R v Darabi, Mansoor & Razai - [2013] NSWSC 387

Supreme Court

New South Wales

Medium Neutral Citation: R v Darabi, Mansoor & Razai [2013] NSWSC 387
Hearing dates: 1 & 15 March 2013
Decision date: 05 April 2013
Jurisdiction: Common Law - Criminal
Before: R A Hulme J
Decision:
Darabi
Sentenced to imprisonment for 1 year 4 months with a non-parole period of 8 months
Mansoor
Sentenced to imprisonment for 1 year 5 months with a non-parole period of 9 months
Razai
Sentenced to imprisonment for 1 year 1 month with a non-parole period of 7 months

Catchwords: CRIMINAL LAW - sentencing - affray - offences committed during large-scale disturbance at Villawood Immigration Detention Centre - relevance of context to severity of offending - relevance of period of immigration detention to sentence
CRIMINAL LAW - sentencing - special circumstances - extended period of restricted liberty in immigration detention prior to sentence - finding of special circumstances
Legislation Cited: Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
Cases Cited: Darabi v Minister for Immigration & Anor [2011] FMCA 371
McCormack, Merlo, Mulholland & Nance v R [1981] VR 104; (1980) 2 A Crim R 405
R v Dadash [2012] NSWSC 1511
R v Huynh [2000] NSWCCA 18
Razai v Minister for Immigration and Citizenship [2012] FCA 394
SZPZI v Minister for Immigration & Anor [2011] FMCA 530
SZRLQ v Minister for Immigration & Anor [2012] FMCA 1159
Category: Sentence
Parties: Regina
Mehdi Darabi
Amir Morad Mansoor
Mehdi Agha Razai
Representation: Counsel:
Mr G Farmer SC with Ms J Single
Mr S Grant (Darabi)
Mr T Edwards (Mansoor)
Mr A Webb (Razai)
Solicitors:
Commonwealth Director of Public Prosecutions
CBD Criminal Defence Lawyers (Darabi & Razai)
Blair Criminal Lawyers (Mansoor)

File Number(s): 2012/12157 (Darabi) 2012/12036 (Mansoor) 2012/12207 (Razai)

Judgment

HIS HONOUR: The offenders Mehdi Darabi, Amir Morad Mansoor and Mehdi Agha Razai stand 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.

Facts

The Crown tendered a Statement of Facts that incorporated reference to each of the offenders. Counsel for the offenders Mansoor and Razai took objection to certain paragraphs which refer to specific acts alleged to have been committed by their clients. I have considered those objections but have concluded that it is not necessary to deal with them. As discussed in the course of the sentence hearing, I do not believe it is necessary in assessing the criminality of each man to precisely identify each particular act they performed over the hours in which the offences were committed.

The VIDC is an approved place under the Migration Act 1958 (Cth) 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. As at 20 April 2011, the offenders were…

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.

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Details

Case: [2013] NSWSC 387
Decision Date: 05 April 2013

CaseChat Overview and Summary

The case of R v Darabi, Mansoor & Razai arose from a series of offences committed during a large-scale disturbance at the Villawood Immigration Detention Centre. The defendants were found guilty of various charges related to the affray, including assault and riot. The case reached the Supreme Court of New South Wales, which was tasked with determining the appropriate sentences for the defendants.

The primary legal issues before the court were the relevance of the context in which the offences were committed to the severity of the sentencing, and the impact of the defendants' extended periods of restricted liberty in immigration detention on their sentences. The court had to consider whether the defendants' status as detainees influenced the appropriate level of punishment for their crimes.

In its reasoning, the court found that the context of the disturbance at the detention centre was highly relevant to the sentencing. The court noted the defendants' prolonged periods of detention and the stress and frustration this would have caused, which likely contributed to their involvement in the disturbance. The court also recognised that the defendants had been subjected to a period of restricted liberty prior to their sentencing, which constituted a form of punishment. This factor was considered in determining the appropriate level of punishment for their crimes. The court concluded that the defendants' sentences should reflect the special circumstances of their case, including the context of their offending and their prior detention.

The final orders of the court recognised the special circumstances of the case and imposed sentences that took into account the defendants' extended periods of restricted liberty and the context of their offending. The sentences were designed to reflect the severity of the offences while also considering the unique circumstances of the defendants.

Orders