R v Dadash

[2012] NSWSC 1511

Supreme Court

New South Wales

Medium Neutral Citation:	R v Dadash [2012] NSWSC 1511
Hearing dates:	30 November 2012
Decision date:	07 December 2012
Jurisdiction:	Common Law - Criminal
Before:	R A Hulme J
Decision:	Sentenced to imprisonment for 1 year 9 months with a non-parole period of 1 year 4 months.
Catchwords:	CRIMINAL LAW - sentence - affray - used or threatened violence towards staff of immigration detention facility and others - plea negotiated after committal and prior to arraignment - deportation not relevant in determining sentence
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1900 (NSW)
Category:	Sentence
Parties:	Regina Mahmood Reza Dadash
Representation:	Counsel: Mr G Farmer SC with Ms J Single (Crown) Mr N Steel (Offender) Solicitors: Commonwealth Director of Public Prosecutions O'Brien Solicitors
File Number(s):	2011/401559

Judgment

1. HIS HONOUR: Mahmood Dadash is to be sentenced for an offence of affray that he committed at the Villawood Immigration Detention Centre ("Villawood") on 20 April 2011. He pleaded guilty to that offence before me last Friday.

1. The offence is contrary to s 93C of the Crimes Act 1900 (NSW) which provides for a maximum penalty of imprisonment for 10 years. Using the terms of that section, the offender's plea means that he accepts that he used or threatened unlawful violence towards another person and that his conduct was such that it would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. The persons present at the scene included employees of Serco, the organisation contracted by the Australian Government to operate the Villawood facility, amongst others.

Why Mr Dadash was at Villawood

1. Mr Dadash was being detained at Villawood as an unauthorised entrant into Australia. His home country is Iran. He has a wife and daughter there. He came into conflict with an Iranian government official there, after becoming frustrated about delays in his daughter being provided with a cochlear implant device to assist with her hearing disability. He vented his frustration by tearing up a picture of Ayatollah Seyyed Ali Hosseini Khamenei, the Supreme Leader of Iran. He later found out that this was an offence under Iranian law, punishable by death. He fled Iran in 2009, leaving his wife and daughter behind, and came, via Dubai and Indonesia, to Australia. He arrived by boat and was taken into immigration detention at Christmas Island on 31 January 2010. He was transferred to Villawood on 17 July 2010.

Events of 20 April 2011 at Villawood

1. The events at Villawood on 20 April 2011 were tumultuous and they commenced early in the day in one of three compounds at the centre. This compound housed about 150 detainees and was managed by about 20 Serco staff. Two detainees, Messrs X and Y, were noticed to be on the roof of a building within one of the compounds at between approximately 7 or 8am. They were threatening to throw roof tiles at staff and yelling at staff to go away. At about 9am, they were seen to be talking to other detainees who were on an adjacent soccer pitch. At about 9.30am they were seen to throw four roof tiles which landed some distance from staff members. They did the same at around noon and on this occasion the tiles dented the walls and a door of the nearby mess hall.

1. Around midday the "activities officer" tried to commence a game of soccer for the detainees. X and Y remonstrated with the officer and threw roof tiles onto the soccer field. Others on the ground were yelling "no football". X called out, "Stop playing the soccer game as we're making a statement by being up here. You're mocking us by continuing the daily routines and not paying us any attention."

1. Staff members were creating a human cordon to prevent other detainees getting onto the roof. Tiles were being thrown in their direction. It was about this time that Mr Dadash approached the activities officer and made a gesture which was perceived to be a demand that the officer should leave. He stood close to the officer and yelled, in English, "Don't play soccer here. Fuck off, fuck off". He also tried to snatch the soccer ball.

1. A decision was made to move the soccer game further away from the building on top of which were X and Y. When the game resumed, Mr Dadash again approached the activities officer. He is said to have gone "right up to [the officer's] face", waving his hands and yelling, "I told you to fuck off, don't play here". Another detainee, accompanied by about 40 others ran shouting "fuck off, fuck off" and swung his hand in a closed fist towards the officer. Other detainees had been on the soccer pitch yelling "no football". Someone grabbed the soccer ball and kicked it out of the compound. The activities officer then left.

1. Around midafternoon, an officer attempted to bring drinks to other officers. X yelled abuse at him and Y threatened to throw a tile at him, saying, "Fuck off ... we'll kill you". The officer with the drinks retreated but Y threw the tile; it crashed on an area of concrete. Y called out, "We're up here for a reason, don't drink in front of us ... If you drink or eat in front of us, we're going to throw tiles at you." There was a further retreat by officers.

1. Bedding and bottled water was thrown up onto the roof by detainees who were on the ground at around 4pm and again at around 6pm.

1. It was shortly after 7pm that other detainees started to join X and Y on the roof. A large group had gathered on the ground yelling at the staff. At around 7.30pm detainees were yelling "we want freedom". It was estimated that around this time there were about 80 to 90 detainees in the area. Some were encouraging and helping people to join those on the roof. Staff offered to move detainees who felt at risk out of the compound.

1. A couple of hours later a detainee smashed the perspex side of some telephone booths with his clenched fist and his head. Mr Dadash pulled him away.

1. Another detainee who was on the roof called out, "Fuck you, fuck immigration. I want to speak with the media. I want to talk about the way we're being treated." Another detainee on the roof called out, "I want to see DIAC. If I don't see DIAC I'll throw myself off the roof. I'll kill myself." (I take "DIAC" to be a reference to the Department of Immigration and Citizenship). This detainee then threatened to hang himself if he wasn't provided with cigarettes.

1. Mr Dadash and another detainee approached a staff member wanting to know why they were not being given cigarettes and why DIAC was taking so long to process their visa applications.

1. By about 11pm, detainees on the roof started gathering roof tiles and putting them in a pile. There were verbal exchanges between those on the roof and the others on the ground, including "Fuck Serco" and "Freedom". Tiles were thrown at staff members, some of them making contact. The scene was quite chaotic by this stage.

1. Some of the detainees, including Mr Dadash, took up fire extinguishers and sprayed them around on the soccer field. Other detainees were cheering. Mr Dadash sprayed the contents of the fire extinguishers in the direction of staff and he and another detainee were heard to say, "Fuck you. Fuck you up the arse. Fuck immigration." As the extinguishers were emptied they were thrown to the ground or in the direction of staff members.

1. Then, Mr Dadash and another detainee were seen pulling a chain which secured wheelie bins to a wall. They did this until the bricks broke. They and others then moved the wheelie bins to the soccer field, emptied them of their contents and put the rubbish in a pile. Somebody then set the pile alight.

1. Mr Dadash was not seen to be involved in any of the subsequent events. Those included buildings being broken into and various fires being set. Tiles continued to be thrown by those on the roof at staff, police and fire brigade officers. Detainees not involved in the events, as well as staff, were evacuated from the affected areas. By the early hours of the next morning a number of buildings were destroyed by fire. The estimated cost of restoring the facility is in the order of $9 million.

1. Mr Dadash was removed from Villawood on 22 April 2011 and taken to the Metropolitan Reception and Remand Centre at Silverwater. He was charged for his involvement in the incident on 4 May 2011 and was refused bail. On 5 April 2012 he was granted bail and returned to Villawood. He has remained in immigration detention since.

1. Mr Dadash gave extensive evidence at the sentence hearing which included him recounting his involvement in the events of 20 April 2011. It became clear in the course of the prosecutor's cross-examination that he was downplaying his role and attempting to justify it, as he had in his account to the author of a psychological report, Dr Peter Ashkar. For example, he claimed that his actions were prompted by concern that those on the roof might commit suicide and he vehemently denied swearing at staff members. The statement of facts, which was tendered without objection, provides an account that is inconsistent with such claims.

Seriousness of the offence

1. The involvement of Mr Dadash in the events includes that he remonstrated with staff members who were endeavouring to restore order; he was involved in emptying fire extinguishers which, whether he intended it or not, inhibited the ability of staff to deal with fires that were set; he threw empty fire extinguishers either at the ground or at staff members; and he was involved in stockpiling rubbish on the soccer field that was then set alight. This activity constitutes the use or threatened use of unlawful violence towards other people and it is certainly activity that would "cause a person of reasonable firmness present at the scene to fear for his or her personal safety". The seriousness of his offence must be assessed in the context of the surrounding events. I infer that by involving himself in the events, Mr Dadash, implicitly at least, encouraged the involvement of others. It is not apparent whether the actions of the detainees were planned and I am prepared to accept that his involvement was not premeditated. Another matter that is relevant to the seriousness of the offence is that many people would have been terrified by what occurred and their safety was put at risk. They include members of staff, targeted because of their occupation, as well as other innocent detainees. Fortunately, no-one was physically injured.

1. An affray can occur in infinitely varied circumstances but it is clear that this one was particularly nasty. I am satisfied that only a sentence of full-time imprisonment is appropriate to meet the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1900 (NSW) of punishment, deterrence, denunciation, and making Mr Dadash accountable for his actions.

Mitigating factors

1. Notwithstanding what I have just said, there are a number of factors which warrant some amelioration of the sentence to be imposed. Mr Dadash has pleaded guilty and that must be taken into account in his favour. The plea was first offered some six months after he was committed for trial, before arraignment (which had been deferred at his request), and after a trial date had been fixed. I heard competing submissions as to the extent to which this should moderate the sentence. Having considered those submissions, I propose to reduce the sentence from what I otherwise would have imposed by 12.5 per cent.

1. Mr Dadash is 28 years of age and he has no previous convictions. There is also evidence of prior good character to the extent that it appears that when in his home country he worked and supported his family.

1. I do not accept that he is genuinely remorseful. He has said that he is sorry, but that is the extent of it; there has been no acknowledgment of the impact that his involvement in the protest had upon staff and other detainees. Saying sorry does not equate to an acceptance of responsibility, particularly when Mr Dadash has sought to minimise and justify his actions.

1. Although there has been no psychiatric diagnosis, Mr Dadash was found by Dr Ashkar to exhibit the signs of post-traumatic stress disorder. This appears to relate to his experience of having seen the bodies of some detainees in Villawood who had committed suicide. It was suggested in the evidence Mr Dadash gave at the sentence hearing, and in submissions, that this condition was causally related to his offending behaviour. Dr Ashkar appears to have been of this opinion.

1. I do not accept that. In relation to Dr Ashkar's view, it would seem that he relied solely upon the version of events provided to him by Mr Dadash and did not have before him the somewhat different version set out in the undisputed statement of facts. He also appears to have been influenced by a perception that Mr Dadash had actually witnessed detainees committing suicide, as opposed to having subsequently seen the bodies of such persons. I do accept that Mr Dadash's involvement in the events of 20 April 2011 was motivated by anger and frustration at having been held so long in immigration detention. His involvement was also influenced by the actions of his fellow detainees. I am not satisfied that he was in any way a leader; he followed the lead of others.

1. Aside from the possibility of experiencing post-traumatic stress, there are signs of significant levels of depression and anxiety. I am not persuaded that there should be any moderation of the extent to which general deterrence is factored into the assessment of sentence. But I do accept that incarceration for Mr Dadash is more onerous than for others on account of his mental state. Undoubtedly being kept in detention so far from his family and loved ones is a substantial cause of this. Apparently his wife's family have pressured her to end her relationship with him due to his imprisonment; she has not done so but the possibility that she might is a source of additional anxiety for him. He has regular telephone and internet contact with her but there was no suggestion that he receives visits from any friends or family as prisoners generally enjoy. I also take into account the evidence given by Mr Dadash about his experience in gaol when he was bail refused. He said, in effect, that he found the experience quite terrifying; he was abused and was scared for his safety and, for part of the time, was held in protection. His opportunities for contact with his wife were severely limited as well.

1. Mr Dadash spent almost a year in corrective services custody before he was returned to immigration detention. I am satisfied, however, that his detention since being returned is referrable to the fact that he was charged with offences arising from the events of 20 April 2011 at Villawood. He had applied to be returned to his home country but the Australian Federal Police advised DIAC that this would be inappropriate whilst the charges were outstanding. As a consequence, I am prepared to accept that the entire period from 22 April 2011 until now should be taken into account as pre-sentence custody and the sentence I impose will be backdated to then.

1. The offender was committed for trial for offences of riot and affray. The Crown has now accepted the plea of guilty to affray in full satisfaction of the indictment. It was submitted that I should take into account the theoretical possibility that an offence of affray can be dealt with summarily in the Local Court, where the most that can be imposed is a sentence of imprisonment for 2 years. That does not mean I am limited to such a sentencing range but is a matter of some weight.

1. It was submitted, albeit faintly, that there should be a finding of special circumstances warranting a reduction in the proportion of the sentence represented by the non-parole period. Those circumstances were said to be that it was the offender's first time in custody, his isolation in an Australian prison, prior good character and his mental condition. I have considered the matter, and as sentencing principles require, have excluded consideration of the fact that Mr Dadash is liable to deportation. I am not persuaded that such a finding should be made.

Sentence

1. Convicted.

1. Sentenced to imprisonment comprising a non-parole period of 1 year 4 months and a balance of the term of the sentence of 5 months. The sentence is to date from 22 April 2011. The offender is to be released upon parole forthwith, the parole period having commenced on 22 August 2012. The total term of the sentence expires on 21 January 2013.

1. That is a total term of 1 year 9 months. If not for the plea of guilty it would have been one of 2 years.

**********

Decision last updated: 07 December 2012