Regina v Mohammad Reza Fayazi

Regina v Mohammad Reza Fayazi - [2017] NSWDC 362 - NSWDC 2017 case summary — Zoe

[13]

Mehdi Ozry

Mr Ozry decided to leave Iran towards the end of 2011 as he continually got into trouble for not being religiously observant and was repeatedly arrested for it. In around mid-2012 he began searching for someone who could help him get to Australia.
Mr Ozry obtained a phone number for a man Ghorban Farji. They arranged to meet at Farji's real estate agency. Farji told Mr Ozry that it would cost 5 to $6,000 US dollars to get to Australia. Mr Ozry paid the agreed price which covered tickets to Jakarta, accommodation and a place on a boat to Australia. Mr Ozry handed over his passport to Farji.
About 15 days after their meeting Mr Ozry received airline tickets from Farji. His returned passport and a phone number for a person named Mr Farmani in Indonesia.
Mr Ozry left Iran on 31 December 2012 and flew to Jakarta. When he arrived he travelled by taxi to a hotel and phoned Farmani who told him to ring a person named Amooyi who could help him. Mr Ozry rang Amooyi who told him to go to Cisarua and that someone named Saman would meet him there.
Mr Ozry travelled to Cisarua and met Saman at a local shopping centre.
Mr Ozry was taken to a nearby villa by Saman. A number of other Iranian people were staying there. Saman told Mr Ozry that they would be going to Australia within a week. Mr Ozry remained at the villa for about a month and saw Saman on most days as he would bring him food and money and also reassure Mr Ozry that he would be leaving soon.
One month passed, Saman told him that the path was clear and he would be going to Christmas Island in Australia. The next day three vehicles arrived at the villa. Saman directed Mr Ozry into one of the vehicles and along with the other Iranians was driven into the jungle area. They were met by locals and taken to small boats where they were transferred to a larger boat.
On 6 August 2014 Mr Ozry participated in an identification procedure. He could not identify any person.
Sajad Motref Bazghale
Mr Bazghale decided to leave Iran in about 2012. He was not a very religious person and this was making his life very difficult. He obtained a phone number for a person named Hamid. He made an appointment to meet Hamid with a friend of his named Mehdi Feizollahi in Tehran.
Hamid told the men that it would cost about $5,000 US dollars each to go to Australia via Indonesia. A few days later Hamid provided them with airline tickets.
The men flew out of Tehran in late December. They arrived in Jakarta on 25 December 2012 and checked into a hotel. Mr Feizollahi rang Hamid and obtained the number for a man named Amooyi. Mr Bazghale stated he later heard Amooyi's real name was Naghi Karimi.
Mr Feizollahi rang Amooyi who told them to go to Cisarua and to meet at a particular shop. Mr Bazghale and Mr Feizollahi travelled as direct by Amooyi and met with a man named Saman who told them both that he does Amooyi's work for him. Saman directed them to get into one of two vans and drove them to a villa where between 15 to 20 other Iranians were staying. Mr Bazghale and Mr Feizollahi stayed at the villa for more than 40 days. In this time Saman visited and would bring people money for living expenses.
After about a month Saman arrived at the villa. He organised all of the Iranians into three groups directing Mr Bazghale and Feizollahi into one of the vehicles he had with him. They were driven to a village in the jungle where they were met by locals, taken to small boats, and transferred to a larger boat waiting offshore.
On 1 August 2014 Mr Bazghale took part in an identification procedure. He identified a photograph of the offender as the person he knew as Saman.

[17]

Vahid Amou Ramzan Zadeh-Fard

Mr Zadeh-Fard left Cypress in about October 2012 having lived there as a refugee for the past 15 years. He travelled from Cypress to Turkey but was turned away by Turkish authorities due to an issue with his documentation. He was deported back to Iran. Once in Iran he contacted Karimi who instructed him to fly to Indonesia. In Jakarta he attempted to call Karimi without success. He then went by taxi to an apartment where a number of other Iranians were staying and was given the contact details of a man named Saman. Mr Zadeh‑Fard met with Saman who told him that he worked for Karimi. Saman called Karimi while Mr Zadeh‑Fard was present.
Mr Zadeh‑Fard spoke with Karimi who told him he would have to pay $7,000 US dollars to go from Indonesia to Australia. Mr Zadeh‑Fard paid Saman 3,000 Euros being all the money he had at the time and said he would sort the rest out later then returned to the apartments.
The next day he spoke with Karimi again and after some negotiating Karimi agreed to accept a further €200 Euros which he paid to Saman. Mr Zadeh‑Fard argued with Saman about the money he paid and the lack of food. On one occasion he met Saman outside the apartments when Karimi was present. Mr Zadeh-Fard recognised his voice as the person he had spoken to on the phone. Saman apologised to him for being rude while Karimi was present.
On another occasion Saman came to the apartments to collect people's phones. After some agreement Mr Zadeh‑Fard was allowed to keep his phone but handed over the SIM card.
About two days later Saman came to the apartments and told them they would be leaving soon. They were taken to taxis to the airport and caught a flight to Makassar and met a local. The local person's name was Uncle Naghi.
Mr Zadeh‑Fard thought this might have been Karimi. Mr Zadeh‑Fard then stayed in a hotel for two days with some other Iranians. They were then taken to a beach where smaller boats took them to a larger boat. The larger boat sailed from Indonesian waters and travelled for about four days before reaching the Ashmore Islands, and being escorted to Christmas Island.
On 5 March 2014 Mr Zadeh‑Fard took part in an identification procedure but could not identify any person.

[18]

Majid Ghafari, his wife and son

Mr Ghafari left Iran for Indonesia with his wife and son on 6 June 2012. They intended to seek asylum in another country. Before leaving they made arrangements by telephone through a people smuggling agent named Younnus. They paid $16,000 US in total for the three of them. They were directed to the Mediterranean Apartments in Jakarta where they stayed with another family for about a week. They then moved to another room and remained there for about three weeks.
They were instructed not to speak to anyone about their travel plans and to avoid going outside.
Sometime later Mr Ghafari and his family were collected with other people and driven to the harbour and placed on one of two ferries. After the ferries left they were turned back by the Indonesian Police and arrested. They stayed in immigration detention for about 21 days before being released and then spending the next three months moving between other apartments.
Mr Ghafari got in contact with and met another people smuggling agent named Saman who he understood worked for a partnership of smugglers named Naghi Karimi and Mehdi Kurd.
Saman moved Mr Ghafari and his family to another apartment within the Mediterranean Apartments building where they had met Karimi. Saman described Karimi to Mr Ghafari as his boss and the main people smuggler. Karimi agreed to pay Mr Ghafari $6,000 US dollars, being a discount for his family after they were ripped off by the other people smuggler. The money was transferred to Karimi's brother in Iran.
About two weeks later Saman called and told Mr Ghafari they were to fly from Jakarta to Makassar and provided them with tickets. Four nights later they were collected in taxis and taken to a jetty, told to hand over their passports and phones. They boarded a large wooden fishing boat with four Indonesian crew and about 57 people, mainly from Iran, Iraq and Burma.
On 4 March 2014 Mr Ghafari took part in an identification procedure. He identified a photograph of the offender as the person he knew as Saman.

[19]

Item 5

At about approximately 6am on 25 March 2013 Royal Australian Navy personnel from HMAS Bundaberg boarded a vessel situated 159 nautical miles north‑west of Christmas Island. They were responding to a request for assistance. The vessel was crewed by three Indonesians and was carrying 102 passengers mainly of Iranian, Afghani and Pakistani nationals who were intent on claiming asylum in Australia.
One of the passengers Benham Daniyali was identified as being facilitated by the offender. In late 2012 Mr Daniyali decided to leave Iran and seek asylum in Australia. In about September 2012 he enquired with a friend of his named Hassani. He made enquiries and was told it would cost him 28 million Tomans for a fake Iranian passport, airline costs, accommodation and passage to Australia. Mr Daniyali paid some of the money and received a fake Iranian passport and later collected plane tickets from a travel agency in Iran and flew to Kuala Lumpur, Malaysia before flying to Jakarta.
In Jakarta he contacted Hassani who gave him the number of a people smuggler named Amir Salmi. Mr Daniyali spoke with Salmi who told him someone named Hamid would collect him from the airport and take him to a hotel. The next day a person named Saman phoned Mr Daniyali and instructing him to go to the Mediterranean Apartments where he shared a room with about 15 other asylum seekers. He was told not to leave the apartment.
Due to some delay in the journey Mr Daniyali and some of the other residents of the apartments became restless demanding that their money be returned and that they be allowed to go back to Iran. Karimi told them that the money could not be returned and sought to calm their concerns by telling them that a boat had been arranged and would sail soon. Before leaving Karimi collected the peoples mobile telephones leaving only one per apartment.
About two weeks later Saman contacted the mobile for Mr Daniyali's room and instructed them to be ready for collection. At about 2am the next morning Mr Daniyali got into a van with nine other Iranians and were driven to a location. When they arrived there was no boat, and after speaking to Saman they were taken back to the apartments.
About two months later Mr Daniyali called Saman asking him to come to the apartments as one of the other men was sick. When Saman arrived five of the men grabbed him, tied him to a chair and demanded he call Karimi to ask him to come to the apartments. Karimi arrived with eight Indonesian men. Mr Daniyali was threatened and beaten before being handcuffed and removed to another location for 14 or 15 days before being taken back to the apartments.
On 20 March 2013 he was told by another man Esi to take a taxi to a jetty called Angel Park. He did so with four other people and was transferred to a waiting boat before being transferred to a larger boat with 108 passengers.
On 6 March 2014 Mr Daniyali participated in an identification procedure and identified a photograph of the offender as the person who he knew as Saman. Mr Daniyali's name was found on a list within the second email from Karimi to Farmani.

[20]

The offender's evidence in the sentence proceedings

The offender tendered a report of Anthony Diment Consultant Psychologist which can be summarised as follows.
The report was prepared after Mr Diment interviewed the offender at Parklea Correctional Centre, largely in English, but with the assistance of an interpreter.
The offender was born in Tehran and is the eldest of two sons. His father, mother, and brother all reside in Australia on safe haven protection visas. His father is 51 years old and works at a car wash in Sydney. His mother is 46 years old and is studying. His brother is 19 and studying a course in construction management at TAFE. The offender described his family as being very close and supportive. The offender described his custodial visits from his family each week as a blessing.
The offender reported doing well at school with English being his best subject. He also took part in sports such as soccer and gymnastics. He described himself as an average student. He was social and would go out on the weekends and had some prior experience with smoking hashish from about the age of 16. He occasionally drank alcohol but not get in trouble for it in Iran.
The offender completed High School to year 12 equivalent and then undertook compulsory national service for nine months and two days. He then opened a gift shop for about two years. The gift shop began to lose business to its competitors. In 2010 due to economic sanctions the offender's father lost his business. They sold alcohol to make money on the black market for a short time. They were raided by the authorities on a number of occasions.
A semi-government militia assaulted his mother and father and also pushed the offender through a window. He sustained injuries to his arm. His father moved away in order to avoid further attention from the authorities and the offender, his mother and brother moved in with his grandmother. The offender's mother returned to the family home at one point to collect some belongings and was confronted by the militia.
The family decided to leave Iran and try to come to Australia. They made contact with people smugglers in Iran. The family left Iran on the 27 March 2012 which was the offender's birthday. The offender had a valid passport but his parents did not. The offender's father sold land in Iran to pay for the necessary arrangements and the people smugglers and this took some time to finalised.
The offender and his family remained in Jakarta for about three months. Their first attempt to reach Australia failed as the boat was full of holes. The people smuggler wanted more money and told them that only three of the family could make the next attempt, and that either the offender or his father would have to stay behind and help him to pay for their passage to Australia.
The offender stayed behind in Jakarta. His family and particularly his mother were very distressed. The offender told the psychologist that he worked for the people smuggler in order to pay his way onto another boat. At first the offender cooked and cleaned for the people smuggler but after a short time he was asked to do more, and he did what he was told to do. The offender told the psychologist that when he was arrested his father sent more money to Indonesia.
When he got the money in early December 2013 he went on a boat and was taken to Christmas Island over three or four days. His boat was escorted to Christmas Island. He was then sent to Darwin and then to the Immigration Detention Centre at Villawood.
The offender has been in custody since that time. The offender said that his only intention was to work off and to be able to pay for another trip to be re-united with his family.
The offender accepted that he did help the people smuggler.
The offender gave a medical history of experiencing a loss of sensation in his hand as a result of the injuries he incurred in his encounter with the militia. He has received extensive physiotherapy for that problem in the past. He also suffers from bladder problems that require him to urinate frequently. He takes medication for this problem and has had some investigations for it in the past. In custody he has been worried about his future and has lost his ambitions. The psychologist administered psychometric testing. The offender scored in the severe range for depression and as being at a moderate risk for emotional and behavioural difficulties including suicidal ideation.
The psychologist concluded that the offender is clinically anxious and depressed and opined that he fits within the diagnostic criteria for major depressive disorder and generalised anxiety disorder. The psychologist recommended that he receive psychological treatment for his condition, including medication and counselling, and that much of his condition will be alleviated by reunion with his family. The psychologist opined that the offender has expressed genuine remorse.

[22]

Statutory Declaration of Ali Reza Fayazi

The offender tendered a statutory declaration from his father Ali Reza Fayazi sworn 5 October 2017. The offender's family and friends were in Court to support him at the sentence hearing. His father gave evidence of the prior attempt to come to Australia. He said that the boat sank in the ocean and that they had to go back to Indonesia. They lost all their belongings including all the money they had. He described the situation as being bad for all of them. They had to wait in Indonesia for the smuggler to arrange another boat. After about a month in August 2012 the smuggler asked for more money to send them to Australia.
The offender's father told the smuggler that he paid him all the money that he had, and that because they had failed on the first occasion he should not have to pay more. The smuggler told him that he could send three people this time and that either the offender's father or the offender had to stay in Indonesia and help with the operation in order to be able to send them on another boat.
The offender's father took issue with the people smuggler but he would not accept the resistance. After they arrived in Australia, the offender's family applied for protection. They were given protection visas on 15 February 2016. He gave evidence that when the offender was left in Indonesia that he had no money or belongings. The offender's father gave evidence that was corroborative of the history provided by the offender to the psychologist. The offender's father said that he regretted his decision every day that he got off the boat and left his precious son behind.
The offender's father gave evidence that the offender has changed since he has been in custody in Australia. He thinks he is more calm and patient than previously. The offender's father outlined that the offender's mother cries every day and she is upset all the time. The offender's father described the position as the worst time of their lives in Australia, particularly seeing his adorable son behind bars. He asked the Court to take into account that the offender was a refugee himself.

[25]

Objective Seriousness

It is necessary to identify the part played by the offender in bringing the illegal non‑citizens into Australia.
The offender identified himself to the people as working for or representing Karimi. He arranged accommodation and transport as well as providing them with money and food. He instructed them to stay close to their accommodation, not to speak about their travel plans and not to be detected by the Indonesian authorities. He moved the people from place to place to avoid their detection by those authorities. He took the people to the boats for transfer to Australia and by reason of his own experience knew that the boats could be un-seaworthy.
The offender collected money from time to time for Karimi, but did not do any of the negotiations. He was polite to the people and assisted them. He was not involved in the stand over tactics that followed him being detained by the people on one occasion. He dealt with a large number of people on behalf of Karimi. He acted as conduit for communication between Karimi and the people and generally affected Karimi's instructions to do things like collecting mobile phones and SIM cards and paying the rent for the accommodation. He provided the people with information about when they would leave for Australia.
There is no evidence that the offender received any money for his services but he must have at least received food and accommodation whilst he was in Indonesia. That is consistent with the evidence that the people were receiving similar benefits from Karimi. Whilst there is an inference available to be drawn that he participated for a financial motive, I am not satisfied beyond reasonable doubt that that was the case. I am satisfied on the balance of probabilities from the other evidence that the offender participated to receive passage to Australia in order to be re-united with his family.
The offender played a people management role that was essential to the carrying out of the scheme. The offender was not the organiser of the criminal enterprises. The offences formed part of a course of conduct consisting of the serious of criminal offences.
I am satisfied on the balance of probabilities that the offender assisted Karimi in return for his own passage to Australia. There is an overwhelming consistency of the evidence in the offender's case. I accept the evidence of his father that the offender was required to stay in Indonesia and to work for Karimi to pay for his passage. This evidence is supported by what the offender told the psychologist and by the independent evidence of Mr Rajabi who corroborates the family's earlier aborted attempt to travel to Australia in the boat that sank shortly after leaving Indonesia.
I am satisfied on the balance of probabilities that the offender and his family left Iran as a result of persecution by the authorities, and I accept that the offender was motivated to commit the offences because he was desperate to be re-united with his family who he was close to. I am satisfied on the balance of probabilities that the offender was manipulated to some extent to assist Karimi on the promise of passage to Australia that was ultimately fulfilled when he paid more money, and that is consistent with the notion that the offender was not renumerated or a trusted employee of the organisation.
The offences were committed when the offender was vulnerable. He was involved in a high risk process with few resources in a foreign country and acted to achieve a reunion with his precious family. In all the circumstances his moral culpability is significantly reduced.
The maximum penalty of the offence is 20 years imprisonment and/or a fine of $420,000. Parliament has prescribed a mandatory minimum penalty for the offence of a head sentence of five years and a non-parole period of three years. The minimum sentence must be imposed taking into account all the relevant sentencing factors for the least serious category of offending Bahar v The Queen [2011] WASCA 249 at [58].
I have taken into account the other offences on the s 16BA schedule. They each carry a maximum penalty of ten years imprisonment. Those offences must necessarily increase the sentence imposed.

[28]

Other matters

The offender is presently 28 years of age. He does not have any prior convictions in Australia. I am satisfied that the hardship that has been caused to the offender's family is exceptional and should be taken into account to mitigate the penalty imposed. The offender initially intended to come to Australia with his family and they embarked on an unsuccessful attempt to do so together. The people smugglers required them to pay more for the second journey and ultimately did not allow the offender to travel with them. I am satisfied that the offender was to some extent exploited by the people smugglers for their own benefit. Consistent with this finding, when he could pay he was given passage. His family have had the concern for the offender's welfare weighing on them from that time. His future is very uncertain whereas his actions in staying behind in Indonesia have permitted them to permanently reside in Australia and to make a new future. I am satisfied that the weight of guilt that they carry must be extraordinary.
The offender has expressed remorse and contrition to the psychologist and to the Court. I am satisfied that this is genuine. The offender has good prospects of rehabilitation. The offender has always been in regular employment and has a strong supportive family.
The offender pleaded guilty. For Commonwealth offences the Court must consider the offender's willingness to facilitate the course of justice, and not the utilitarian value of the plea of guilty: Cameron v The Queen (2202) 209 CLR 339 at [14]. In assessing the willingness of the offender to facilitate the course of justice the strength of the Crown case against the offender is a relevant consideration: Danial v R [2008] NSWCCA 15 at [27]-[28]. That enquiry may reveal whether the plea was a recognition of the inevitable or truly motivated by the willingness to facilitate the course of justice: Lee v R [2012] NSWCCA 123 at [58].
The Crown case was not particularly strong. Many of the people who were assisted could not identify the offender. The offender's plea saved the need for witnesses to be called of what was to be a lengthy trial and that can be taken into account: Cameron at [79]. The offender entered into plea negotiations that resulted in a number of the charges he was facing being withdrawn or consolidated in some way. In that sense his plea was entered at the first reasonable opportunity.
I am satisfied that the offender's plea was an indication of his willingness to accept responsibility for his actions and was motivated by a willingness to facilitate the course of justice. The appropriate discount is 15%.
The offender suffers from two relatively minor physical ailments. He has a significant mental condition arising from the circumstances of his life. The offender requires psychological treatment including medication and counselling. He is not receiving adequate treatment in custody for his mental condition.

At a glance

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Judgment (31 paragraphs)

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Cases Cited (7)