allnutt, was called to give further evidence at the sentence hearing last week.
34Mr Price objected to the Crown's tender of the independent merits review determination on the basis of relevance. Having considered all of the evidence, it appears to me to be relevant to the offender's credibility which is, in turn, relevant to the history he gave to the authors of reports.
35The offender was born in Tehran, Iran, in 1981 and is now aged 32. He was raised by his parents and has two sisters and two brothers. He received a modest degree of school education. He then worked selling cigarettes as a street vendor, according to what he told the psychologist; he told Dr Allnutt he made signs and reflectors and bought goods from Turkey which he transported to Syria. He is single with no children.
36The history the offender provided to the authors of reports as to what occurred that prompted him to leave Iran is inconsistent and it reflects adversely upon his credibility and, consequently, upon a significant opinion expressed by Dr Allnutt to the effect that the offender was mentally ill.
37The offender told Dr Allnutt that he decided to leave Iran after he was released from a three-month period in the notorious Kahrizak detention centre. There he was beaten with cables and batons and a number of fellow inmates died. He had been arrested during a period of protests.
38He told the author of the psychological reports, Ms Shakeh Momartin, that he participated in demonstrations and protests against the government during the 2009 Iranian elections. He told her that the detention centre he was sent to after his arrest housed 50 inmates but there was really only space for 20. He described to her in more detail the nature of the torture that was inflicted upon the inmates. They received one potato and were allowed one toilet visit per day. Ultimately the prison became so notorious that it was closed down and the inmates were released or transferred elsewhere.
39Ms Momartin recorded that the offender told her that he found it difficult to adjust after his release; he stayed inside his house for six months trying to recover from what he had experienced and witnessed. She said, "He reported that for the next two years, he lived in fear of being re-arrested and worked only sporadically in his selling job. Feeling unable to function, a friend introduced him to a person who arranged to obtain a passport for him, which he used to leave the country by plane to Malaysia".
40One of the problems with that account is that it can only have been a matter of months that he either stayed inside his house or "lived in fear of being re-arrested". It is notorious that there were protests that followed the announcement of the disputed result of the Iranian presidential election in June 2009 and the offender was in Australia by January the following year.
41A difficulty with the offender's account to both Dr Allnutt and Ms Momartin is the account he gave during his Refugee Status Assessment. His account then was that there were protests in June 2009 against a rise in the cost of fuel and that one day when he was on his way to work, he and others were arrested and taken to Kahrizak where he remained for 2 months before being let out without explanation. He later told the independent merits reviewer that people protesting against the rise in the price of fuel set fire to a petrol station across the road from where his father was selling cigarettes. (I note that he told Ms Momartin that he had to work because his father was unable to.) He also told the reviewer that he had run away after the petrol station fire but had been arrested the following day after he had left his house. He also said that there were about 300 inmates in Kahrizak.
42The Crown Prosecutor asked Dr Allnutt about inconsistencies in the history given by the offender and he replied, in effect, that mentally ill people are capable of telling lies; in other words, telling lies did not mean that a person was not mentally ill. But the offender's arrest and subsequent detention at Kahrizak could be expected to be something he would well remember and would be the most prominent thing he would talk about when seeking asylum as a refugee. However, it appears he said nothing about it when first interviewed after his arrival in Australia. On that occasion it is said that he claimed he left Iran because he was "a stateless Kurd and was not allowed to continue to study in Iran".
43Allowance should be made for difficulties with interpreters involved in the various interviews and also for the accuracy with which the report writers recorded what he had told them. Nevertheless, the difference in the accounts given about one apparently significant feature of the offender's personal history is marked. It highlights the need for considerable caution in accepting what he has said on that, and other, subjects.
44The offender told Dr Allnutt that he found life on Christmas Island initially a good experience but over time his mental state worsened. He felt depressed when at Villawood. He experienced the suicide of two fellow detainees; one who fell from a balcony and the other who hanged himself in a bathroom. The second of these men had been a friend.
45By the time of the disturbance in April 2011 his application for refugee status had been refused and he was pessimistic about the pending result of the independent merits review. He was sleeping poorly and when he did manage to sleep he had nightmares. He told Dr Allnutt that he was not sure how he became involved in the events of 20 April and that a lot of things led to his involvement. People were dying in the detention centre; he saw "a lot of people having their lives destroyed in front of his eyes". He believed that the events were "due to God's hand; it was said in the Bible and Koran whenever there was oppression and injustice it would not last long".
46He is also recorded as having said that he "became involved because he was one of God's creatures; he felt he had to become involved because God wanted to make him understand things; he said at the time he was thinking about freedom for everyone not himself; he wanted to achieve freedom; he saw it as God's will that the event occurred". In another interview with Dr Allnutt he described the disturbance as "a divine happening".
47He also told Dr Allnutt that he was not thinking at the time about it being wrong; awareness of the wrongfulness became more apparent to him later after he had been in gaol. He said that he "felt sorry about it" but "remained distressed ... for those that had lost their lives in Villawood".
48The offender's reference to religious matters is not confined to what he said about the events of 20 April 2011. He also said things such as "that signs told him things that were going to happen, that if something bad was going to happen he would feel something hit the bottom of his foot". When Dr Allnutt asked him what it was, "he said it was an angel, but God knew about this; he then spoke about angels getting 'into' him, that he did not know how angels got into him, but he knew that angels did come into him; he said everybody had an angel and went on to state that he did not know why God had chosen him; that possibly an angel had felt merciful and come into him". He made similar claims in January and February 2012 when seen by a Dr Daylan when in corrective services custody.
49Dr Allnutt made a diagnosis that the offender was and is suffering from a chronic psychotic disorder. Differential diagnosis included schizophrenia, schizoaffective disorder and delusional disorder. Schizotypal personality disorder was also a possibility. He also said that through the period of time the offender was at Villawood he developed depressive symptoms consistent with a chronic adjustment disorder with a depressed mood, and anxiety in the form of depersonalisation and derealisation episodes, and probably exacerbation of his religious delusional beliefs.
50The problem with this is that Dr Allnutt based these diagnoses largely on the history given by the offender. A most significant aspect of the history is the offender's religious beliefs that, if truly held, are clearly delusional. Dr Allnutt did not readily accept the offender's history; he said in his evidence that he started from a point of scepticism but arrived at the diagnoses, or possible diagnoses, on balance, after taking into account a range of factors that he identified.
51There are a number of reasons, but two in particular, that cause me to doubt the validity of Dr Allnutt's opinion. I do not say that lightly because I have the utmost respect for him; he has given evidence and provided reports as a forensic psychiatrist in many cases over many years and his expertise is undoubted. The fact remains that I am of the view that the offender's account is unreliable.
52The first reason I have already described: the incident that he claims he experienced in 2009 and the various inexplicably different versions of it. A second matter that is troubling is that there is no record of any claim by the offender of anything that could be regarded as indicative of delusional religious beliefs prior to him being prosecuted for his involvement in the events of 20 April 2011.
53There is no hint of the offender having such beliefs in any of the material derived through the refugee status assessment and independent merits review. There is, again, no hint in either of the two psychological reports prepared by Ms Momartin. Her reports are said to have been the product of assessments made on 25 August 2010 and 24 February 2011, each of two hours duration.
54This is quite surprising given that Ms Momartin was endeavouring to explore his thought processes. She did so to an extent that prompted her to conclude that he had anxiety symptoms, Post Traumatic Stress Disorder symptoms and depressive symptoms. Her observations recorded in the reports include matters such as, "[t]hought content revealed no evidence of delusions, paranoia or suicidal ideation". Dr Allnutt offered possible reasons why the delusional religious beliefs he thought the offender exhibited might not have been uncovered during Ms Momartin's psychological evaluations, but I believe it is a more likely explanation that the offender did not hold such beliefs. I have also taken into account what Dr Allnutt said in his evidence about people with psychotic illnesses retaining the ability to tell lies.
55I am prepared to accept that the offender was anxious and feeling depressed at the time of the offence. But, with great respect to Dr Allnutt, I am not prepared to accept on the balance of probabilities the diagnoses he made.
56Whilst I am not satisfied with the credibility of certain of the history provided by the offender, I am prepared to accept that he was the victim of some experiences in his home country, perhaps including torture, that were the genesis of his depression and anxiety which, in turn, were exacerbated by the experience he has had in immigration detention in this country. I am also prepared to accept such matters as that the journey to Australia was harrowing; that there was overcrowding at times at Christmas Island; and that the experience of other detainees committing suicide was distressing. I also accept the evidence of the offender having been involved in self-harming behaviours on a number of occasions. Being in detention in a foreign country, many thousands of kilometres from his friends and family, with no clarity as to what the future might bring, must also have been a significant contributor to his depression.
57The offender has not otherwise transgressed against the criminal law since coming to this country in January 2010. There is material within the independent merits review report that suggests he previously had some encounters with the criminal law of Iran but the material is not sufficiently clear for it to be taken into account. Accordingly, I am prepared to treat the offender has having no significant record of previous convictions and, on that basis, as being of prior good character.
58I say that despite some other material that could, on one view, be regarded as indicating that the offender has misconducted himself on a number of occasions whilst in immigration detention. However, the information is scant and I am prepared to give him the benefit of the doubt because those incidents could likely have been borne of anger and frustration about the circumstances of the detention of himself and others; he does not seem to be a person who is averse to expressing such emotions by way of protest, for example, by way of a hunger strike.
59With that finding of good character in mind I am also prepared to accept on the balance of probabilities that the offender has good prospects of rehabilitation and is unlikely to re-offend. Much will depend of course upon him receiving favourable treatment for his psychological issues.
60I am not satisfied that the offender is genuinely remorseful. He acknowledged to Dr Allnutt and others that his actions on 20 April 2011 were wrong. However, nowhere does it appear that he has given any thought to the plight of the Serco staff who were so put in fear by the events in the Fowler Compound that night that they cowered behind the office wall and were eventually driven to evacuate for their own safety.
61I am prepared to accept that the offender will find a gaol environment more onerous than for more typical inmates. To date he has spent about 15 months in immigration detention, then 10.5 months in gaol, and then just over 1 year again in immigration detention. A return to gaol now with that history, coupled with the facts that he has limited English language skills and will not be able to receive visits from family and friends as other inmates can, will render his time considerably more onerous.
62The plea of guilty to affray was entered on 19 March 2013, the day before the Crown case closed. The trial commenced with the empanelment of the jury on 11 February and in the preceding fortnight there had been the determination of various pre-trial issues. Any utilitarian benefit flowing from the offender's plea is insignificant and so too will be any impact upon the sentence I impose.