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

1. 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.

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

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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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 police custody, assaulted, suffered a fractured arm and lost some teeth. He became wary of travelling to urban areas and claimed to have felt increasingly fearful and depressed in the years that followed. He planned to leave Iran and in this he was supported and encouraged by his wife and father-in-law.

1. In 2009 the offender left Iran to come to Australia, leaving his wife and son behind. He arrived as an "irregular maritime arrival" on 26 November 2009 and was detained pursuant to the Migration Act 1958 (Cth). He spent some time on Christmas Island and was assessed as to his refugee status. It was determined in March 2010 that he was not a genuine refugee. He sought an Independent Merits Review but failed in that process in July 2010. He was transferred to Villawood in August 2010.

1. A second Independent Merits Review was conducted in February 2011 and he was awaiting its outcome at the time of the offence.

1. There are three compounds within Villawood. The offender was housed in the Macquarie Building in the Fowler Compound. Staffing at Villawood had been contracted out by the Department of Immigration and Citizenship ("DIAC") to a company called Serco. There were 158 detainees within Fowler on 20 April 2011.

1. In September 2010, a Fijian man detained at VIDC committed suicide in an adjoining compound by jumping from a balcony. There are notes within the offender's medical records that indicate that he was saddened, stressed and depressed as a result of this incident. Apparently he was a witness to the event. A psychological report resulting from an assessment of the offender in October 2010 indicates that he was particularly distressed and, at the time of that assessment, was "preoccupied by flashbacks of the scene of the man diving to the ground, the blood which surrounded him on the ground and also the way his body trembled until he died". The psychologist wrote, "These images tormented Mr Abdollahi and, shaking his head, he repeatedly said, 'he must have really suffered, he must have really been scared to return home to do this'".

1. The psychologist, Dr Shakeh Momartin, described at some length the anguish and desperation the offender reported feeling about his prolonged detention and the uncertainty and fear he had about the prospect of deportation. She wrote:

Mr Abdollahi's current environment is not facilitating his feelings of safety and security, and as a result, his anxiety and depressive features have exacerbated. Almost ten months of being detained without an outcome, has placed a strain on his psychological and mental state. Further delay in receiving a response to his appeal for protection, with the accompanying uncertainty related to its outcome, will gradually lead to exhaustion and slowly deplete his coping resources placing him at high risk of serious mental and physical deterioration.

1. Subsequent to that psychological assessment, the offender also had the experience of another detainee hanging himself in the shower block.

1. There are notes in the medical file dated 19 April 2011 that record that the offender was having issues with "his deteriorating mental health". There were concerns expressed about him appearing "emotional, a little erratic and was not making much sense"; also, that he was "feeling depressed and having trouble controlling his emotions". It is said that he had seen people suicide and otherwise hurt themselves and he kept thinking about these incidents. He wanted to see a psychologist as soon as possible.

1. Another note in the medical records made mid-morning on 20 April 2011 is that the offender was "extremely upset and distressed by [the] circumstances in Fowler". That is likely to be a reference to a protest that had commenced when two detainees, Mehdi Darabi and Amir Morad Mansoor, were seen on the roof of the Macquarie Building early in the morning. Thereafter they were seen to engage in various activities which included abusing Serco staff and throwing roof tiles.

1. During the course of the morning the offender spoke with one of the Serco staff. He said to her, "You can't help us. I will be on the roof by the end of the day". In cross-examination she agreed that he also spoke of seeing "too many bodies on the floor". Another officer who was present recalled that he said, "You need to get DIAC to come and see me", "Can you get DIAC? I'm going crazy. I have been here 20 months. You need to help me". He was pointing to his head as he said this. He also said something like, "I'll climb on the roof".

1. The offender subsequently consulted a psychologist around the middle of the day. This would have entailed him leaving the Fowler Compound and going to the medical centre elsewhere within Villawood. The medical records include a note, "No risk issues identified at this stage".

1. Back in the Fowler Compound, the activities officer tried to commence a game of soccer in the early afternoon. However, according to his evidence, Darabi and Mansoor "seemed to get upset" and told him not to play soccer because they were "making a point by being on the roof". They threw roof tiles in his direction. A detainee, Mahmood Dadash, approached and yelled out that the officer should "fuck off" and "get out of here".

1. The officer went to the far end of the soccer field where he again attempted to start the game. Mr Dadash approached once more; he was aggressive and, the officer said, "in my face". He said, "I told you not to play here" and to "fuck off". He tried to grab the soccer ball.

1. At this stage the offender came on to the soccer field. He was yelling and swearing, saying something like "fuck off". When he got closer to the activities officer, maybe two metres away, he tried to throw a punch to his head but missed. The officer described this as "very threatening" and tried to shield himself. He said there were maybe 20 or 30 other detainees who had accompanied the offender to the field. Other witnesses spoke of a smaller number. The difference is immaterial. Some of them tried to hold the offender back or get in-between him and the officer. But the offender persisted in throwing punches, all of which missed. The officer said that he must have tried to swing punches about three times. Another detainee grabbed the soccer ball and kicked it out of the compound. The detainees then dispersed.

1. The protest in the Fowler Compound continued throughout the rest of the day and into the night.

1. At about 5.30pm the offender had a conversation by telephone with his wife. She informed him that her father had passed away a few days earlier. She said that the offender became very upset. That is unsurprising, particularly given the close relationship he had enjoyed with his father-in-law.

1. More detainees joined Mansoor and Darabi on the roof of the Macquarie Building in the early evening. They included the offender. He claims to have been coerced by other detainees but, given his statements earlier in the day, I doubt it. At one point he was seen to have a bed sheet tied around his neck and some witnesses suggested that he appeared as if he was intending to commit suicide. One member of staff, however, said that she thought it appeared theatrical. That opinion cannot be lightly dismissed because a number of witnesses spoke of the offender having one end of the sheet around his neck while holding the other end up in the air. One witness said that he heard the offender screaming out that he "wanted to see DIAC, but if he did not see DIAC he would throw himself and kill himself". He was also asking to be provided with cigarettes.

1. That the offender was seriously intending to commit suicide is doubtful. It seems more likely that he was threatening to do so without any intention of carrying out the threat. This was probably out of desperation, partly related to the issues concerning his detention and partly because of the distressing news he had heard from his wife earlier that evening.

1. The situation in the compound deteriorated dramatically at about 11.00pm. The events during the mid to late evening comprised the Crown's case on riot for various accused in the trial but the offender was acquitted in respect of his alleged involvement.

1. The only event that is relevant to the sentencing of the offender is his confrontation with the activities officer. It cannot be ignored, however, that it was in the context of a developing protest within the compound that involved abusive and threatening behaviour by other detainees towards Serco staff. Section 93C(2) of the Crimes Act provides that if two or more people use or threaten unlawful violence, it is the conduct of them taken together that must be considered. As a result, it is appropriate that the behaviour of Mr Darabi, Mr Mansoor and Mr Dadash in threatening violence towards the activities officer be taken into account in assessing the degree to which a person present at the time would have been put in fear.

1. In the infinite circumstances in which an offence of affray can be committed, the actual physical activity involved in this example is of a lower order of seriousness. However, taking into account the context in which it occurred, particularly that it was in the course of a protest in which public officials simply carrying out their employment were physically and verbally threatened, it is more serious than that, even accepting that it was likely a spontaneous reaction to events on the offender's part.

1. The rooftop protest on the Macquarie Building continued for quite some days. The offender came down the following evening. The medical records include that he said that the news of his father-in-law's passing away was the "main precipitating factor for him climbing on the roof and threatening to kill himself". It is also recorded that he had no further thoughts of self-harming.

1. In a subsequent conversation with his wife he said, "I was really affected by the news that you said about your father and I was very upset for you, and also I was disappointed by the Immigration and I didn't know what to do so I just wanted to kill myself".

1. Given that he had been in detention for almost 18 months, it is unsurprising that the offender might have felt distressed about the length of time the assessment of his refugee status was taking, particularly as his future was uncertain and he had been separated from his wife and son for so long. Ironically, it was on 21 April 2011 that he was informed that a determination had been made that he was a genuine refugee. The following month he received a favourable security clearance by the Australian Security Intelligence Organisation.

1. The offender's wife bought a false passport and left Iran to come to Australia on 30 April 2011. She and their son were initially held in immigration detention. They were released into community detention in November 2011, and in February 2012 were granted protection visas. They now live in a suburb of Sydney and are able to visit the offender at Villawood. Moreover, he has been permitted to leave the detention centre in order to visit them at their home.

1. Dr Richard Furst, forensic psychiatrist, assessed the offender in December 2012. His report sets out a history that is generally to the effect that the offender has been feeling increasingly anxious and depressed throughout his time in immigration detention. Dr Furst diagnosed the offender as suffering from Major Depressive Disorder and Generalised Anxiety Disorder. A useful summary appears in the following extract from Dr Furst's report:

The history obtained from Mr Abdollahi and a review of his extensive psychological reports from STARTTS [NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors] suggest that [the offender] presents with a history of persistent and severe depression, insomnia, hopelessness, marked anxiety about his family's welfare and his own immigration and legal status, and some re-experiencing phenomena relating to the deaths of other detainees at the Villawood Immigration Detention Centre.

...

In my opinion, his judgment may well have been affected by his severe depression and the high levels of anxiety he was experiencing in April 2011. He was probably vulnerable to the influence of his peers and alleged co-offenders.

...

[D]epression, anxiety and desperation often make it more difficult for people to think clearly about the consequences of their actions.

1. Under the heading "Prognosis" he wrote:

Mr Abdollahi has a severe depressive illness and comorbid anxiety disorder. He has very limited community supports in Australia and is fearful of persecution [if] he returns to Iran. He remains very worried about his family. His condition will require ongoing input from a psychiatrist and a psychologist.

1. Dr Furst proposed a treatment plan that entails psychiatric care; engagement with psychological, vocational, educational or social activities; and medication.

1. A problem with the opinions expressed by Dr Furst is that it seems he was unaware that the offender's wife came to Australia two years ago and that she and their son are now permanent residents. Under the heading "Recent Progress" he wrote:

Mr Abdollahi said that his mental health has gone from bad to worse over the last 20 months and that he feels "like a broken man". He has not seen his family for the last three years, feels highly stressed, and feels as though "time is against him". (Emphasis added)

1. In a report by a psychologist concerning the offender's wife dated 27 May 2012, it is said that she and her son visit the offender every week. I note that the psychologist identified signs of her experiencing signs of severe anxiety and depression as well.

1. Despite the error in the history upon which Dr Furst formulated his opinions and diagnoses, I am inclined to accept them. It is the fact of detention, and its length and circumstances, together with uncertainty as to the future that seem to be the more significant matters contributing to the offender's mental condition. I note also that no submission was made that I should not act upon Dr Furst's report which was tendered without objection and without any request that he attend for cross-examination.

1. The most recent psychological assessment of the offender is dated 6 March 2013 and relates to an assessment made of him the previous month. It included that his "emotional and psychological state appears to be very fragile". The psychologist was concerned that his "coping resources seem to be gradually deteriorating" and "he is at an increased risk of self harm, and he might attempt to commit suicide if his coping mechanisms are exhausted". He believed that the offender's mental health "should be closely monitored due to the helplessness and despair" that he was then feeling.

Pre-sentence custody

1. The offender was removed to the Metropolitan Reception and Remand Centre at Silverwater on 22 April 2011 because of his involvement in the events of 20 April 2011. He had not been charged; this was simply a transfer of his place of immigration detention. I note that when he was assessed by a mental health nurse on 24 April 2011 he was found to be exhibiting signs of depression and despair and was considered to be at risk of suicide.

1. He was then transferred to a detention centre in Melbourne on 12 May 2011. He was arrested and charged on 6 July 2011 and remained in custody, bail refused, until 17 January 2012 when he was released on bail and returned to Villawood.

1. The offender has been considered as a candidate for community detention under the Migration Act but in December 2012 the Minister determined that this should be declined. An earlier consideration of community detention failed because he was assessed as not meeting "the guidelines".

1. Mr Smith submitted that I should take into account all of the time since 22 April 2011 as pre-sentence custody, whether the offender was in gaol or in immigration detention. I have considered that submission but do not accept it. Whether the offender might have been released to community detention at some stage is possible but the evidence is insufficient to found a definitive conclusion. I do, however, intend to take into account that the fact that criminal proceedings were pending has delayed the resolution of the offender's immigration status.

Sentencing of others

1. I 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. Saied Chenarjaafarizad was sentenced on 17 April 2013: R v Chenarjaafarizad [2013] NSWSC 388. Each of those offenders had pleaded guilty to affray.

1. 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.

Assessment of sentence

1. Mr Smith has submitted that I should deal with the matter under either s 10(1)(a) or (b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) and has reminded me that in doing so I need to have regard to each of the matters in s 10(3). The Crown Prosecutor, on the other hand, with reference to s 5(1), has submitted that no sentence other than imprisonment is appropriate.

1. The offence committed by the present offender is unique in the sense that it was a discrete event that occurred well after the protest had started but well before the serious mayhem erupted within the Fowler Compound. I accept that the offender could not have been aware at 2.00pm on the day in question that the protest would disintegrate in the way it did after nightfall. Those events are irrelevant to the assessment of sentence in his case.

1. The offence committed by the offender is substantially different in form and context to those that were committed by the offenders I have already sentenced and those who were found guilty at trial and remain to be sentenced. It was very brief in duration. To a significant extent it was a product of the offender's mental state that I have endeavoured to describe in detail earlier in these sentencing remarks. His moral culpability must be regarded as considerably less than it otherwise might have been. One of the various significant differences between his offence and those of others is that his actions cannot be considered to have had any influence upon others who engaged in using or threatening unlawful violence. After the soccer game incident, nothing much happened in the compound for quite some hours. It is a concern that the offence involved threatening violence to a Serco employee who was simply carrying out his duties. Notwithstanding that, in the end I am of the view that the offence, while not trivial, is at the lower end of the spectrum of seriousness.

1. I have had regard to the fact that the offender has spent some seven months in gaol, most of which was as a result of being charged. I have had regard to the fact that, notwithstanding the assessment being made that the offender is a genuine refugee, his claim for asylum has likely been delayed on account of there being pending criminal proceedings against him. In part that has been because he pleaded not guilty but it has also been because he was also charged with riot, of which the jury found him not guilty. He has now been in detention, in one form or another, for almost three and a half years in circumstances in which he has experienced a significant deterioration in his mental health; a situation that appears to have continued until the present. The fact that a charge of this nature, of this level of objective seriousness, would often be dealt with summarily and more expeditiously in the Local Court is a relevant factor as well.

1. The Crown Prosecutor submitted that there was an absence of remorse. I accept that submission. This simply means that a potentially mitigating factor is absent.

1. Other matters relevant to the assessment of sentence include that he is a person of prior good character with no previous convictions. With resolution of his immigration status being no longer held up by the existence of criminal proceedings, it would seem that his rehabilitation prospects are good and that he would be unlikely to re-offend.

Sentence

1. In respect of the charge of affray for which the offender was found guilty by the jury I discharge him on condition that he enter into a good behaviour bond pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act (NSW) for a period of 12 months. It is a condition of the bond that he is to notify the Registrar of the Court of any change in his residential address within 7 days of such change.

1. I confirm that in making this order I have had regard to each of the matters in s 10(3) and also that I have determined pursuant to s 10(2) that it is expedient to do so.

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Decision last updated: 26 April 2013