R v Darabi, Mansoor & Razai
[2013] NSWSC 387
•05 April 2013
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 circumstancesLegislation 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 1159Category: Sentence Parties: Regina
Mehdi Darabi
Amir Morad Mansoor
Mehdi Agha RazaiRepresentation: 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 detained at the VIDC pursuant to the Migration Act, having arrived in Australia early in 2010.
There are three compounds within the VIDC and when the offenders were sent there on 17 July 2010 they were housed within 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.
Applications by each offender for a visa to enter Australia had been refused but as at 20 April 2011 their immigration status had not been finalised.
On 20 April 2011, the offenders Darabi and Mansoor were seen to be on the roof of the Macquarie Building from about 7.15am. Thereafter they were seen to engage in various activities and the statement of facts refers to the following:
- Threatening to throw roof tiles at staff. One of them threatening a Serco officer by saying, "Get that fucking camera away from me or this tile is going over your head" . Mansoor was seen holding a tile.
At about 2.00pm, the activities officer tried to commence a game of soccer. Darabi and Mansoor yelled, "don't shoot" and "no football" while throwing tiles on to the soccer field. Others on the ground were also yelling "no football". Darabi said, "Stop playing the soccer game as we're making a point by being on the roof".
Staff had formed a cordon around the Macquarie Building in order to prevent other detainees getting onto the roof. This meant that they were between those on the roof and the detainees playing soccer and were therefore in the line of fire of the roof tiles being thrown.
A detainee on the ground, Mahmood Dadash, approached the activities officer and told him not to play soccer and to "fuck off, fuck off". When the activities officer moved the game further away from the Macquarie Building, Dadash again approached and said, "I told you to fuck off, don't play here". Another detainee, Ali Abdollahi, ran over to the officer, accompanied by about 40 other detainees, swinging his hand with a closed fist and saying "fuck off, fuck off". One of the detainees grabbed the soccer ball and kicked it over the fence, out of the compound.
Shortly before 3.00pm, a staff member attempted to take refreshments to staff in the vicinity of the Macquarie Building. Darabi abused him and Mansoor held a tile as if he was going to throw it and said, "fuck off ... we'll kill you" and "no, no, not through that gate". The staff member retreated. Mansoor threw the tile near some telephone booths and it smashed on an area of concrete. The Crown accepts that the staff member was unaware of the throwing of this tile (1.3.13 at T5.23).
At about the same time, Mansoor called out to staff, "we're up here for a reason, don't drink in front of us, we are up here for a reason. How dare you eat or drink in front of us. If you drink or eat in front of us, we're going to throw tiles at you". Staff members near the Macquarie Building were ordered to move back.
Detainees on the ground threw bedding and water bottles up to the roof. Staff members were further instructed to move back. This activity continued and at about 6.00pm Mansoor said to staff, "Don't stop them otherwise you'll get a tile thrown at your head".
More detainees attempted to join Darabi and Mansoor on the roof after 7.00pm. There was a large group on the ground, estimated to be between 40 and 60, aggressively yelling at Serco staff and management. There was a rush towards the Macquarie Building and some made their way to the roof, including Mohammed Amiri and the offender Razai. At around 7.30pm, detainees were yelling, "we want freedom". This shouting continued. Some of those on the roof were seen to be making ropes out of bed sheets to assist others to climb onto the roof.
At about 8.00pm, the men on the roof, including the three present offenders (although Mansoor denies involvement in this) were seen throwing tiles at staff. There was encouragement to those on the ground to continue the disturbance and to come up to the roof. Tiles were thrown by Amiri at staff members who were trying to prevent detainees getting to the roof. One tile landed no more than a metre from one staff member who, it is said, had concerns for the safety of her staff and other clients.
One officer estimated that at about 8.20pm there were 80-90 detainees around the Macquarie Building. Thereafter the situation deteriorated with more abuse, tile throwing and other threatening behaviour towards staff. I will only refer to that which concerns the present three offenders. Television camera footage shows Mansoor and Razai throwing tiles and Darabi carrying a tile on the roof around 11.00pm. Mansoor denies this; the suggestion being that he was in fact imploring detainees to stop throwing tiles. There is some evidence that he said to others at one point, "stop throwing stones", but the evidence is insufficient to make any definitive finding about what he was doing. It is regrettable that he did not give evidence himself.
By about 11.15pm, the situation in the Fowler compound was one of absolute mayhem. The danger to the physical safety of staff was so extreme that a decision was taken to evacuate. Detainees were charging at them as they fled. By this stage there was a volley of roof tiles being thrown from the roof of the Macquarie Building, a fire on the soccer field had been lit using the contents of garbage bins and a picnic table, fire extinguishers were being emptied of their contents and thrown at staff, and soccer goals were dismantled and parts thrown at staff. Shortly after staff evacuated, the office building was ablaze and fires were set in other buildings as well.
There is no reference in the statement of facts to the identity of those who were responsible for the subsequent demolition by fire and otherwise of various buildings within the Fowler compound and elsewhere within the VIDC and so it is unnecessary to refer to the detail. However, two matters should be mentioned; the first is that it is not alleged that any of the present offenders were responsible; the second is that the damage to the VIDC was extreme, with the estimated total cost of the damage being in the order of $9 million.
Each of the offenders were arrested and charged on 12 January 2012. They were held in Corrective Services custody, having been denied bail, until 1 February 2012 (Razai), 9 March 2012 (Mansoor) and 5 April 2012 (Darabi).
Matters personal to the offender Razai
The material I have as to matters personal to the offender Razai are a Pre-Sentence Report, a report of Dr Richard Furst, forensic psychiatrist, a psychological assessment report by Ms Larisa Zilenkov, psychologist, an email sent by Mr Razai to Dr Furst on 7 February 2013, a letter addressed to me by Mr Razai dated 1 March 2013, and a testimonial by a Ms Renee Chan dated 1 March 2013. There are also sundry other documents that do not warrant mention at this point. The offender gave oral evidence in the sentence proceedings.
Mr Razai is a 24 year old man who was born in Afghanistan. He and his family fled to Pakistan when he was about 7 years old. He belonged to the Hazari people who were subjected to persecution by the Taliban. Because he was a refugee in Pakistan he was not entitled to state education and was home schooled. His father died when he was about 20 or 21 years old. He has two older sisters and two brothers. His older brother died in 2009 and his younger brother died in 2010. He had worked as a computer operator for about 3 years in Pakistan for a building company.
Mr Razai says that he was present in a mosque in Quetta City, Pakistan, in July 2003 when four men entered and discharged automatic firearms and hand grenades. He lay on the floor, fearing that he would be killed. In March 2004 he was at a religious mourning ceremony when some men ambushed the gathering and shot into the crowd, used hand grenades and set off a bomb. He says he witnessed the killing of some of his friends.
He says that he experienced ongoing symptoms of anxiety, nightmares, flashbacks and depression in relation to these events. Dr Furst says "it would appear that he has become more depressed since arriving in Australia, to the point that 'nothing matters to him anymore'".
Mr Razai came to Australia by boat from Indonesia to Christmas Island on 4 February 2010. It was a journey over about 15 days in terrible weather and he feared that he would drown. He spent several months on Christmas Island in crowded conditions. He was distressed by other detainees hurting themselves and attempted hangings. His younger brother died during this time and he was badly affected. He felt suicidal and self-harmed by cutting himself. He had also self-harmed a number of times back in Pakistan.
He told Dr Furst that he was transferred to the VIDC in September 2010 (the Crown says it was July 2010 but nothing turns on that). He described the conditions there as "poor" and he "felt like he was in gaol". His application for a Protection Visa had been first rejected in August 2010. He suffered a further rejection in March 2011 and claimed that he thought "he may die in Villawood".
Mr Razai said that he was distressed by an Iraqi detainee, who had been a very good friend, hanging himself. He had opened a shower door and found him deceased. This made it hard for him to sleep and eat and he became more depressed. These feelings worsened when a Fijian detainee who was also a friend jumped from the roof of the detention centre and died. I have no doubt that these two suicides occurred because there has been evidence about them in the trial over which I am presently presiding.
An appeal in relation to his application for a visa was refused in August 2011 and another application was rejected in February 2012. He is now appealing to the High Court of Australia.
Mr Razai has been treated with a number of medications and is presently taking a combination of antidepressant and antipsychotic drugs. He told Dr Furst, "I don't feel anything anymore. I feel dizzy and numb because of the medications".
In his account of his involvement in the offence, Mr Razai told Dr Furst that he was hoping to get in touch with the media or United Nations "to tell them how tough it was for us. I had no intention to damage the place or set fire to the place". He acknowledged frustration in relation to one of his applications for a visa having been denied the previous month.
He acknowledged that he threw a few roof tiles and said "I couldn't control myself. They weren't aimed towards anyone. They were aimed at the ground. I was sitting quietly until the end. There was only about 20 seconds of tile throwing. The rest of the time I was peaceful." He did not know why he threw tiles. He told the author of the Pre-Sentence Report that "in fear and confusion I threw some tiles and for that I am very sorry".
Dr Furst noted that there was no history of alcohol or drug misuse or any significant medical history.
Mr Razai told Dr Furst that he was fearful of being sent back to Pakistan. He thought he would be "identified" and said, "they will shoot me".
Dr Furst made the diagnoses of Post-Traumatic Stress Disorder and Major Depressive Disorder. He set out the features of such disorders in some detail in his report but I do not believe it is necessary to recount them now.
On the questions of remorse and rehabilitation, Dr Furst thought he was "remorseful about his actions and is motivated to accept further psychiatric and psychological treatment" and said "his actions in April 2011 appear to have been out of character. He presents as a young man with good prospects of future rehabilitation." The Pre-Sentence Report includes that "the offender expressed regret for his participation in the offence".
There is with the report of Dr Furst and in some of the sundry other material tendered on Mr Razai's behalf references to something that has been called "Prolonged Asylum Seekers Syndrome". I find it unnecessary to determine whether the existence of such a syndrome should be accepted. Despite some scepticism of the Crown, I am prepared to accept the diagnoses made by Dr Furst that I have just referred to. The precise cause and contributing features relating to the offender suffering from such disorders is not of primary significance. It is the fact that he suffers from those disorders itself that is significant. Determining whether those disorders are attributable to his experiences prior to coming to this country, after coming to this country, or a combination of the two, would be an unproductive and irrelevant exercise.
Dr Furst includes in a latter passage in his report:
In my opinion, his participation in the so called Villawood Riots was probably driven by his high levels of emotional distress as a manifestation of his PTSD and depression, the frustration he was experiencing [in] the application process for a protection visa, and his sense of hopelessness and demoralisation at the time. He was also motivated by an apparent wish to air his grievances to the media and United Nations.
The recommendations of Dr Furst as to future treatment of Mr Razai, whether in custody or in the community, the latter including being in immigration detention, include various psychiatric and psychological interventions as well as engagement in educational, vocational and social activities. He also offered the opinion that further detention of Mr Razai in a custodial environment would likely weigh more heavily upon Mr Razai than for the average prison inmate.
Ms Zilenkov's report was included in the documentation reviewed by Dr Furst and it adds nothing of significance to what appears in his report. Similarly, the Pre-Sentence Report adds nothing of significance.
The offender's letter includes an expression of remorse but it includes a claim that "if I had known how things could escalate that day I would never have climbed up. I had imagined a peaceful action". His oral evidence involved an element of downplaying his role, a matter that his counsel, Mr Webb, accepted it was open to me to find. I do, however, accept that he is likely genuine in the apology he expressed in the letter for the distress the disturbance caused and the damage to property that occurred.
Mr Razai also set out in his letter a variety of ways in which he has provided help to others within the VIDC. This supports a finding as to his character and his rehabilitation prospects. Reference is also made to aspects of his experience in Pakistan; matters I have mentioned above in the context of my review of Dr Furst's report.
The letter from Ms Chan also refers to the ways in which Mr Razai has been a co-operative and helpful detainee at the VIDC.
Custodial and immigration history of the offender Razai
According to information derived from the records of DIAC, Mr Razai arrived on Christmas Island as an "irregular maritime arrival" on 11 February 2010. He was found not to be a refugee by a Refugee Status Assessment on 18 August 2011. On 24 February 2011, he was found not to be owed protection by an Independent Merits Review. On 30 March 2011, he lodged an application for judicial review in the Federal Magistrates Court.
That was his immigration status at the time of the offence.
The next event to occur was on 27 October 2011 when the Federal Magistrates Court gave judgment dismissing his application. He lodged a notice of appeal to the Federal Court of Australia three weeks later.
On 12 January 2012, Mr Razai was arrested and charged with riot and affray and was refused bail. Bail was granted on 1 February 2012 and he was returned from Corrective Services custody to the VIDC.
On 20 April 2012, the Federal Court dismissed the appeal from the Federal Magistrates Court: Razai v Minister for Immigration and Citizenship [2012] FCA 394.
On 4 January 2012, Mr Razai was notified of a negative International Treaties Obligations Assessment. I understand this to mean that whilst he had so far been unsuccessful in establishing that he was refugee entitled to protection in this country and thus liable to deportation, another assessment is carried out to see whether for some other reason he should not be deported (e.g. due to a risk of torture, cruel, inhuman or degrading treatment, punishment or violation of the right to life, or for other exceptional circumstances).
On 30 July 2012, Mr Razai filed an application for special leave to appeal to the High Court of Australia. I am told that a hearing date has yet to be allocated. Mr Razai has not made any formal request to be removed from Australia.
Consideration of Community Detention
On 12 August 2011, Mr Razai's case was referred for consideration of community detention but on 19 January 2012 his case was assessed as not meeting the guidelines for referral to the Minister for consideration. On 8 February 2012, he was notified that, in any event, the Minister had determined not to approve community detention for any detainees who were facing criminal charges. Notwithstanding that, on 20 March 2012 Mr Razai's case was again referred for consideration of community detention but, seemingly inevitably, on 20 April 2012 he was assessed as not meeting the guidelines for referral to the Minister because he was still facing criminal charges.
Findings in relation to the offender Razai
I am satisfied that no sentence other than one of full-time imprisonment is appropriate to reflect the objective gravity of the offence. I will say something more about that later.
I am satisfied that Mr Razai's involvement in the offence was attributable partly to his anger and frustration concerning the circumstances of his detention, including how long he had been held, and partly to his Post Traumatic Stress and Major Depressive Disorders that have been diagnosed by Dr Furst. A number of matters flow from that finding. Insofar as the psychiatric conditions contributed to the offending behaviour there is a reduction in the level of his moral culpability as well as a reduction in the need for a sentence to serve to denounce his conduct. I intend to place slightly less emphasis on general deterrence in the assessment of sentence. I also accept that a custodial sentence would weigh more heavily upon Mr Razai than for an inmate not suffering from such disorders.
Mr Razai is a man of otherwise good character; he has good prospects of rehabilitation and is unlikely to re-offend. Whilst he was not entirely convincing, I am prepared to accept on balance that he is remorseful.
There will be a reduction of sentence in the order of about 12.5 per cent to reflect the utilitarian benefit flowing from the plea of guilty that was entered about a month and a half before the trial date.
I am also satisfied that there are special circumstances warranting the setting of a non-parole period that is less than the usual three quarters of the total term. These circumstances derive from the combination of a number of aspects of Mr Razai's subjective case but most particularly because he is a person who has spent a considerable period in immigration detention now being sentenced to a term of imprisonment and because of the need for him to receive treatment for his mental health issues, something that will be more amenable to a favourable outcome with treatment in the community rather than the custodial environment.
Matters personal to the offender Darabi
The material I have as to matters personal to the offender Darabi are a Pre-Sentence Report, a report of Dr Richard Furst, a psychological assessment report by Ms Zilenkov, psychologist, and some documents in relation to "Prolonged Asylum Seeker Syndrome".
Mr Darabi gave evidence which included that what he had told the authors of reports was truthful. He was not cross-examined about that.
Mr Darabi is a 25 year old Kurdish man who grew up in Illam, a province in the western region of Iran near the Iran-Iraq border, his family having fled from Iraq. His father died when he was a toddler and he grew up with his mother and sister. He was unable to attend school and was educated at home. He worked on farms as a child, growing wheat and herding sheep. He also did some labouring work.
The Iran-Iraq war had ended by the time of his childhood but he told Dr Furst that he saw people returning to his village who had been maimed and had other war-related disabilities.
Mr Darabi was unable to obtain an identification card because of his family origins and so he was not a citizen of his country of birth. Dr Furst described him as "stateless". (The document used by Serco to keep track of detainees lists his nationality as "Iranian", but there is no evidence before me as to how that information was generated.) This resulted in him and his family not having access to government services, such as education and health care. He claimed to have been harassed and, on one occasion, assaulted by the Basij, a domestic paramilitary security force who, Mr Darabi has claimed, regard Kurdish people as the enemy. That was what he told Ms Zilenkov. He told Dr Furst that he "denied being directly threatened by security forces in Iran".
Mr Darabi left Iran and came to Australia, via a boat from Indonesia, on 29 January 2010. He described the sea voyage as traumatising. He told Dr Furst that he came to Australia as "he had no hope in his home country, coming to Australia because he wanted to study, get married, have children and build a future for himself". He added, "I had heaps of hope then. I have no hope now". Why he chose to come to Australia without prior approval was not explained.
His account to Dr Furst included that the conditions on Christmas Island, where he spent about six months, were difficult, it being overcrowded and where detainees were self-harming and suiciding.
He was transferred to Villawood in mid-2010. He claimed that conditions remained poor and he lost hope in the immigration and visa application process. He heard about people committing suicide and witnessed two people killing themselves, including his neighbour and friend, an Iraqi detainee, who killed himself in a bathroom. His best friend tried to commit suicide and he was aware of a Fijian detainee who jumped from a roof and died. In this respect, the history parallels that of Mr Razai.
Mr Darabi told Dr Furst that he found the trauma of these events very difficult to come to terms with. He became increasingly depressed and demoralised and entertained thoughts of suicide himself.
Dr Furst's report then refers to Mr Darabi's account of the offence. It included that his application for a visa had been rejected on three occasions. In his evidence before me he said he "had been rejected three or four times" (15.3.13 at T38.12). This is not quite accurate; it was, in fact, twice. The account to Dr Furst also included that "he had been in detention for about two years at the time". When speaking about the offence to the author of the Pre-Sentence Report he said "I was so sick and tired of being in the centre for three years" (emphasis added). Later in that report it is said that he attributed his participation in the offences to having been held in detention for approximately two years. The truth is he had been in detention since arriving in Australia for 15 months.
He said that he was "under a lot of pressure" and "went to the roof to talk", meaning speak to the DIAC and human rights advocates. He "wanted to tell them I was here. I wanted to be listened to".
He told Dr Furst that he felt ashamed of his actions and "expressed remorse". "It was a shameful thing. Not a good thing. A bad start". Exactly what he said when he "expressed remorse" is not further disclosed. When cross-examined by the Crown Prosecutor he acknowledged that protesting in such a violent way was unacceptable; that the actions of himself and the other detainees caused a lot of distress to a lot of people; and that throwing large and heavy tiles off the roof would cause people to fear for their safety. He added, "I accept and I regret what I did and I'm very sorry" (15.3.13 at T39).
His credibility suffered, however, when he denied seeing one of the main perpetrators of violence from the roof, Majid Parhizkar, throwing a large number of tiles into the centre of the compound. The video footage shows that anyone in the vicinity, as Mr Darabi was, could not have failed to have noticed. He also claimed, incredibly, not to have seen a raging fire on the soccer field or detainees running around spraying fire extinguishers into the air. He claimed not to remember that there were many more Serco staff in the compound than normal; that there was a lot of noise and yelling by detainees; and that detainees were chanting "freedom" (15.3.13 at T40).
Mr Darabi has received treatment for depression and anxiety, seeing a psychologist once or twice a week and having been prescribed sleeping medication for about seven or eight months last year.
Dr Furst recorded that there was no history of drug or alcohol abuse, no significant medical history, and no family history of mental illness.
Contact with his family has been confined to about once every six months. His mother is said to be old, sick and confined to bed and this makes Mr Darabi feel guilty about his inability to help her and his sister.
Dr Furst made the psychiatric diagnosis that Mr Darabi was suffering from Major Depressive Disorder. He remarked that Mr Darabi's "depression and sense of demoralisation appears to have been caused by his prolonged detention after arriving in Australia by boat on 29/01/10, over three years ago, and the lack of any pathway towards a protection visa or back to his homeland, as he is essentially stateless".
It was Dr Furst's opinion that Mr Darabi's participation in the disturbance at the VIDC on 20 April 2011 was "probably driven by his high levels of emotional distress, depression, and the frustration he was experiencing at the time, and his sense of hopelessness and demoralisation. He was also motivated by an apparent wish to tell the authorities what was happening to him and voice his plight. His actions also appear to be a matter where Mr Darabi acted out of character in the exceptional circumstances that he found himself in."
Dr Furst set out a variety of recommended treatments for Mr Darabi, both in the community and in a custodial environment. Generally they involve engagement with psychiatric and psychological counselling as well as with vocational, educational or social activities. Antidepressant medication is also indicated as an option.
Depression, social isolation, poor English skills and the trauma of being detained since arriving in Australia three years ago are the bases of Dr Furst's opinion that "a custodial sentence is likely to weigh more heavily on Mr Darabi than the average inmate".
Custodial and immigration history of the offender Darabi
Mr Darabi arrived at Christmas Island on 31 January 2010. On 13 May 2010, he was found not to be a refugee by a DIAC Refugee Status Assessment. This finding was confirmed upon an Independent Merits Review on 13 January 2011 and on 10 February 2011 he lodged an application for judicial review.
That judicial review application was pending at the time of the offence.
On 25 May 2011, the Federal Magistrates Court of Australia dismissed the application: Darabi v Minister for Immigration & Anor [2011] FMCA 371.
On 17 July 2012, a Criminal Justice Stay visa was refused. The following day, advice was received from the Protection Support Section that Mr Darabi had received a positive Post Review Protection Check assessment. I understand that this leads to the possibility of the Minister granting a visa.
Mr Darabi has not made any formal request to be removed from Australia.
Consideration of community detention
On 26 September 2011, Mr Darabi was found to meet the guidelines for referral to the Minister for Immigration and Citizenship for consideration of community detention. However, on 3 February 2012 he was no longer considered for such detention due to the fact he had been placed in the custody of Corrective Services NSW following being charged and refused bail. I can only assume that the question of community detention was not agitated after he was released on bail because a ministerial guideline meant that it would be futile to do so.
Findings in relation to the offender Darabi
I am satisfied in respect of Mr Darabi, and it was so conceded, that no sentence other than one of full-time imprisonment is appropriate to reflect the objective gravity of the offence.
I have some misgivings about Mr Darabi's credibility and that raises a question as to whether I should accept what he said in evidence as well as what he told the authors of the reports that are before me. On balance, however, I am prepared to accept the diagnosis by Dr Furst that Mr Darabi was suffering from Major Depressive Disorder. I do so because it is entirely consistent with the history of Mr Darabi's life before coming to Australia and his experiences since arriving here. Further, whilst I am somewhat sceptical about his account of what motivated his offending behaviour, I do accept that anger and frustration about the circumstances and length of his detention (putting aside whether it was justified), together with his depression, were significant causative factors.
That conclusion leads me to find that there is some, but not great, reduction in his moral culpability for the offence and the need for denunciation of his conduct. A little less weight should be assigned to the need for general deterrence. I also accept that a custodial sentence would weigh more heavily upon Mr Darabi than it would for the average prison inmate.
The lack of criminal antecedents means that Mr Darabi is entitled to a finding of good character and would justify findings that he has good prospects of rehabilitation and is unlikely to re-offend.
I am not satisfied that he is genuinely remorseful because he has not been entirely frank in his evidence to me and in the histories given to the report authors.
There will be a reduction of sentence in the order of about 12.5 per cent to reflect the utilitarian benefit flowing from the plea of guilty that was entered late last year.
I am satisfied that there are special circumstances warranting the setting of a non-parole period that is less than the usual three-quarters of the total term. In this respect I have had regard to his subjective case generally, but in particular to the fact Mr Darabi has spent a significant period in immigration detention and is now being sentenced to a term of imprisonment. There is also the better prospect of him receiving more favourable treatment for his mental health issues in the community than in the custodial environment.
Personal circumstances of the offender Mansoor
The material relating to the personal circumstances of the offender Mansoor comprises a report by Dr Olav Nielssen, forensic psychiatrist, and sundry documents including a Refugee Status Assessment ("RSA") report within a folder of material (Exhibit 1). Mr Mansoor did not give evidence in the sentence proceedings.
Mr Mansoor was born in 1988 and is an only child. His father died when he was 11 years of age and he was forced to leave school and work as a labourer and in a grocery shop to support his mother. He has never married and has no children.
The RSA report of May 2010 records him as claiming to be "stateless". (The Serco roll lists his nationality as Iraqi.) His parents were born in Iraq but were expelled to Iran in 1980 because of their ethnicity, Faili Kurdish, and because they did not have any identity documents. His father was told that the family should return to Iraq because they did not belong in Iran. However, the family remained in Iran but did take steps to obtain identity documents for fear of deportation.
Mr Mansoor gave as his reason for leaving Iran that he was an undocumented Faili Kurd living illegally in Iran. He claimed to have been harassed and mistreated by the Basij. The worst example cited in the RSA report was when in December 2009 he was approached by Basij officers and asked for his identity document. When he failed to comply with the request, he was taken to a mosque where he was detained for some hours and beaten. This is said to have been the impetus for him to leave Iran. He left on a flight to Malaysia on 14 January 2010 and ultimately arrived at Christmas Island on 31 January 2010. He was transferred to Villawood on 17 July 2010.
The RSA resulted in a finding that Mr Mansoor's claimed fears of persecution by reasons of race or religion were not well founded. There was no information that would suggest that Faili Kurds were subject to discrimination or persecution for reasons of their ethno-religious identity. It was accepted that he had been detained and punished by the Basij because he was unable to show an identity card. But that was pursuant to the law applying to all people in Iran and had nothing to do with Mr Mansoor being a Faili Kurd.
In a letter of 1 March 2013, Mr Mansoor said that he came to Australia "in hope of a better and brighter future, safe future". He expressed his deep regret about being involved in the events of 20 April 2011 and was "truly sorry if I offended or scared anyone". He explained that he had no intention to offend or hurt anyone; he simply wanted his voice to be heard. He felt forgotten, had faced "rejection after rejection of my case", and "was surrounded by negativity and found it very difficult to cope". He described to Dr Nielssen how he felt frustrated and angered by his long detention.
The history provided to Dr Nielssen also included that the government in Iran was hostile to people living in Kurdish dominated areas, prevented them from living in peace and failed to provide basic services such as health care and education to allow them to live comfortably. He was afraid of the government and came to Australia to "escape from persecution". The material in the RSA report contradicts such claims. I do not know which is correct.
A mental health nurse assessed Mr Mansoor on 11 February 2011. The "presenting problems" were that he was "convinced he has cancer and wants to die in Iran" and "expresses feelings of hopelessness and helplessness regarding his immigration pathway". While noting that he presented as angry, upset and with depressed mood, under the heading "Risk Assessment" (related medical notes indicate that this related to any risk or harm to himself or others) she wrote "Low at present".
In late March 2011, some concern was expressed by a Mental Health Team Leader and noted by a person in the Detention Health Operations Section of DIAC about the possibility of Mr Mansoor experiencing some mental health issues. He had received a negative Independent Merits Review following the RSA, and he was refusing to engage with the mental health team.
An external psychologist alerted Serco staff on 23 May 2011 to a concern that Mr Mansoor was at "high risk of suicide". According to Dr Nielssen, Mr Mansoor "reported some thoughts of committing suicide and said that he seriously contemplated ending his life on one occasion, soon after he came down from the roof".
Dr Nielssen saw Mr Mansoor in January 2013. He made a diagnosis of Adjustment disorder with depressed mood, in partial remission. It was his opinion that as at 20 April 2011, the symptoms were "severe and suggested that he was at high risk of committing suicide". He noted that he had been advised to consider treatment with medication but had declined. The rider to the diagnosis, "in partial remission", was on the basis that Mr Mansoor's mood had improved, he was animated in his manner in the interview, looked physically fit and did not appear especially depressed.
Dr Nielssen concluded his report with the following expression of opinion about Mr Mansoor's mental state at the time of the offence:
From the information available to me, it seems likely that Mr Mansoor was in an acutely distressed state in the period leading up to the offences and was contemplating suicide at that time. ... [H]is perception of the events and his ability to consider the likely consequences of his actions is likely to have been severely affected by his own lack of concern regarding his own safety and his readiness to commit suicide.
Custodial and immigration history
Mr Mansoor arrived on Christmas Island on 31 January 2010. On 10 May 2010, it was determined that he was not a refugee. An Independent Merits Review concluded on 14 February 2011, that he was not a refugee. On 3 March 2011, he lodged an application for judicial review with the Federal Magistrates Court of Australia.
It was while the latter application was pending that the offence occurred.
The application for judicial review was heard on 6 July 2011 and judgment was given on 22 July 2011: SZPZI v Minister for Immigration & Anor [2011] FMCA 530. It was found that the independent merits reviewer had made an error of law. The matter was then referred to the Independent Protection Assessment Office for a new assessment.
On 1 March 2012, the fresh assessment again resulted in a finding that Mr Mansoor was not a refugee. Again, an application for judicial review was made to the Federal Magistrates Court. That application was dismissed on 4 December 2012: SZRLQ v Minister for Immigration & Anor [2012] FMCA 1159. An appeal against the dismissal was lodged with the Federal Court of Australia and was heard on 14 March 2013. Judgment has been reserved.
Consideration of community detention
On 3 August 2011, while Mr Mansoor's case was awaiting fresh consideration by the Independent Protection Assessment Office, his case was also referred for consideration of community detention. On 30 November 2011, he was assessed as meeting the guidelines for referral to the Minister and a submission to the Minister was drafted. However, it was determined that the Minister would not approve community detention for detainees who were facing criminal charges.
Another request for community detention was received by DIAC from Mr Mansoor's partner on 12 June 2012. I interpolate that this is the only mention in any of the material to him having a "partner". The request was not referred for ministerial consideration because of the pending criminal charges.
Lastly, it is said that as at 13 March 2013, "a community detention referral is currently in progress but has not yet been sent for assessment against the guidelines".
So, Mr Mansoor has not been considered by the Minister for community detention.
He has not made any formal request to be removed from Australia.
Findings in relation to the offender Mansoor
As with the other offenders, I am satisfied that no sentence other than one of full-time imprisonment is appropriate to reflect the objective gravity of the offence.
I am satisfied that Mr Mansoor's involvement in the offence was attributable, in part, to his mental state. There is no reason not to accept the assessment by Dr Nielssen that I have quoted earlier. As a result, there is a lesser degree of moral culpability for the offence than would otherwise be the case and there is less need for a sentence to denounce his conduct. There should also be less emphasis in the sentence on the need for general deterrence. I also accept that a custodial sentence will weigh more heavily upon Mr Mansoor. Dr Nielssen considers that his mental health has significantly improved from what it had been, but he is a man who has been held in a distressing state of uncertainty in immigration detention for over three years and will have significant difficulties in then adjusting to a different and more onerous custodial environment.
I accept that Mr Mansoor is a person of otherwise good character, there being no record of previous convictions. With the improvement in his mental state it would seem that he has good prospects of rehabilitation and is unlikely to re-offend.
Mr Mansoor did not give evidence which makes it somewhat difficult to assess the genuineness of the expression of remorse in his letter. He bears the onus of proof and it only has to be on the balance of probabilities. In the light of all of the material before me about Mr Mansoor I am left with the impression that he probably is genuinely remorseful.
There will be a reduction of sentence on account of the utilitarian benefit derived from his plea of guilty but it will be in the order of 5 per cent because of the late stage at which it was entered.
There are special circumstances warranting a lesser non-parole component of the sentence. Mr Mansoor will need a longer period of parole supervision to assist his adjustment into the community after release (even if it is back into immigration detention), particularly given that he will have been held in one form of custody or another for a relatively lengthy period.
Matters relevant to each offender
I observed when sentencing Mahmood Dadash that an affray can occur in infinitely varied circumstances, but that it was clear that this one was particularly nasty. I also said that a matter relevant to the assessment of the seriousness of the offence was that many people would have been terrified by what occurred and their safety was put at risk. I am fortified in those views by what I have heard in the course of the trial over which I am presently presiding. A number of the Serco officers, who were public officials simply trying to do their job, have been significantly affected and that is not surprising. As the events in the compound descended into mayhem they were cowering behind an office wall trying to avoid the torrent of tiles being hurled from the roof, while others on the ground were running rampant with fire extinguishers and setting fire to bedding, tables, chairs and other items in the middle of the soccer field. Ultimately the detainees succeeded in forcing the staff to evacuate just as the office building was torched.
Affray is an offence that can be committed by one person but in this case there were a significant number who joined in the protest that had been commenced by Mansoor and Darabi, many of whom were actively involved in the use of violence. Others not using violence supported those who did by shouting and yelling things such as "fuck Australia", "fuck immigration" and "fuck Serco" and chanting over and over, "freedom". It is impossible to ignore the context when assessing the individual culpability of the present three offenders.
In making this last finding, I am mindful that the offenders are being sentenced for offences of affray, not of riot. A person convicted of riot bears some vicarious responsibility for the collective damage caused by the conflagration, regardless of his or her level of personal involvement beyond satisfying the elements of the offence. Participation in an offence of affray, even if committed in the circumstances of a large-scale disturbance, does not necessarily allow a similar inference, partly because s 93C does not require proof of, or a plea to, common purpose. This distinction was discussed by R S Hulme J (Spigelman CJ and Smart AJ agreeing) in R v Huynh [2000] NSWCCA 18 at [27]-[29], distinguishing McCormack, Merlo, Mulholland & Nance v R [1981] VR 104; (1980) 2 A Crim R 405 at 108; 409. Nevertheless, the facts in this case establish that the context of the disturbance was inextricable from the offending conduct. It has not been contended otherwise.
I have said that no sentence other than one of full-time imprisonment is appropriate to reflect the objective seriousness of the offence. That remains the case notwithstanding findings I have made about there being a reduced moral culpability and about other matters arising from the influence of the offenders' mental condition upon their offending behaviour. Punishment, deterrence, denunciation and making the offenders accountable for their actions remain factors to be taken into account, albeit with somewhat less influence in the assessment of the sentences for these men.
A matter that I noted in the sentencing of Mr Dadash was the theoretical possibility that an offence of affray may be dealt with summarily in the Local Court where the most that can be imposed is a sentence of imprisonment of 2 years. That does not mean that this Court is limited to such a sentencing range but it is a matter of some weight. Dadash was in the same position as these offenders in that the Crown accepted a plea of guilty in lieu of the more serious charge of riot.
Sentencing of Mahmood Dadash
Mahmood Dadash pleaded guilty on 23 November 2012 to an offence of affray which the Crown accepted in lieu of a charge of riot. He was sentenced to a term of imprisonment of 1 year 9 months with a non-parole period of 1 year 4 months. Without his plea of guilty it would have been a sentence of 2 years. See R v Dadash [2012] NSWSC 1511.
Mr Dadash was involved in the events of 20 April 2011 in the Fowler Compound in a number of ways. He abused and swore at the activities officer who was trying to start a game of soccer in the early afternoon. During the evening he was one of a number of detainees who sprayed fire extinguishers at members of staff and who took garbage bins onto the soccer field where their contents were emptied and set on fire.
Mr Dadash was held in corrective services custody for about a year until he was granted bail and returned to immigration detention. He was 28 years old and had no previous convictions. There was evidence of prior good character. I did not accept that he was genuinely remorseful.
There were signs of post-traumatic stress disorder but no psychiatric diagnosis of such. I did not accept that this was causally related to his offending behaviour. I did accept that his involvement in the events of 20 April 2011 arose from anger and frustration at having been held so long in immigration detention, he having arrived at Christmas Island in January 2010. I was not satisfied that he was a leader in what occurred; it appeared that his involvement was influenced by the actions of others.
A psychologist found that Mr Dadash also exhibited signs of significant levels of depression and anxiety. Whilst I was not persuaded that there should be any moderation of the extent to which general deterrence should be taken into account, I did accept that a custodial sentence would weigh more heavily upon him because of his mental state. Separation from his wife and daughter who remained in Iran was a significant factor.
A particularly significant matter in the case of Mr Dadash was that he had applied to be returned to his home country but his application had been denied whilst criminal proceedings were pending against him. For this reason I accepted that his sentence should be backdated to 22 April 2011. That meant that he was entitled to immediate release on parole and that his total sentence expired on 21 January 2013. The presence of this factor in the case of Mr Dadash is the reason why I have noted in respect of each of the present offenders that they have not made any application to be removed from Australia.
Proportionality of sentences
It is necessary to consider the cases of each of the present offenders together with that of Mahmood Dadash in order to assess sentences with an appropriate degree of proportionality.
Putting aside the findings as to the mental condition of the present offenders and its partial contribution to their offending behaviour, I do not believe that there is any material difference in the level of objective seriousness of the offences of Mansoor and Darabi. Razai's offence is at a slightly lower level of seriousness because he only joined the others on the roof in the early evening whereas Mansoor and Darabi started their protest at the beginning of the day.
The individual actions of these three men, and of Dadash, were different but in terms of the seriousness of the offence, particularly having regard to the context in which the events occurred, it would be pedantic, tedious and of no practical utility to, for example, assess the gravity of one man throwing a tile against another man spraying and throwing a fire extinguisher at a member of staff, or the gravity of one man throwing more tiles from the roof than another.
The subjective material relating to the present offenders varies, as would be expected, but the significance of such material to the assessment of sentence is broadly similar.
In the end, I have concluded that the same sentence should be imposed upon Mansoor and Darabi and a slightly lesser sentence upon Razai. The starting point for each will be less than that for Dadash.
A significant point of distinction between Dadash and these men is that there was a basis upon which to backdate his sentence to the time that he was removed into corrective services custody and to take into account his subsequent time in immigration detention whilst on bail. If it had not been for the pending proceedings he most likely would have been released from detention and sent home.
That consideration does not apply to the present offenders. Their sentences can be backdated only to reflect the periods they spent in gaol prior to being granted bail. The fact that they might have been considered for community detention if it had not been for the pending proceedings is too uncertain for it to be taken into account in terms of identifying a period by which sentences might be backdated. However, the fact is that they have remained in a custodial environment and have been denied an opportunity for consideration of living in the community under a form of conditional liberty. It is a matter I have taken into account in my assessment of the overall sentence.
Sentences
Darabi
Convicted.
Sentenced to a term of imprisonment comprising a non-parole period of 8 months and a balance of the term of the sentence of 8 months.
The commencement date of the sentence is 11 January 2013. The offender is to be released on parole upon the expiration of the non-parole period on 10 September 2013. The total sentence expires on 10 May 2014.
That is a sentence of 16 months. If not for the plea of guilty it would have been one of 18 months.
Mansoor
Convicted.
Sentenced to a term of imprisonment comprising a non-parole period of 9 months and a balance of the term of the sentence of 8 months.
The commencement date of the sentence is 6 February 2013. The offender is to be released on parole upon the expiration of the non-parole period on 5 November 2013. The total sentence expires on 5 July 2014.
That is a sentence of 17 months. If not for the plea of guilty it would have been one of 18 months.
Razai
Convicted.
Sentenced to a term of imprisonment comprising a non-parole period of 7 months and a balance of the term of the sentence of 6 months.
The commencement date of the sentence is 15 March 2013. The offender is to be released on parole upon the expiration of the non-parole period on 14 October 2013. The total sentence expires on 14 April 2014.
That is a sentence of 13 months. If not for the plea of guilty it would have been one of 15 months.
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Decision last updated: 18 April 2013
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