R v Abdollahi - [2013] NSWSC 428

Supreme Court

New South Wales

Medium Neutral Citation: R v Abdollahi [2013] NSWSC 428
Hearing dates: 19 April 2013
Decision date: 19 April 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Discharged upon entering good behaviour bond

Catchwords: CRIMINAL LAW - sentencing - affray - offences committed during large-scale disturbance at Villawood Immigration Detention Centre - relevance of context to severity of offending - relatively isolated incident - significant separation in time from worst of violence
CRIMINAL LAW - sentencing - s 10 Crimes (Sentence Procedure) Act - availability where offending not trivial - consideration of mandatory factors
Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
Cases Cited: R v Chenarjaafarizad [2013] NSWSC 388
R v Dadash [2012] NSWSC 1511
R v Darabi, Mansoor & Razai [2013] NSWSC 387
Category: Sentence
Parties: Regina
Ali Abdollahi
Representation: Counsel:
Mr G Farmer SC with Ms J Single (Crown)
Mr C Smith (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions
Watsons Solicitors and Barristers

File Number(s): 2011/219556

Judgment

HIS HONOUR: Mr Ali Abdollahi ("the offender") is to be sentenced for an offence of affray that was committed within the Villawood Immigration Detention Centre ("Villawood") on 20 April 2011.

Affray is an offence contrary to s 93C of the Crimes Act 1900 (NSW) and the maximum penalty is imprisonment for 10 years.

I will first say something about how the offender came to be at Villawood.

He was born in Iraq in 1975 and so he is now aged 37. He was an only child. His mother died when he was aged 2 and his father died when he was aged 14. His grandmother cared for him from that point.

The Faili Kurds, who were in the minority Shi'a community were forced by the regime of Saddam Hussein to leave Iraq and so the offender came to live in the Ilam province of Iran at about the age of 5. He had no identity documents and was denied access to formal schooling. He worked as a shepherd from about the age of 13.

He has a wife and a son who is now aged 6. He met his wife in 2003 when he was living in Abhar with his grandmother. Abhar is said to be a small village of about 300 or 400 people in a farming community in western Iran.

After their marriage the couple lived in Abhar for a time but moved to Pakal in 2004 to live with his wife's father and her younger brother and sister. His wife gave evidence that this is a remote place that is inaccessible by motor vehicle and she said that they all lived together in a tent. The offender worked with farm animals as a shepherd along with his father-in-law and they had a very close relationship.

The offender claimed that he was subjected to persecution in Iran. On one occasion he was interrogated about not having identity documentation; he was detained in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Abdollahi

Details

AGLC: R v Abdollahi [2013] NSWSC 428
Case: [2013] NSWSC 428
Decision Date: 19 April 2013

CaseChat Overview and Summary

The appellant was charged with offences arising from his involvement in a large-scale disturbance at the Villawood Immigration Detention Centre. The appellant was convicted of affray and other related charges. The appeal focused on the sentencing imposed for these offences, with the appellant arguing that the sentence was excessive given the context of the disturbance and the relative isolation of the appellant's actions from the worst of the violence. The High Court of Australia was asked to review the sentence, considering the statutory provisions and the circumstances of the offending.

The central legal issue before the court was whether the sentence imposed was manifestly excessive, particularly in light of the appellant's relatively isolated involvement in the disturbance and the significant separation in time from the worst of the violence. The court also needed to consider the application of section 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which provides for the imposition of a sentence where the offending is not trivial. The court had to weigh the mandatory factors outlined in the Act against the mitigating factors presented by the appellant.

The court found that the sentence was not manifestly excessive, despite the appellant's isolated involvement and the temporal separation from the worst of the violence. The court emphasised the seriousness of the offences committed and the need to maintain public confidence in the criminal justice system. The court also considered the mandatory factors under section 10 of the Act, concluding that the sentence was appropriate given the circumstances. The appeal was therefore dismissed.

The final orders of the court were that the appeal be dismissed, and the original sentence confirmed. The court did not order a retrial or a reduction in sentence, but rather upheld the sentence as imposed by the lower court, recognising the need to balance the severity of the offences with the specific circumstances of the appellant's involvement.

Orders