R v Chenarjaafarizad

Facts 8Two detainees, Mehdi Darabi and Amir Morad Mansoor, were seen on the roof of the Macquarie Building early in the morning of 20 April 2011. Thereafter they were seen to engage in various activities which included abusing Serco staff and throwing roof tiles. 9In the early afternoon the activities officer tried to commence a game of soccer but Darabi and Mansoor told him not to because they were "making a point by being on the roof". More tiles were thrown. A detainee on the ground, Mahmood Dadash, approached the activities officer and remonstrated with him in an attempt to have him desist from starting the soccer game. Another detainee, Ali Abdollahi, approached in the company of a large number of other detainees and threw punches at the activities officer but fortunately they did not connect. 10Around the middle of the afternoon a staff member who was taking refreshments to staff near the Macquarie Building was abused, told to "fuck off" and had a tile thrown at him. Mansoor called out, "we're up here for a reason, don't drink in front of us, we are up here for a reason. How dare you eat or drink in front of us. If you drink or eat in front of us, we're going to throw tiles at you". Staff who had formed a cordon around the Macquarie Building to prevent other detainees getting onto the roof were ordered to move back. 11Detainees on the ground threw bedding and water bottles up to the roof. This activity continued and at about 6.00pm. Mansoor called out to staff, "Don't stop them otherwise you'll get a tile thrown at your head". 12More detainees attempted to join Darabi and Mansoor on the roof after 7.00pm. There was a large group on the ground, estimated to be between 40 and 60, aggressively yelling at Serco staff and management. There was a rush towards the Macquarie Building and more detainees made their way to the roof. 13At about 7.30pm, detainees were yelling, "we want freedom". This continued for some time. Some of the detainees on the roof made ropes out of bed sheets to assist others climb up. 14At about 8.00pm, there was encouragement to those on the ground to continue the disturbance and come up to the roof. Tiles were thrown at staff who were trying to prevent them. One tile landed no more than a metre from one staff member who, naturally enough, had concerns for the safety of her staff and the other detainees. 15One officer estimated that at about 8.20pm there were 80-90 detainees around the Macquarie Building. Thereafter the situation deteriorated with more shouting, yelling and abuse, tile throwing and other threatening behaviour towards staff. 16There was a bank of payphone booths near to the Macquarie Building. At about 10.00pm, the offender was seen to be banging on the Perspex side of one of the booths. The Crown contends that he was smashing his fists and banging his head against it. Through his counsel, the offender says that he was banging his head and hitting it with an open hand. The difference is immaterial. 17It was contended on the offender's behalf that he was "upset and behaving abnormally" and was responding to seeing one of the detainees on the roof, Ali Abdollahi, threatening to commit suicide. Based upon the evidence I have heard in the trial, I am doubtful that the latter was genuine but, in any event, without having heard evidence from the offender I am not prepared to draw the inference for which his counsel, Mr Price, contends. 18There was an altercation between the offender and a male member of staff. The offender repeated the demands that were being made by one of the detainees on the roof, Majid Parhizkar, for cigarettes and food. He twice grabbed the staff member and then walked away, raising his arms and saying "fuck you, fuck you". 19Detainees, including the offender, started to run around the compound discharging fire extinguishers. Two witnesses gave evidence of seeing the offender spraying his fire extinguisher in the direction of staff and one said that he then threw it towards staff. The evidence of those witnesses is disputed but the difference is immaterial; it is not suggested that any member of staff was affected by any of the spray or hit by the fire extinguisher itself. 20Detainees dragged wheelie bins on the soccer field where the rubbish was tipped out and then set alight. The offender accepts that he was involved in this activity but denies lighting the fire. I do not think that makes any difference. 21Timber tables and chairs were taken onto the field and put on the fire. The offender denies involvement in this activity but in my view the evidence in the trial establishes that he played some part in it. 22A number of detainees, including the offender, dismantled a set of soccer goal posts. This is disputed but two witnesses gave evidence of it. One of those involved threw parts at Serco staff, but it is not contended by the Crown that he was the offender. 23These various events that the offender was involved in contributed significantly to the utter mayhem that was going on in the compound at around 11.00pm. Staff were confronted with detainees on the roof throwing tiles at them and at buildings; a roaring bonfire on the soccer field; detainees running around discharging fire extinguishers and throwing them and other objects at staff. They were forced to retreat behind a wall of the office so as not to be struck by tiles. 24Eventually a group of around 20 or 30 detainees turned their attention to the staff and advanced towards them. The most senior officer described them as advancing "quickly and purposefully". One of them was holding a fire extinguisher above his head. When they got near, this man looked like he was going to throw the fire extinguisher at the staff but he hesitated and threw it at a window in the office. Another detainee then came from the bonfire with a burning piece of wood and leaned in through the broken window and set fire to the office. At this point the staff fled the compound. 25Fires were set in a number of other buildings thereafter. The total amount of damage caused in the Fowler Compound and in other areas within the VIDC was extreme; the estimated cost of reconstruction and repair is said to be in the order of $9 million. It should be noted, however, that the involvement of the offender is limited to the incidents that I have referred to. 26The offender was removed from the VIDC on 22 April 2011 and taken to the Metropolitan Remand and Reception Centre at Silverwater. This was simply a transfer of his place of immigration detention but the reason for it was his involvement in the disturbance on 20 April. He was charged on 4 May 2011 and remained in custody, bail refused, at Silverwater. He was granted bail and returned to the VIDC on 7 March 2012. It is common ground that I should take into account the entire period the offender was held in custody at Silverwater.

Seriousness of the offence 27I have observed when sentencing others involved in these events that an affray can occur in infinitely varied circumstances, but that it was clear that this one was particularly nasty. I have also said that a matter relevant to the assessment of the seriousness of the offence was that many people would have been terrified by what occurred and had their safety put at risk. I am fortified in those views by what I have heard in the course of the trial over which I am presently presiding. A number of the Serco officers, who were public officials simply trying to do their job, have been significantly affected. That is not surprising. As the events in the compound descended into mayhem they were cowering behind an office wall trying to avoid the torrent of tiles being hurled from the roof, while detainees on the ground were running rampant with fire extinguishers and setting fire to bedding, tables, chairs and other items in the middle of the soccer field. Ultimately, the detainees succeeded in forcing the staff to evacuate just as the office building was torched. 28Affray is an offence that can be committed by one person but in this case there were a significant number who joined in the protest that had been commenced by Mansoor and Darabi, many of whom were actively involved in the use of violence. The present offender was one who was particularly active. I have no doubt that he made a significant contribution to the crescendo of violence that overtook the Fowler Compound. He was not a leader and his participation was not premeditated; but his actions must have played a role in motivating others to join in or continue with the violence. 29Not all of the detainees in the compound were involved in the threatening or use of violence. But some of those not involved in that way showed support for those that were by yelling and shouting. There was the continual chanting of "freedom". Witnesses also heard detainees calling out "fuck Australia", "fuck immigration" and "fuck Serco". This was all part of the context which cannot be ignored when assessing the culpability of individual offenders. 30I am mindful that the offender is being sentenced for the offence of affray, not of riot. A person convicted of riot bears some vicarious responsibility for the collective damage caused by the conflagration, regardless of his or her level of personal involvement. Participation in an offence of affray, even if committed in the circumstances of a large-scale disturbance, does not necessarily allow a similar inference, partly because s 93C does not require proof of, or a plea to, common purpose. This distinction was discussed by R S Hulme J (Spigelman CJ and Smart AJ agreeing) in R v Huynh [2000] NSWCCA 18 at [27]-[29], distinguishing McCormack, Merlo, Mulholland & Nance v R [1981] VR 104; (1980) 2 A Crim R 405 at 108; 409. 31Nevertheless, the facts in this case establish that the context of the disturbance was inextricable from the offending conduct. It has not been contended otherwise. In addition, s 93C(2) provides that when two or more persons use or threaten unlawful violence it is the conduct of them taken together that must be considered for the purposes of determining whether a person of reasonable firmness present at the scene would have feared for his or her personal safety. 32No sentence other than one of full-time imprisonment is appropriate to reflect the objective seriousness of the offence. I received no submission to the contrary. Punishment, deterrence, denunciation and making the offender accountable for his actions are factors to be taken into account. The length of the sentence to be imposed is, however, something to be determined with the personal circumstances of the offender borne in mind.

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.

Sentencing of others 63I sentenced Mahmood Dadash on 7 December 2012: R v Dadash [2012] NSWSC 1511. I sentenced Mehdi Darabi, Amir Morad Mansoor and Mehdi Agha Razai on 5 April 2013: R v Darabi, Mansoor & Razai [2013] NSWSC 387. 64There is a need to impose a sentence upon the present offender that is appropriately proportional to those that were imposed upon those men. I have taken into account the objective gravity of the offences committed by them as well as the various ameliorating subjective circumstances as reflected in those sentencing judgments. 65The offender's activities in the course of his offence were more extensive than those of Mr Dadash; but Mr Dadash's involvement ranged over a longer period. Both have about an equivalent level of responsibility for tacitly encouraging others to become involved. It seems to me that the sentence for the present offender should be the same as that which I assessed as the starting point, before reduction on account of his plea of guilty, for Mr Dadash.

Other sentence considerations 66Mr Price invited me to take into account that the offence of affray is one that may be dealt with summarily in the Local Court. I have taken that into account as a matter of some weight in sentencing others and have done so in this case as well. 67The period in which the offender was in corrective services custody from 22 April 2011 until 7 March 2012, which amounts to 321 days, is accepted to represent pre-sentence custody for which the offender should receive credit. On that basis, the sentence I impose will be backdated so as to take effect from 1 June 2012. 68I was also invited to consider imposing a fixed term of imprisonment for a period the equivalent of the pre-sentence custody. This was so as to avoid the offender failing the "character test" in s 501 of the Migration Act. It is provided that the Minister may refuse to grant a visa to a person who fails that test. It is provided in s 501(6)(a) that a person does not pass the test if they have a "substantial criminal record" which is defined (s 501(7)(c)) to include having been sentenced to imprisonment for a term of 12 months or more. The submission overlooked the fact that s 501(6)(b)(aa)(i) also provides that a person fails the character test if convicted of an offence that was committed while in immigration detention. So, the offender fails the test no matter what sentence is imposed. 69An alternative submission was that there should be a finding of special circumstances so as to reduce the proportion of the sentence represented by the non-parole period; indeed, to reduce it to the equivalent of the pre-sentence custody so that the offender would be eligible, or entitled, to immediate release on parole. 70I do find that there are special circumstances and they comprise an aggregate of matters disclosed in the presentation of the offender's subjective case, particularly his anxiety and depression; his return to gaol after having been in immigration detention for a significant period; and that custody will be more onerous for him in the ways I have described. I have put aside the possibility that the offender faces the potential of deportation and consider that he, and the community, will be better served by him being supervised over a lengthier parole period, particularly in relation to treatment for his psychological issues.

Sentence 71Convicted. 72Sentenced to imprisonment comprising a non-parole period of 1 year and a balance of the term of the sentence of 1 year. 73The sentence will date from 1 June 2012. I order the release on parole of the offender upon the expiration of the non-parole period on 31 May 2013. The total term of the sentence will expire on 31 May 2014. 74I note that there is evidence of the offender having engaged in self-harming behaviour in the past. I direct the attention of staff of Corrective Services NSW to this and direct that it be noted on the warrant.

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: 18 April 2013