Citation: R v Ali; R v Amiri; R v Feili; R v Haidari; R v Parhizkar [2013] NSWSC 871
Court: Supreme Court of New South Wales
Date: 28 June 2013
Judge: R A Hulme J
Background
Five men held at the Villawood Immigration Detention Centre were sentenced following their convictions for riot and affray arising from events on 20 April 2011. One offender (Ali) was found guilty of affray; the remaining four (Amiri, Feili, Haidari, and Parhizkar) were found guilty of riot. All were detainees held under the Migration Act 1958 (Cth) in the Fowler Compound at Villawood.
On that evening, a large-scale disturbance erupted in the compound. Detainees climbed onto rooftops, threw tiles at Serco staff, set fires to rubbish and furniture on the soccer field, discharged fire extinguishers, and ultimately forced all staff to evacuate. An office was set alight through a broken window and fires were later set in several buildings. The estimated cost of damage to the Fowler Compound and other areas of Villawood was approximately $9 million.
Each of the five offenders played a distinct role in the disturbance. Their individual conduct ranged from climbing onto the roof and throwing tiles, to directing staff to leave, to participating in the dismantling of soccer goal posts and moving in a menacing manner with a post held above his head (in Ali's case). The sentencing proceedings were one of several related matters before Hulme J arising from the same incident.
Legal Issues
- What sentences were appropriate for riot (maximum 15 years' imprisonment) and affray (maximum 10 years' imprisonment) in the context of a violent protest within an immigration detention facility?
- What weight should be given to the context of lawful immigration detention, including the conditions and length of detention, as mitigating or explanatory factors?
- Were the reports of the Refugee Review Tribunal admissible on sentencing, and if so, for what purpose?
- Whether special circumstances existed for each offender justifying a variation to the standard ratio between non-parole period and balance of term, particularly given ongoing immigration detention and mental health considerations.
Decision
Hulme J sentenced each offender individually, having regard to their specific role in the disturbance, their personal circumstances, time already spent in custody (including immigration detention), and relevant mitigating factors. The sentences reflected the serious nature of the offending, particularly the threats to staff, the destruction of Commonwealth property, and the coordinated and prolonged character of the riot, while also acknowledging contextual factors particular to immigration detainees.
On the admissibility of Refugee Review Tribunal reports, the court held that such reports were admissible not for the truth of the refugee claims they contained, but as evidence of prior statements and claims made by the offenders. This distinction was significant: the reports could inform the court about what an offender had previously said, but did not constitute proof of the underlying facts asserted in those claims.
The court accepted that the conditions of immigration detention and the frustration arising from prolonged administrative detention were relevant context for understanding the offending, though they did not excuse it. The court also took into account that the pendency of criminal proceedings had likely prolonged the offenders' time in immigration detention, acknowledging this in an unquantifiable but favourable way.
Special circumstances were found to apply for each offender given their circumstances, including mental health conditions and the nature of immigration detention. This justified a higher than usual ratio of parole period to non-parole period. The court backdated sentences to account for time already served in custody.
Orders Made
- Ali: Convicted; directed to enter into a 2-year good behaviour bond (with conditions including appearance before the court if called upon and notification of any change of address within 7 days).
- Amiri: Convicted; sentenced to imprisonment with a non-parole period of 1 year 2 months and a balance term of 8 months, dated from 10 August 2012; eligible for parole on 9 October 2013; total term expiring 9 June 2014.
- Feili: Convicted; sentenced to imprisonment with a non-parole period of 1 year 10 months and a balance term of 1 year 2 months, dated from 10 August 2012; eligible for parole on 9 June 2014; total term expiring 9 August 2015.
- Haidari: Convicted; sentenced to imprisonment with a non-parole period of 1 year 2 months and a balance term of 8 months, dated from 28 April 2013; eligible for parole on 27 June 2014; total term expiring 27 February 2015.
- Parhizkar: Convicted; sentenced to imprisonment with a non-parole period of 1 year 10 months and a balance term of 1 year 2 months, dated from 5 June 2012; eligible for parole on 4 April 2014; total term expiring 4 June 2015.
Key Takeaways
- Refugee Review Tribunal reports are admissible in sentencing proceedings as evidence of prior statements and claims made by an offender, but not as proof of the truth of the underlying refugee claims contained within them.
- The context of lawful immigration detention, including the conditions and length of that detention, is a relevant sentencing consideration, though it does not excuse violent or criminal conduct arising from protests about that detention.
- Special circumstances justifying a departure from the standard non-parole to balance-of-term ratio may be established where an offender in immigration detention has mental health conditions and faces an uncertain post-custodial environment, including the possibility of continued administrative detention.
- Time spent in immigration detention prior to a custodial sentence can be taken into account by backdating the sentence, and the court may also recognise (in an unquantifiable way) that pending criminal proceedings likely extended the period of immigration detention.
- Where multiple offenders are sentenced for the same incident, the court assesses each individual's role and personal circumstances separately, producing a range of outcomes even within the same offence category.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 93B (riot), 93C (affray)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Migration Act 1958 (Cth)
Cases
- R v Dadash [2012] NSWSC 1511
- R v Darabi, Mansoor & Razai [2013] NSWSC 387
- R v Chenarjaafarizad [2013] NSWSC 388
- R v Abdollahi [2013] NSWSC 428
- R v Feili [2013] NSWSC 492