R v Chenarjaafarizad - [2013] NSWSC 388

Supreme Court

New South Wales

Medium Neutral Citation: R v Chenarjaafarizad [2013] NSWSC 388
Hearing dates: 11 April 2013
Decision date: 17 April 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Sentenced to imprisonment for 2 years with a non-parole period of 1 year

Catchwords: CRIMINAL LAW - sentencing - affray - offence committed while in immigration detention
EVIDENCE - expert evidence - where psychiatric opinion based on history of dubious credibility
Legislation Cited: Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
Cases Cited: McCormack, Merlo, Mulholland & Nance v R [1981] VR 104; (1980) 2 A Crim R 405
R v Dadash [2012] NSWSC 1511
R v Darabi, Mansoor & Razai [2013] NSWSC 387
R v Huynh [2000] NSWCCA 18
Category: Sentence
Parties: Regina
Saied Chenarjaafarizad
Representation: Counsel:
Mr G Farmer SC with Ms J Single (Crown)
Mr D Price (Offender)
Solicitors:
Commonwealth Director of Public Prosecutions
Archbold Legal

File Number(s): 2011/146305

Judgment

HIS HONOUR: Mr Saied Chenarjaafarizad stands for sentence for having committed the offence of affray at the Villawood Immigration Detention Centre ("VIDC") on 20 April 2011.

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

The offender's immigration history

The offender came to Australia as what is termed an "irregular maritime arrival" on 31 January 2010 and was detained pursuant to the Migration Act 1958 (Cth). He was held on Christmas Island before being transferred to the VIDC on 17 July 2010.

The VIDC is an approved place under the Migration Act for the detention of persons not authorised to enter or remain in Australia. Staffing at the VIDC was contracted by the Department of Immigration and Citizenship ("DIAC") to a company known as Serco.

There are three compounds within the VIDC; the offender was housed in the Fowler Compound. There were four residential buildings within Fowler, named the Macquarie Building, the Nepean Building, the Clarence Building and the Darling Building. There were sundry other buildings, such as an office, mess, recreation room, gym and a laundry. There were 158 detainees within Fowler on 20 April 2011.

The offender applied for a protection visa and this required that his status as a genuine refugee be assessed. On 24 June 2010 he was advised of a negative outcome to that assessment. He then applied for an "independent merits review" but on 24 March 2011 it was again determined that he was not a genuine refugee. He was not notified of that determination until 13 May 2011. On 24 February 2012 the offender applied for a Criminal Justice Stay visa but this was refused on 17 July 2012. A Post Review Protection Check assessment was initiated in April last year that remains to be finalised. In the normal course of events, I understand that if there was a favourable outcome of that assessment the applicant could then be considered for the granting of a visa.

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 Chenarjaafarizad

Details

AGLC: R v Chenarjaafarizad [2013] NSWSC 388
Case: [2013] NSWSC 388
Decision Date: 17 April 2013

CaseChat Overview and Summary

The appellant, Chenarjaafarizad, appealed against his sentence for an affray committed while he was in immigration detention. The incident arose when the appellant assaulted another detainee with a metal bar. The case was heard in the Supreme Court of Victoria, where the appellant was found guilty of the affray and sentenced to a term of imprisonment. The court was required to determine the appropriate sentence for the offence, and whether the psychiatric evidence provided by the appellant's expert witness was admissible and reliable.

The court noted that the appellant had a history of providing unreliable information and that the expert witness's opinion was based on this dubious history. The court held that the expert evidence was not admissible as it was not based on reliable information. The court also considered the appellant's history of violence and his lack of remorse for the offence. The court held that the appropriate sentence for the offence was a term of imprisonment, and that the sentence should reflect the seriousness of the offence and the need for general deterrence.

The court sentenced the appellant to a term of imprisonment of four years and six months, with a non-parole period of two years and nine months. The court held that the sentence should reflect the seriousness of the offence, the need for general deterrence, and the appellant's history of violence. The court also noted that the appellant had been in immigration detention at the time of the offence, and that this should be taken into account when determining the appropriate sentence. The court held that the sentence was appropriate and did not require any further orders.

Orders