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7
Supreme Court 7 December 2012

R v Dadash

[2012] NSWSC 1511

Assault & violence
CRIMINAL LAW SENTENCE AFFRAY

Citation: R v Dadash [2012] NSWSC 1511
Court: Supreme Court of New South Wales
Date: 7 December 2012
Judge: R A Hulme J

Background

The offender was an Iranian national held at the Villawood Immigration Detention Centre as an unauthorised entrant. He had fled Iran after destroying an image of the Supreme Leader, an act punishable by death under Iranian law, and had been in immigration detention in Australia since early 2010.

On 20 April 2011, a prolonged and chaotic disturbance erupted at Villawood involving approximately 80 to 90 detainees. Two detainees climbed onto the roof of a building and began throwing roof tiles at staff employed by Serco, the contracted operator of the facility. The unrest escalated throughout the day and into the night, ultimately resulting in multiple buildings being destroyed by fire, with restoration costs estimated at approximately $9 million.

The offender participated in several incidents during the disturbance: confronting and yelling at staff members, discharging fire extinguishers in the direction of staff, throwing the empty extinguishers toward staff, and assisting in stockpiling rubbish that was subsequently set alight. He was originally committed for trial on charges of riot and affray. The Crown ultimately accepted a plea of guilty to affray in full satisfaction of the indictment.

  • What was the appropriate sentence for affray under s 93C of the Crimes Act 1900 (NSW), having regard to the nature and seriousness of the offender's conduct?
  • What weight should be given to the offender's background, mental health, and personal circumstances in mitigation?
  • How should pre-sentence custody be calculated, including periods spent in both corrective services custody and immigration detention?
  • Whether special circumstances existed justifying a reduction in the proportional non-parole period.
  • Whether the possibility of deportation was a relevant sentencing consideration.

Decision

Hulme J characterised the offender's conduct as genuinely serious. The offender remonstrated aggressively with staff who were attempting to restore order, used fire extinguishers in a way that inhibited the management of fires, threw the empty extinguishers at or toward staff, and contributed to the stockpiling of rubbish that was set alight. The court rejected the offender's attempts in evidence to minimise his role and justify his behaviour, finding his account inconsistent with the tendered statement of facts.

The court accepted significant mitigating factors. The offender had no prior criminal history, had experienced genuine trauma arising from his circumstances in Iran and his prolonged detention, and had entered a plea of guilty. His guilty plea reduced what would otherwise have been a total sentence of two years to one of one year and nine months.

On the question of pre-sentence custody, the court was satisfied that the offender's continued immigration detention after being returned to Villawood in April 2012 was referable to the outstanding charges rather than to his immigration status alone. The Australian Federal Police had advised that his removal to Iran would be inappropriate while charges remained on foot. The court therefore backdated the entire sentence to 22 April 2011 to account for the full period in custody.

The court declined to make a finding of special circumstances, despite submissions referencing the offender's first period in custody, his isolation, prior good character, and mental health. Hulme J also explicitly excluded from consideration the fact that the offender was liable to deportation, consistent with established sentencing principle.

Orders Made

  • Convicted of affray contrary to s 93C of the Crimes Act 1900 (NSW).
  • Sentenced to a total term of 1 year and 9 months imprisonment, comprising a non-parole period of 1 year and 4 months and a balance of term of 5 months.
  • Sentence backdated to 22 April 2011.
  • Offender to be released on parole forthwith, with the parole period having commenced on 22 August 2012 and the total sentence expiring on 21 January 2013.

Key Takeaways

  • Affray under s 93C of the Crimes Act 1900 (NSW) carries a maximum penalty of 10 years imprisonment; the sentencing court's approach here reflected the serious group context of the offence while accounting for the offender's limited individual role relative to the broader disturbance.
  • A liability to deportation is not a relevant consideration in determining an appropriate sentence, and Hulme J expressly excluded it from the sentencing calculus.
  • Pre-sentence custody can encompass time spent in immigration detention, not only corrective services custody, where that detention is shown to be referable to the outstanding criminal charges rather than to the person's underlying immigration status.
  • The Supreme Court treated the theoretical availability of summary disposition in the Local Court (with its two-year maximum) as a matter of some weight in the sentencing exercise, without treating it as a ceiling on the available range.
  • Downplaying involvement and attempting to justify conduct during sentencing proceedings can affect the court's assessment of an offender's prospects of rehabilitation and acceptance of responsibility.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 93C (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases: No specific cases were cited in the text of the judgment.