Citation: R v Chenarjaafarizad [2013] NSWSC 388
Court: Supreme Court of New South Wales
Date: 17 April 2013
Judge(s): Hulme J
Background
The offender was an Iranian national who arrived in Australia as an irregular maritime arrival in January 2010 and was detained at the Villawood Immigration Detention Centre (VIDC) under the Migration Act 1958 (Cth). His applications for a protection visa and subsequent independent merits review were both unsuccessful. He remained in immigration detention at the VIDC's Fowler Compound when a major disturbance erupted on 20 April 2011.
The disturbance began with two detainees climbing onto the roof of the Macquarie Building and throwing roof tiles at Serco staff. Over the course of the day and into the evening, the situation escalated significantly. The offender participated in several incidents during the peak of the unrest, including grabbing a staff member, discharging a fire extinguisher in the direction of staff, setting a bonfire in the compound, and dismantling soccer goal posts.
By around 11 pm, the Fowler Compound was in chaos. Staff were forced to retreat behind an office wall as detainees threw tiles, set the office on fire, and damaged multiple buildings. Total damage across the VIDC was estimated at approximately $9 million, though the offender's direct involvement was confined to the specific incidents described above. He was charged with affray under s 93C of the Crimes Act 1900 (NSW), which carries a maximum penalty of 10 years' imprisonment.
Legal Issues
- What weight, if any, should be given to psychiatric evidence based on a history the court considered of dubious credibility?
- What were the objective and subjective factors relevant to the appropriate sentence for affray committed during immigration detention?
- Whether the sentence structure could or should be arranged to avoid the offender failing the character test under s 501 of the Migration Act 1958 (Cth)?
- Whether special circumstances existed justifying a reduction in the non-parole period below the standard statutory proportion?
Decision
Hulme J accepted that the offence was serious and that the offender's conduct contributed significantly to the mayhem in the compound. The court noted that circumstances of provocation or grievance, including frustration at the refugee determination process, carried limited weight in mitigation. The objective gravity of the offence was considerable, given the violence directed at staff, the scale of the disturbance, and the potential for serious injury.
On the psychiatric evidence, the court treated the expert opinion with caution. The psychiatrist's conclusions were based substantially on a history provided by the offender, aspects of which the court found to be of doubtful credibility. The court nonetheless accepted that the offender suffered from anxiety and depression, and that these conditions were relevant to his subjective circumstances.
Defence counsel submitted that the sentence should be structured to avoid triggering the character test under s 501 of the Migration Act, which can lead to visa refusal where a person is sentenced to 12 months or more. The court rejected this approach. Section 501(6)(b)(aa)(i) provides that a person also fails the character test if convicted of an offence committed while in immigration detention, regardless of sentence length. The offender failed the character test on that basis alone.
The court found special circumstances existed, comprising the offender's anxiety and depression, the more onerous nature of his custody (having transitioned from immigration detention to prison), and the benefit of a longer supervised parole period to support treatment of his psychological conditions. These factors justified reducing the non-parole period below the standard one-third proportion.
Orders Made
- Convicted of affray contrary to s 93C of the Crimes Act 1900 (NSW)
- Sentenced to a total term of 2 years' imprisonment, comprising a non-parole period of 1 year and a balance of term of 1 year
- Sentence backdated to commence 1 June 2012
- Release on parole ordered upon expiration of the non-parole period on 31 May 2013
- Total sentence to expire 31 May 2014
- Direction to Corrective Services NSW to note evidence of prior self-harming behaviour on the warrant
Key Takeaways
- Under s 501(6)(b)(aa)(i) of the Migration Act 1958 (Cth), a person convicted of an offence committed while in immigration detention automatically fails the character test, irrespective of the length of the sentence imposed.
- Psychiatric expert evidence carries reduced weight where the underlying history provided by the subject is found by the sentencing court to be of dubious credibility, even if some aspects of the diagnosis are accepted.
- A sentencing court may find special circumstances justifying a reduced non-parole period where the offender's transition from immigration detention to prison makes custody more onerous, and where a longer parole period would better facilitate treatment of psychological conditions.
- Frustration with immigration processes and grievances arising from the refugee determination system carry limited mitigatory weight when a court is sentencing for serious offending that endangered the safety of staff.
- The Supreme Court confirmed that the character test consequences under the Migration Act cannot be structured around by careful sentence length management where an independent statutory trigger, such as offending in immigration detention, already applies.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 93C (affray)
- Migration Act 1958 (Cth), ss 501, 501(6)(a), 501(6)(b)(aa)(i), 501(7)(c)
Cases:
- McCormack, Merlo, Mulholland & Nance v R [1981] VR 104; (1980) 2 A Crim R 405
- R v Dadash [2012] NSWSC 1511
- R v Darabi, Mansoor & Razai [2013] NSWSC 387
- R v Huynh [2000] NSWCCA 18