R v Chenarjaafarizad [2013] NSWSC 388

Supreme Court New South Wales

Medium Neutral Citation: R v Chenarjaafarizad [2013] NSWSC 388 Hearing dates: 11 April 2013 Decision date: 17 April 2013 Jurisdiction: Common Law - Criminal Before: R A Hulme J Decision: Sentenced to imprisonment for 2 years with a non-parole period of 1 year Catchwords: CRIMINAL LAW - sentencing - affray - offence committed while in immigration detention EVIDENCE - expert evidence - where psychiatric opinion based on history of dubious credibility Legislation Cited: Crimes Act 1900 (NSW) Migration Act 1958 (Cth) Cases Cited: 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 Category: Sentence Parties: Regina Saied Chenarjaafarizad Representation: Counsel: Mr G Farmer SC with Ms J Single (Crown) Mr D Price (Offender) Solicitors: Commonwealth Director of Public Prosecutions Archbold Legal File Number(s): 2011/146305

Judgment 1HIS HONOUR: Mr Saied Chenarjaafarizad stands for sentence for having committed the offence of affray at the Villawood Immigration Detention Centre ("VIDC") on 20 April 2011. 2Affray 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.

The offender's immigration history 3The offender came to Australia as what is termed an "irregular maritime arrival" on 31 January 2010 and was detained pursuant to the Migration Act 1958 (Cth). He was held on Christmas Island before being transferred to the VIDC on 17 July 2010. 4The VIDC is an approved place under the Migration Act 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. 5There are three compounds within the VIDC; the offender was housed in 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. 6The offender applied for a protection visa and this required that his status as a genuine refugee be assessed. On 24 June 2010 he was advised of a negative outcome to that assessment. He then applied for an "independent merits review" but on 24 March 2011 it was again determined that he was not a genuine refugee. He was not notified of that determination until 13 May 2011. On 24 February 2012 the offender applied for a Criminal Justice Stay visa but this was refused on 17 July 2012. A Post Review Protection Check assessment was initiated in April last year that remains to be finalised. In the normal course of events, I understand that if there was a favourable outcome of that assessment the applicant could then be considered for the granting of a visa. 7The offender's case has been referred for consideration as to whether he could be held in "community detention". Resolution of that issue has been deferred pending finalisation of the present proceedings.