Citation: R v Darabi, Mansoor & Razai [2013] NSWSC 387
Court: Supreme Court of New South Wales
Date: 5 April 2013
Judge: R A Hulme J
Background
Three men detained at the Villawood Immigration Detention Centre (VIDC) under the Migration Act 1958 (Cth) appeared for sentencing after pleading guilty to affray. Each had arrived in Australia in early 2010, been housed in the Fowler Compound at the VIDC from July 2010, and had unresolved immigration status as at the date of the offending.
The offending took place on 20 April 2011, during a large-scale disturbance at the VIDC. Two of the three offenders climbed onto the roof of the Macquarie Building from early morning, where they threw roof tiles into the compound and at staff, made threats to kill, and encouraged other detainees to join the disruption. The third joined later in the evening as the situation escalated. By around 11.15pm, staff had evacuated the compound and fires were lit in multiple buildings.
The Crown's Statement of Facts described conduct spanning roughly sixteen hours. His Honour noted at the outset that it was unnecessary to precisely identify every individual act of each offender in order to assess their respective criminality.
Legal Issues
- What objective seriousness should be attributed to each offender's role in the affray, given the extended and evolving nature of the disturbance?
- What weight, if any, should be given to the context of immigration detention when assessing the offending?
- Whether the period of immigration detention served prior to sentencing was relevant to sentence, including whether it warranted backdating of any sentence or other adjustment?
- Whether special circumstances existed, justifying a variation to the standard ratio between the non-parole period and the balance of the term of imprisonment?
Decision
His Honour assessed the objective gravity of the offending as serious. The disturbance endangered staff over many hours, involved repeated tile-throwing, threats, and ultimately prompted a full staff evacuation. However, the court distinguished between the three offenders' levels of involvement: the first two were on the roof for the bulk of the day and were the most active participants, while the third joined only late in the evening.
The court considered the context of prolonged immigration detention as relevant background, but did not treat it as a mitigating factor that reduced the gravity of the offending itself. His Honour acknowledged that the frustration of uncertain and extended detention could inform an understanding of why the disturbance occurred, without excusing the conduct.
A significant issue at sentencing was how to account for the time each offender had spent in immigration detention prior to being taken into corrective services custody. His Honour found that immigration detention, while not equivalent to a custodial sentence, represented a meaningful restriction on liberty. Because the pending charges had prevented these offenders from being considered for community detention, that denial of a form of conditional liberty was taken into account in the overall assessment of sentence, even though it did not result in backdating beyond the periods spent in gaol before bail was granted.
Special circumstances were found in each case. The extended period of restricted liberty in immigration detention, combined with the need for a longer parole period to assist reintegration, justified departing from the standard non-parole to balance-of-term ratio under the Crimes Act 1900 (NSW).
Orders Made
Darabi
- Convicted of affray
- Total sentence: 16 months imprisonment (non-parole period of 8 months, balance of 8 months)
- Sentence commences 11 January 2013; parole from 10 September 2013; sentence expires 10 May 2014
- Discount applied for plea of guilty (sentence would otherwise have been 18 months)
Mansoor
- Convicted of affray
- Total sentence: 17 months imprisonment (non-parole period of 9 months, balance of 8 months)
- Sentence commences 6 February 2013; parole from 5 November 2013; sentence expires 5 July 2014
- Discount applied for plea of guilty (sentence would otherwise have been 18 months)
Razai
- Convicted of affray
- Total sentence: 13 months imprisonment (non-parole period of 7 months, balance of 6 months)
- Sentence commences 15 March 2013; parole from 14 October 2013; sentence expires 14 April 2014
- Discount applied for plea of guilty (sentence would otherwise have been 15 months)
Key Takeaways
- Affray committed in the context of a large-scale detention centre disturbance can attract sentences measured in months rather than years, with the precise term calibrated to each offender's individual role and degree of participation across the relevant period.
- Immigration detention prior to sentencing does not straightforwardly substitute for time served in a corrective services facility, but the Supreme Court treated the denial of the opportunity to be considered for community detention as a relevant factor in the overall sentencing exercise.
- Special circumstances were established here on the basis of an extended period of restricted liberty in immigration detention combined with the rehabilitative purpose of a longer supervised parole period, permitting departure from the standard non-parole ratio.
- Sentences were backdated only to reflect time actually spent in gaol before bail was granted, not to the commencement of immigration detention. The court found the prospect of earlier release from immigration detention to be too uncertain to justify a longer backdating period.
- A plea of guilty produced a concrete discount in each case, with the court expressly identifying what the sentence would have been absent the plea.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 93C (affray)
- Migration Act 1958 (Cth)
Cases
- 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